there was a fence that separated the Blue Beacon truck lot from the wooded area --
THE COURT: There's been testimony about there's a fence there now and there wasn't at the time.
MR. FOGLEMAN: If there's been that testimony and the diagram reflects there wasn't a fence there. (TR 2240)
MR. FORD: The drawing is only relevant if it shows the scene at the time.
MR. FOGLEMAN: The testimony was that there was not a fence at the time.
THE COURT: You can point that out in your argument that the fence was not there.
(RETURN TO OPEN COURT)
DIRECT EXAMINATION OF LISA SAKEVICIUS BY MR. FOGLEMAN
I work at the Arkansas State Crime Lab. I'm a criminalist at the Arkansas State Crime Lab and I do hair and fiber comparisons. (TR 2241) I am an expert in my field. (The witness was submitted as an expert in her field without objection by either defense attorney.) I received items from the Medical Examiner's Office for examination. State's Exhibits 80 is the ligature from Michael Moore. (TR 2242) State's Exhibit 82 is the ligature from Chris Byers. State's Exhibit 81 is the ligature from Steve Branch. I examined the ligatures for the knots for hairs and for fibers. State's Exhibit 80 is the Michael Moore ligature. The left wrist consisted of a square knot, and I also removed a skin tag from
[512]
inside the loop off the left leg. The right leg knot was a series of four half hitches, and the right wrist knot was a series of three half hitches. (TR 2243) On the left wrist of Michael Moore, we had a square knot and on the left ankle of Michael Moore there was a square knot. The right wrist had three half hitches. The right ankle had four half hitches. The left side had a particular type of knot, square knot, and on the right side was a different knot. The only difference between the wrist and ankle was an additional half hitch. On State's Exhibit 81 of Steve Branch, the right leg knot was a series of three half hitches and a loop around the leg was tied twice. The right wrist was a half hitch with a figure eight. The left leg knot was a series of three half hitches. The left wrist knot was a series of three half hitches. On Steve Branch on the left wrist we had three half hitches. (TR 2244) On the left ankle we had three half hitches. On the right wrist we had a half hitch with a figure eight. Then on the right ankle we had three half hitches with an extra loop around the leg. On the left side on the left wrist we had one type of knot and on the left ankle you have the exact same knot. There were three half hitches in both places. On the right side on the wrist we had one half hitch with a figure eight. On the ankle we had three half hitches with a loop on the leg. On the right side we had something a little different. (TR 2245) State's Exhibit 82 of Chris Byers on the left the knots were a series of two half hitches on the
[513]
wrist. On both the left and right ankle and wrist you had double half hitches on all knots. On Chris Byers, every knot was the same.
In my duties with the Crime Lab I also test for fibers. Generally we have two sets of clothing, sometimes involving bedding. I will use a piece of tape to collect fibers from these items, and I will attach the tape to a glass slide. I'll clip a standard from all the applicable items, ones that have good colors or fiber types in them. I will take this standard and smear it across a glass slide also, and then I will compare my questioned slides with the standard to see if I can find any that are like that. (TR 2246) After I find something that looks good, I will take it off the slide and do a microscopic on it to make sure it looks similar and it looks like the basic fiber type involved. If it passes this test, then I put it on a microspectrophotometer. Here I look to see that they have the same curves. If they pass this test and they are a synthetic type fiber, then I will put them under an instrument called a fourier transform infrared spectrophotometer. Here I see if the basic polymers that make up the fibers are the same. Polymers are synthetic material usually made out of petroleum products, like plastic. Primary transfer is if I touched one of you and then did a tape lift and I found fibers from my item on you, that would be considered a primary transfer. A secondary transfer would be if you touch someone else and then tape lifts were done on
[514]
