The Court: Court will be in session. Call your next witness.

Fogleman: Your Honor, the state would call Dr. Duke Jennings.

Price: May we approach, your Honor?

The Court: Yeah.

(bench conference)

Ford: Is your Honor dealing with this as a rebuttal witness?

The Court: I'm ruling that I'm letting him call the witness, period.

Ford: But as a rebuttal witness?

The Court: I made my rule, you can figure it out. How is that? Use it either as a direct or as a rebuttal, I don't care. I'm allowing him to call it. That's the discretion I report and that's what I'm doing.

Ford: Whether - but you're not indicating whether he is rebuttal or whether it's reopening the case?

The Court: What does it matter?

Ford: You're - but you're not indicating that, are you?

The Court: I'm not saying one way or the other. I'm just saying I'm going to allow him to call the witness.

Ford: Let the record reflect that I have asked for the court for a specific ruling and it will not give me one.

Price: We join in the request, your Honor.

The Court: Ok.

(open court )

Davis: Your Honor, this witness may need to be sworn in.

(sworn in)

Davis: Would you state your name for the ladies and gentlemen of the jury, Doctor?

Jennings: Richard Duke Jennings.

Davis: Ok. And Dr. Jennings, what is your occupation? Where are you emplyeed and where do you live?

Jennings: I'm a pathologist - in a private practice of pathology here in Jonesboro and I live here in Jonesboro.

Davis: Ok. And do you practice with a group called Doctors Pathology Service here in Jonesboro?

Jennings: Yes, I do.

Davis: Ok. And could you describe for the jury, your background, education, and training in the field of pathology?

Jennings: I finished uh - medical school in 19 - uh - 69 at uh - at Arkansas. I uh - finished uh - a period uh - in the Air Force in '73 as a flight surgeon. Uh - began my pathology residency in Portland, Oregon. Concluded that in 1977. And uh - at that point, came back to Arkansas. Practiced uh - 6 and 1/2 years in Elderell and for the last 10 years in Jonesboro.

Davis: And could you explain to the ladies and gentlemen of the jury what type of training you recieved in the - as far as the training and education in the area of forensic pathology?

Jennings: Um - private practice pathologists uh - and forensic pathologists do - begin with essentially the same uh - training the first 4 to 5 years. And recently there's been a change of the 5th year which is usually elected - you can choose what you do in that 5th year of training. Uh - and through that much of the training, the training is similar. But I did 3 months of forensic pathology training in Oregon under prominant forensic pathologists whereas someone who elects to do full time forensic pathology uh - would ordinarily do about one year of uh - of fellowship after his general pathology training.

Davis: Did you spend some time uh - as doing forensic pathology or autopsies for the state of Arkansas?

Jennings: Yes, I did. Uh - actually, probably also in Oregon during the time with uh - that forensic pathologist, participating in about 50 forensic autopsies. After moving to Elderell we were still under the system whereby I was say a deputy medical examiner. During that time, I did perhaps 150 to 200 forensic autopsies before the system was changed to our current uh - central medical examiner system.

Davis: Ok. And have you familiarized yourself and looked at and done some extensive research in the area of estimation of time of death that pathologists are asked to do at times?

Jennings: Yes, I have.

Davis: Ok. And from your review of all the written materials uh - that you've reviewed, has there been any dramatic changes or any new criteria that are used in estimating time of death that have come up since your time in doing uh - autopsies?

Ford: Your Honor, before we proceed, I would like to regard the witness if he is going to proceed with getting to his ultimate testimony - I would like to determine whether or not he's qualified to give an opinion.

The Court: Alright.

Davis: Your Honor, this is an area that I'm asking him about in order to base his opinion on and this is part of his qualification.

The Court: Alright, go ahead and continue. I'll allow you to follow dire if that's what you're asking - before he renders an opinion, then -

Ford: - That's right.

Davis: - Let me back up and rephrase that question as off - were thinking. Have there been any changes since the time you were working as uh - on a regular basis as a forensic pathologist - have there been any changes as far as the criteria used in making a determination as the estimate of time of death?