that person and fibers from me were found on that person, that would be considered a secondary transfer. You get secondary transfers when you have got clothes hanging together in the closet. I examined some items that were submitted by the West Memphis Police Department. (TR 2247) State's Exhibit 45 is clothing that I examined. In the lab we examine our items on clean sheets of white paper, and then we fold them back up and put them back in the sack. I have noted on the condition of the clothing items when I received them at the lab. E-3, Exhibit 45, is a pair of blue jeans. They were found inside out and they were heavily soiled. They were still slightly damp because we took all the items out and left them on white paper, and we covered them with white paper for them to dry over the weekend before I started my analysis. (TR 2248) The same sacks were used that they were received in. I examined that clothing, E-3, State's Exhibit 45, for fibers. I examined Exhibit 8 and Exhibit 44. I examined all those items of evidence. On June 3, 1993, Kermit Channel and I helped search Echols residences. (TR 2249) As a result of my prior examination of fibers found on the victims' clothing, there were particular fiber types that I was looking for. I had examined the slides from the victims and trying to find similarities in fiber types which could have come from the constituents of the clothing they were wearing -- which could have come possibly from an assailant. I had in my mind a number of fiber types that I had seen. I recovered the item
[515]
in State's Exhibit 85 from Echols' residence. State's Exhibit 88 is a bag. I recovered that item from Baldwin's residence. After those items were recovered, I made a comparison with items from the victim's clothing. (TR 2250) I used these items as the standard and I compared them against the slides of the victim. When I found fibers that looked similar, I took them off and did the microscopic examination and then I did the microspectrophotometer examination. Then I did the fourier transform for thread analysis. On Exhibit 45, the blue pants, I found a green polyester fiber from E-79 which would be Exhibit 85. They were similar fibers not that it came from them. E-5, State's Exhibit 8, is the Cub Scout cap. A green polyester that was microscopically similar to the fibers used in the construction of E-79, a shirt. The shirt that was recovered from the Echols' residence. (TR 2251) State's Exhibit 92 is a photograph of this shirt. I recovered the shirt. The fiber content of that shirt is cotton polyester blend. On State's Exhibit 8, the Cub Scout cap, I found one green polyester fiber which was microscopically similar to this shirt. (TR 2252) On State's Exhibit 45, E-3, I found a green cotton and a green polyester fiber microscopically similar to this same item. On the pair of blue pants, State's Exhibit 45, I found one cotton and one polyester which were microscopically similar to the fibers contained in the same shirt. I participated in the search of Baldwin's residence. State's Exhibit 88, a bathrobe, was
[516]
found at the Baldwin residence. I am not suggesting that Echols wore this little shirt or that Baldwin wore the bathrobe. (TR 2253) This is where secondary transfer may come into play. I found a single red rayon fiber on Exhibit 44, which is E-2, microscopically similar to that used in the construction of the robe, State's Exhibit 88. Being submerged in water is very detrimental to the recovery of fibers, hairs, and other trace evidence. There was a single Negroid hair recovered off of a sheet used to cover the Byers child. (TR 2254) There were no other Negroid hairs recovered. The fibers in State's Exhibit 88, were found on E-2 which was a black and white shirt which is State's Exhibit 44. After I recover something on the tape, I use a stereoscopic examination. This magnifies the fibers 20 times their normal size. If I feel they look similar to the standard, I recover them off the slide and I do a microscopic examination. Here my examinations were run from 100 times to even 400 times magnification of their normal size. I will look at the diameters, the shape of the fiber, their color, I will see if there are delustrants there. A delustrants is a compound called titanium dioxide. They are small particles that are placed into the polymer before the fibers are made and these will cause the fiber to have a duller appearance. (TR 2255) They won't be so bright in the garment when it is finished I also look at optical properties of the fibers. Under cross polarized light, the background that I will see in the fiber
[517]
will be black. The fiber itself if it has any birefringence characteristics at all, it will have a color to it. It should be different for different generic fiber types such as rayon, polyester, nylon. I'll study the sign of inlongation. The sign of inlongation is another optical property that some low birefringence fibers have. If the fibers pass all the tests and are similar in all these manners, then I will take them and do a microspectrophotometer analysis. We'll look at the dye characteristics and where the dyes absorb light and it will give me a curve. If these curves from the standard and the unknown match and if they are synthetic types, then I will go ahead and do the fourier transform analysis. If the polymers match, then I consider the fibers similar. We don't do the fourier transform infrared analysis on the one cotton because cotton is cotton. (TR 2256) On the other 3 fibers, the results were the same or similar.
CROSS EXAMINATION OF LISA SAKEVICIUS BY MR. PRICE
My June 29, 1993, report contains a paragraph that states:
It is pointed out that fibers do not possess a sufficient number of unique individual microscopic characteristics to be positively identified as having originated from a particular item to the exclusion all others.
This means that if you were to go to Wal-Mart, you'd see a rack of clothing and all the clothing on it is the same. It could be that all these fibers were made at the same time, and they'll have the same characteristics. (TR 2257) And any
[518]
number of people might have that garment in their house. So if I find a fiber similar to another item, then it doesn't necessarily mean it came from that item. It could have come from one of these other items that was hanging on that same rack. All fiber reports contain this statement. The FBI recommends that this paragraph be included in reports. I am familiar with a book, "Forensic Science Handbook" by Richard Saferstein. I suggested that the defense attorney purchase this book to pick up some additional information about hair and fiber comparisons. This is an accepted text in the field. (TR 2258) On page 211 of his book it states:
The limits of human hair comparison should be explained to the jury even though the questioned hairs even though the questioned hairs may be similar in all respects to the questioned hair and dissimilar to most other hair, the forensic examiner can never say with certainty that there might not be another individual who possesses similar hair.
Although this is a paragraph on human hair comparisons it also applies to fibers as well. The two are similar in nature although hair is a different analysis. That book recommends that the limits of hair analysis should be explained to the jury. So the same concept should apply with fiber evidence Although this deals with hair, the same general information applies to fiber evidence. There was the one green cotton fiber and this was recovered somewhere on E-3, the pants of Moore. (TR 2259) The E-3 item, the pair of blue pants were inside out. This was microscopically similar to item number 79, the blue shirt that was recovered at Echols house. This
[519]
is a size 6 Geranimals shirt. There were 2 green polyester fibers that were recovered from the Cub Scout hat. (TR 2260) One was recovered from the E-3, the pants, and one was from E-5, Moore's Cub Scout hat. These were microscopically similar to the polyester fibers that make up that Geranimals shirt. If there is any type of Geranimal shirt that has the same cotton/poly blend, the same colors, the same company, the same dye lots, it would also be microscopically similar to this shirt. If there were other clothing made by the same company by the same dye lots of a different size, then that also could be microscopically similar to the questioned fibers. (TR 2261) Three red cotton fibers microscopically similar to those used in the construction of E-92, a tee shirt found at Echols house, were recovered from E-1, the Boy Scout shirt, E-3, the same pair of pants, and BR-1, a bag found out at the crime scene. My notes indicate that there were several items found in this bag including a pair of blue jeans, a black thermal undershirt, pair of white socks, two BIC razors, one plastic bag and one tan short sleeve shirt. (TR 2262) On June 3, 1993, the day Echols was arrested, I went to his house and searched for fibers. After I performed tests and issued my report on June 29th, I discovered that these 3 red cotton fibers were microscopically similar to the red tee shirt that I found at the home of Echols on June 3, 1993. It is not common practice for me to the homes of the victims to see if there is any items there that might possibly match questioned
[520]
hairs and fibers that I find. Actually, none of this case has been common practice for me. This is the first time I ever participated in a search of Defendants' or victims' homes. I indicated that on June 3, well, the report was issued on June 29th. On December 20, 1993, I went to the former homes of the victims, Byers and Moore. At that time, I took possession of an item at the Moore home, MM-1, which would have been one red shirt, this is listed in my January 17, 1994, report. (TR 2263) I tested the fibers found on the red shirt MM-1 and compared these to the 3 questioned cotton fibers that I referred to earlier. They were also similar to the questioned fibers. I cannot exclude MM-1 as the source of those red fibers. The red tee shirt found at Echols' house and the red shirt found at Moore's house and these three red cotton fibers that were found at the crime scene are all microscopically similar. If there are other red cotton fibers in which the dyes are similar that are out there, they could also be microscopically similar. I do not know if the West Memphis Police Department ever asked me to check any possible fibers that may have been on a Kershaw knife. I have examined a lot of knives. If my initials are not on this particular knife then I probably did not examine it. (TR 2264) In addition, there was one Negroid hair that I came in contact with in connection with this case. This hair came from FP-10 which was a white sheet that was used to cover the body of Byers. When I received that particular Negro type hair, I have not
[521]
been able to compare it with any other hairs that I might have been sent during this examination. Sometimes in performing hair comparisons I receive a hair that belongs to a police officer that might be out at the crime scene to rule out that particular police officer as the source of a particular hair. I did in this case. I never received any Negro type hairs from any West Memphis police officers to compare with this questioned hair. (TR 2265)
CROSS EXAMINATION OF LISA SAKEVICIUS BY MR. FORD