Ford: Your Honor, I'm going to object to that question because it calls for a hearsay response. He has to have talked to somebody else in the last 16 years since he left this field, to ask them has there been any changes. He doesn't know that, he's having to tell us what someone else told him. That's hearsay.

The Court: You asked him if there's been any changes - criteria upon which he's basing his opinion?

Ford: Yes, your Honor.

The Court: Well, upon the body in general, I'm not sure I understood your question.

Davis: Ok. Maybe it was improperly phrased, your Honor. Dr. Jennings, you indicated that you have read and researched extensively into the area regarding estimate of time of death.

Jennings: Yes, I have.

Davis: Ok. And in your research, did you come across any changes in the criteria that are used in estimating the time of death that have cropped up since your time as a forensic pathologist?

Ford: Same objection, your Honor. He is asking him to state what he read - another source.

The Court: Overruled.

Jennings: I would answer that a two part answer. First of all, uh - I sensed that in reading recent review articles establishing time of death and recent text books that they would wish for a new perameter to measure and the uh - second part to that answer, there is nothing meaningful that has come forth that helps in establishing time of death. There is nothing in fact that is very good and it has not changed uh - in this period of time.

Davis: Ok. And how many different volumes uh - articles and things of that nature have you reviewed regarding the estimate as to time of death?

Jennings: I reviewed uh - all of the uh - forensic pathology text books I could find available, which was uh - 3 uh - 4 different volumes. I also had some material uh - faxed to me from uh - a recent text books from the University of Mississippi Medicine Forensic Pathology Department. I have read uh - probably 10 to 12 articles uh - review articles concerning time of death.

Davis: Ok. And do you frequently uh - on issues of this nature, uh - consult with your mentor, I believe it was Dr. Brady that you worked under in Oregon?

Jennings: Yes, I did consult with him.

Davis: Your Honor, at this time we would submit Dr. Jennings as an expert.

Ford: Are you a forensic pathologist?

Jennings: I'm not a forensic pathologist.

Ford: Are you a board certified forensic pathologist?

Jennings: No, I couldn't be board certified if I'm not a forensic pathologist. I am not board certified in forensic pathology, no sir.

Ford: Ok. You have never been board certified in forensic pathology, have you?

Jennings: I have never been board certified.

Ford: Were you aware that Dr. Peretti was a board certified -

Fogleman: - Your Honor, that's not in evidence. In fact, I think the evidence would be to the contrary.

The Court: (mumbles) I don't remember, but -

Jennings: - I don't know that he's board certified or not.

Ford: Ok.

Jennings: I know he's done a fellowship by his testimony.

Ford: Alright. How long has it been since you did any uh - study of forensic pathology in your education? How long ago was it that you did this 3 months of forensic pathology?

Jennings: That was part of my residency which concluded in 1977.

Ford: How long ago - when - the residency was 4 or 5 years, how long ago did you do that 3 months of training?

Jennings: That was in the last year, as I recall. It has - it was 1977 when I concluded.

Ford: 19 - so the 3 months of the forensic pathology that you studied was in 1977?

Jennings: That's not all that I've studied. That was my period in residency.

Ford: That's - that was my question. That was in 1977?

Jennings: That's correct.

Ford: Ok. Now, what do you do on a day to day basis as a pathologist when you go to work?

Jennings: On a day to day basis, the uh - bulk of my work is to look at surgical specimens - see if they're cancer or not cancer. Inflammatory stat - making a diagnosis, uh - interpretation of blood and urine tests, and uh - by and large, being a physician for physicians - they consult me in helping to establish diagnosis.

Ford: Ok. Pathology is the study of disease, isn't it?

Jennings: That's correct.

Ford: Ok. So, you're looking at - you're looking at slides that are prepared following a surgery to see what it may show?

Jennings: That is one part of my work.

Ford: How long has it been since you've performed an autopsy? A forensic autopsy.

Jennings: A forensic autopsy uh - the last forensic autopsy that I recall doing was uh - concerning a uh - motorcycle gang assassination here in Jonesboro - since I've been here. I - it's been a few years ago, at that time we were covering a hospital in Kennet and I did a forensic autopsy there. So, it's since I came to Jonesboro, I don't know the exact time lapse. It's been greater than 4 years.