State's Exhibit 44, E-2, is a polka-dotted shirt. When I received that shirt, it was inside out. I do not recall where I recovered the fiber from. I do not know whether it was on the inside, outside, front, back, sleeve. I don't label my tapes as to the exact area only that they came from a particular item. With respect to the pair of pants that I testified about the fiber, it could have come from inside the pocket. I don't believe I pulled the pockets inside out. I just taped the outsides of the garment. I previously gave to Baldwin's attorneys the slides that I prepared and that another examiner prepared. (TR 2266) I can identify the markings that are on slides E-2 and E-99. It has a case number, the item number, the fact that it is a questioned fiber. It is a red rayon, and I have it labeled as a match with E-99 which is the fiber that you found on this shirt. I believe that this is the entire fiber. (The fiber was introduced as Defendant Baldwin's Exhibit 1 without
[522]
objection.) (TR 2267) I can identify this next slide by the case number, the item number, the fact that it is a known fiber from the item that is listed. It is identified as red rayon and I have it mounted in permount. That is one of the slides that I prepared after taking fibers from this bathrobe. I took some of the fibers off of the robe and mounted them under this slide. (The slide was introduced as Defendant Baldwin's Exhibit 2 without objection.) Where the 2 circles are on the end is where you actually need to look. (TR 2268) So those exhibit stickers will not affect the ability to look at them. A comparison microscope is two microscopes that are bridged together with another optical instrument that has mirrors. It takes the image from each microscope and puts them in the same field of view so that you can examine the fibers side by side so that you can look at them at the same time. When I compare these two fibers together, I would slide one end on one side and one end on the other side and you can look through the eyepieces of the microscope and see both fibers at the same time. When I did that in this case, they looked the same to me. At that point I am looking at their color and their diameter. I don't believe there is a pattern of delustrants in these. (TR 2269) Titanium dioxide is something that you add to the fiber to take some of the sheen out of it. I did not see any of those in these fibers. If they were there, the pattern that they would have in the fiber, would be important. Sometimes you can see differences
[523]
in pattern. I'd have to look at a great number of the standards to determine if there is a followable pattern. If there had been testimony in this case that someone went to a grocery store and got a whole bunch of grocery paper bags and people started putting clothing directly from the water and into these bags at the scene, I do not know if there is any way to determine if there is a fiber inside the bag that could attach to the clothing. I do not know about the manufacturing process or packaging of grocery bags. We use a clean piece of white paper to put the clothes back in. I want to make sure that the paper does not place any fibers on to the garment itself. (TR 2270) The Crime Lab takes great care to make sure that that paper is not a source of evidence. Nothing was done by me or my lab to make sure there was nothing inside the paper sack itself. All evidence submitted to the lab is in paper sacks like this. We take it for granted that they are clean. When I looked at the hairs under the visual medium of the comparison microscope, where I could see them both at the same time, they looked the same. At that time, I looked at the qualities of color, shape, and striations that made them seem the same to me. In this particular fiber the cross section is not completely round. It is sort of cloud or daisy shaped, and under the microscope this will look like lines or striations. Both fiber types were striated. (TR 2271) It is that sort of like if I took one little piece of carpet from a rug and I could untwist it then there are several different
[524]
things twisted around it to make one piece. It is more like looking at a six-sided pencil lengthways and you can see lines going down it. I will see these lines that when you look at the end you can see that the pencil is not completely round. It has got sides to it. The way that is done with a manmade fiber is by putting it through some type of extrudent where they press it through little bitty holes, and the shape of the hole will affect the shape of the string. On rayon the drying process also imparts some of the striations to the fiber. I altered both fabrics during my testing. What I do when I do my fourier transform infrared analysis, I flattened the fiber. This causes my spectrum that I get to be much cleaner. It helps me to see the peaks a lot better. I do this process to the standard and to the questioned fiber. I used a scalpel to flatten them. (TR 2272) I placed the fiber on a glass slide, and I squished it. Baldwin's Exhibit 1, was the questioned fiber. We do not have one that is unsquished. The only one we have left is one that I altered. After I used the comparison microscope and I saw they had the same shape, the color and striations. Then I put them under the microspectrophotometer, and examined the color in more detail to see if the dye is blue or red. That is polarized light. You can make it polarized, but that is not the purpose of that instrument. I used the microscope where you can put the slide and turn it around, where the slide spins. That test is covered in the microscopy. (TR 2273) I used polarized light.
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I used polarized light to look at the birefringence and the sign of inlongation. When I put the questioned fiber on the microscope that spins, I don't recall if the fiber changed color. Every time I put two slides of fibers on the microscope and spin them both around to see if they change color because it is standard procedure. I took both of these slides and put them on a microscope that uses that type of light, spun them around to make sure they change color. In this case that was exact. They changed colors in the same pattern. (TR 2274) I put the fiber through two processes to draw a graph. In order for them to be similar, you would want to find a graph pattern like that. I can draw the type of graph one would expect to find if they had the same dyes and colors. I have the infrared graph and microspectrograph I did. The top one is E-2, the standard, while the bottom one is the questioned. In my opinion, they are identical. This one is after I altered the fiber. This other one is before. I am not testifying that the fiber that I found on this shirt came from this robe. (TR 2275) I went to the crime scene and saw the ditch. There was no water in the ditch at the time I was there. I would not agree that water itself, with the stuff that floats in water, could be the source of this red fiber. I can't say what the source of the red fiber is. I can not say it's from this robe. Only that they are similar. I do not have any evidence that Baldwin tied those knots. I do not have any evidence of who tied those knots. I'm not
[526]
saying that I found a fiber on this shirt that came from this robe.(TR 2276)
REDIRECT EXAMINATION OF LISA SAKEVICIUS BY MR. FOGLEMAN
The graph before I flattened the fiber is marked as Exhibit 93. The after graph is marked as Exhibit 94. These are two different analyses and two different tests. The microspectrophotometer is the particular type of analysis here which is for the dye analysis. I can write "after" infrared analysis on State's Exhibit 94. That is for the polymer, not polymer in this case, but the chemical structure of the fiber. If the fiber is not flat, sometimes it can scatter the beam as it goes through the fiber, and it gives you a noisy spectra. It's easier to read and you get a crisper spectra if you flatten it. (TR 2277) On State's Exhibits 94, the top graph relates to the fiber from the standard. "KF" stands for known fiber. "QF" stands for questioned fiber. The bottom is the questioned fiber which I got off of this shirt which is State's Exhibit 44. I don't recall if I flattened the whole fiber or just a portion of it. When I flattened the fiber, it lightened the color because you spread the color out sort of like a glass of water versus the ocean. The more color that you put in one spot the more you can see it. When I flattened it, that spreads it out making the color thinner or lighter. I am not saying that Baldwin tied those knots. (TR 2279) I am not saying that he didn't tie the knots. There was a question asked about the cotton fiber and the match and then
[527]
also about some red cotton fibers found that match not only a shirt from Damien but also a garment from the Moore's house. There's not a difference in the ability of a match of cotton fibers as opposed to a synthetic fiber but there's less significance of the match. There is less significance in a match of cotton fibers. Cotton is much more common. In fact there are some types of cotton very light colors or blue denim we don't examine or analyze for, because they are too common. A fiber like that found in State's Exhibit 88, the robe, is not as common in my experience in examinations in the lab as cotton fibers. On the known slide that has been introduced in evidence, you can see a little red spot which contains more than one fiber. (TR 2279) Baldwin's Exhibit 1 contains 1 fiber. I came to West Memphis at the request of the police department to get some fibers for comparison from the victims' homes. I got those from the Moore's house and the Byers' house. I did not you get any from the Branch's house. I believe their residence was not intact anymore or they were not in town. The disposable razors and a number of items were listed as BR-1. According to my notes, I have one razor, has a broken head. All items packaged together in a brown paper bag. No attempt was made to discriminate where the fibers originated, meaning which particular item, because they were all packaged together. They were wet and moldy. This clothing in BR-1 was moldy. (TR 2280) None of the victims' clothing that I got was moldy. The red cotton fibers
[528]
originally reported matched the garment from Echols' home but after further investigation I concluded that it also matched the garments from the Moore's home. I can not say which home that came from.