Ford: Ok. And how long has it been since you've conducted a forensic autopsy for the state of Arkansas?

Jennings: I think you could find answers to when the system changed, I don't know the answer to that.

Ford: More than 10 years?

Jennings: It's been more than 10 years because I moved here 10 years ago.

Ford: And you have not done a forensic autopsy for the state of Arkansas in the last 10 years?

Jennings: I have not done a forensic autopsy for the state of Arkansas in the last 10 years.

Ford: Ok. All of this extensive research that you did, when did you do it?

Jennings: Well, it has certainly been more intense in the last few days. I read, as most do - on a continuing basis. Uh - since I was consulted, I have - I have read more.

Ford: Was all this extensive research after Dr. Peretti testified?

Jennings: All the extensive - the most intensive part was obviously after he - after this case began.

Ford: Ok. So after Dr. Peretti testified, you were contacted by the prosecutors and you went out and boned up on what the current knowledge is of uh - of forensic pathology - is that right?

Jennings: That is right.

Ford: Ok. When you - in the last 10 years since you've been here, does your job - are you required and called upon to determine time of death?

Jennings: Not with any regularity anymore.

Ford: Ok. So you don't - you don't do that as a regular part of your job, the way Dr. Peretti does - do you?

Jennings: I do not.

Ford: Have you ever been certified as a - in court, as an expert as a forensic pathologist?

Jennings: I have indeed.

Ford: Ok, and how long ago was that sir?

Jennings: That was during the period when I was working in Elderell. I don't recall the last time.

Ford: More than 10 years ago?

Jennings: I've been here 10 years.

Ford: Ok.

Price: We have no questions of this witness.

The Court: Alright, you may proceed.

Ford: Your Honor, we would object to him giving any opinions to the jury of forensic pathology as he is not a board certified forensic pathologist and has - does not do - does not practice forensic pathology. Therefore, he's not qualified to give an opinion in that field.

The Court: Overruled. You may proceed.

Davis: Doctor, did you - are you currently serving on any boards for the state of Arkansas?

Jennings: Uh - yes, I am.

Davis: And what board is that?

Jennings: Uh - the Governor has appointed me to be on the state crime board - state crime lab board.

Davis: Ok. And that is a board that oversees the operations and functions of the Arkansas state crime laboratory?

Jennings: That's correct.

Davis: Of which the medical - state medical examiner is a part?

Jennings: That is correct.

Davis: Ok. Now, what items were you provided - as far as examining, in terms of Dr. Peretti's testimony regarding estimation of time of death?

Jennings: I was provided with Dr. Peretti's testimony, I was provided with the coroner's report, and uh - I was provided with the autopsy reports.

Davis: Ok. And you are aware of Dr. Peretti's testimony regarding that estimate or range as to the time of death of the three victims - based on that testimony, what was the factor that Dr. Peretti's opinion was based on?

Ford: Your Honor, I will object to that. He can't - he's not allowed to comment on what Dr. Peretti's testimony is. The jury heard his testimony. And for him to characterize in one sentence what Dr. Peretti said over a period of an hour or so is inappropriate. I object to the form of the question.

Davis: Your Honor, he has had an opportunity to review that testimony and I certainly think as an expert in the field, he can certainly - from that review of the testimony, can indicate what the basis of Dr. Peretti's testimony was.

Jennings: I can read two key statements - if you hold on a second, I have them here.

(pause)

The Court: Overruled. I'm going to allow him to -

Davis: - And what was the factor upon which Dr. Peretti's estimate or range as to time of death is based?

Jennings: In Dr. Peretti's word in his testimony, he says that he is being asked to do that based solely on the presence of lividity as stated in the coroner's report.

Davis: Ok. And have you carefully reviewed that coroner's report, particularly the portion regarding lividity blanches with pressure?

Jennings: I have read it carefully and more than that, I've talked with the coroner.

Davis: Ok. Now based on that review of the coroner's report, is there any information at all contained in that report which would provide the basis for any meaningful estimate as to the time of death?