MR. FORD: I object to the question because he keeps using the language "match." She's testified they are not matches but they are microscopically similar, and I'd ask that he not intimate that they're matches when that has not been her testimony. I object to the form of the question.
MR. FOGLEMAN: I'll rephrase.
THE COURT: Rephrase your question.
The microscopic characteristics are similar. The red cotton fibers were similar in characteristics to a garment from Echols' house. (TR 2281) After further investigation I found that those fibers could also have come from a garment from the Moore's house. In looking at the fibers from clothing from the Baldwin's house, the Echols' house, the Misskelley's house, the Moore's house and the Byers' house, I did not find any other garments with fibers that were similar in characteristics to Exhibit 88, the robe. I did not find any other fibers that were similar in characteristics to the shirt.
RECROSS EXAMINATION OF LISA SAKEVICIUS BY MR. FORD
There were two partially broken razors in the bag. don't recall if the bottom part of the guard or the handle was broken off. I work in Little Rock. (TR 2282) I drove from
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Little Rock to West Memphis to two homes but I didn't drive to Blytheville to check the residence of another home. I never went to Blytheville to look in the home that Branch lived in. I never did go to the residence of Branch's father, whose mom and dad are divorced, who still lived in West Memphis. I only went to two of the four residences of the victims, families. There are two Branch households. This is a woman's robe. I think I found that robe in a closet in the bedroom. (TR 2283) I do not know if it was hanging, folded, laying on the floor. I believe Baldwin's Exhibit 1 is the entire fiber. Although I flattened part of it, this is it in its entirety. I never looked to determine if there was a red fiber in this knife that might be microscopically similar to the one you found in this shirt. I have not labeled that item as being looked at. If there had been testimony previously that there had been a red fiber visible in that knife then I never looked at that red fiber to see if it matched the fiber in Baldwin's Exhibit 1. If it was visible to the naked eye, it probably did not match, but I did not look.
(A BENCH CONFERENCE OUT OF THE HEARING OF THE JURY)
THE COURT: I want one of you to ask, or I will, whether or not fibers are commonly transferred from washing and drying in a household. (TR 2284) What was your question?
MR. DAVIDSON: The fiber that was visible in there the other day is no longer there.
THE COURT: What do you want me to do?
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MR. DAVIDSON: I don't know, but Peretti looked at it, said it was there, and transferred it over.
MR. FOGLEMAN: I saw a red fiber in there, but I don't remember if it was in there when we got the knife.
THE COURT: I don't have any idea how to answer that question.
(RETURN TO OPEN COURT)
BY MR. FOGLEMAN:
In the secondary transfer of fibers, when clothes are washed together fibers are redistributed around. That is another way of getting secondary transfer of fibers to wash the clothes together and then get fibers from another. If I had a fiber from some other of my clothing that got on this shirt and came in contact with someone else it could transfer. (TR 2285)
RECROSS EXAMINATION OF LISA SAKEVICIUS BY MR. FORD
It is also possible that the red fiber could have been on that young man's shirt that morning when he put it on and went to school because it could have gotten in the dryer from some other source in his own household. I can not say what the source is of the fiber. That shirt being washed and dried with another shirt could be the very source of the red fiber transfer depending upon which household was that from. They never identified what shirt that came from. Washing and drying could be the source of the fiber, and he could have had the red fiber on that shirt. Some of the households were
[531]
examined for this fiber type. If this is one of the households examined for that fiber type, I would say it didn't come from washing his clothes there. If it came from the other household, it could have. Then that could be the source. If that person was from one of those households. (TR 2286)
REDIRECT EXAMINATION OF LISA SAKEVICIUS BY MR. FOGLEMAN
State's Exhibit 95 contains my item BR-1 which is clothing that was recovered from the pipe near the scene. That is the clothing that I talked about that had some disposable BIC razors that were moldy. The handle is broken on the BIC razor. When I examined them before, it had these guards on them. (TR 2287) Doctor Peretti had testified about a blue fiber in Moore's hands. I compared it to the fibers that I collected from the mortuary from a blanket. I did the same test that I did on the other items. The nylon fiber from the hand was microscopically similar to the fibers from the blanket that came from the funeral home. (TR 2288)