Ford: Your Honor, until he's laid the proper foundation for that question - until he's laid a proper foundation to that question, at this time - because he hasn't explained livdity - he's just - he's going in again, instead of laying the foundation and I'm asking him to do that first.

Davis: Your Honor, the - I think Mr. Ford missed something, I asked if there was any meaningful information in that report upon which you could base an estimate time of death. I didn't ask about lividity.

The Court: Go ahead, I'm going to allow the question.

Davis: Ok. Doctor is there any meaningful information or information contained in that coroner's report upon which you could base a meaningful estimate as to the time of death?

Jennings: There is nothing in that report on which you could base a meaningful estimate.

Davis: Ok. Were there factors indicated in that report regarding the last time the children were seen and when they were found?

Jennings: Yes, that information is there.

Davis: Ok. And would that be one of the perameters that you would look at in estimating or forming a range as to the time of death?

Jennings: Yes, the last time they were seen and when the bodies were physically found.

Davis: Ok. Now what about the statements regarding lividity that were contained in that coroner's report? Could there be any meaningful estimate of time of death based on that information regarding lividity?

Jennings: There could be no meaningful estimate uh - and I could tell you of - why it could not be meaningful.

Davis: Ok. Doctor, if you would please.

Jennings: Of all the - of all the many uh - findings uh - that you see in an examination after death, lividity is the least reliable. In this particular case, it is less than worthless uh - the reason being that the bodies were discovered, as you know uh - unclothed, in water, uh - the question being, is their position in the water totally static or could they have been uh - partially rocking or rotating. We don't know that, we don't know the position that they were found in the water. And then, moreover, the key thing is according to the testimony uh - according to conversation with the coroner, he arrived 4 hours later -

Ford: Your Honor, I object to that. I object to his statements regarding the coroner. The coroner can be brought in here if they'd like, but they haven't done that.

The Court: Rule 705. Overruled. You may proceed.

Jennings: The key thing that would tell me that this uh - that this lividity is of no use for an estimate is that the coroner stated that when he arrived 4 hours after the bodies were discovered - 3 or 4 hours, that the bodies had all been placed on their back on the ditchbank and so the very fact that the coroner stated that yes, indeed there was lividity and yes, it did blanch uh - is meaningless because the position of the body is changed and there could be redistribution and also the fact that they were in water unclothed greatly retard the development of any of these signs after death. Rigor, lividity, you know - all these things that could have defined to you. If they're in water, it's much much slower to develop and then the bodies were changed in position.

Davis: Ok. Under the best of conditions, would lividity be a meaningful factor in making an accurate or even an accurate estimate as to time of death?

Jennings: The general opinion of pathologists and sources that I've consulted is that of all possible uh - perameters to look at, it is the - it's been phrased as it's the baddest of the bad. If you have every perameter possible that - if every - if temperature has been taken, if rigor has been assessed, uh - if all of these things are done uh - and you have lividity, even then you are hardpressed to make a meaningful estimate. If you have lividity alone, which is the only one and it has been compromized by being in water and by changing position, it is of no - it is of no value.

Davis: Ok. Doctor, did you bring with you the most re - a copy of the article from the most recent tex you could find uh - regarding the area of lividity and it's usefulness in determining time of death?

Jennings: Yes, I did.

Davis: Could you refer to that and let - read to the ladies and gentlemen of the jury from that particular article? And before you do that, tell us what text it's from and the - the background of the author and that sort of thing.

The Court: Before, I said rule 705 - it's 703.

(next audio begins here)

Davis: Doctor, based on your review of the coroner's report is the only legitimate time frame as far as a range of death the 6:30 period or the 6:00 period when the coroner's report indicates when they were last seen and 1:15 when the bodies were recovered?

Ford: I object to leading counsel.

The Court: Overruled.

Jennings: I would say that that is the only meaningful information when they're last seen alive and when they was discovered in this particular case given the documentation and lack of documentation of these findings.

Davis: Pass the witness, your Honor.

Ford: You said something interesting since - after I sat down, you said they you are on the board that oversees the crime lab?

Jennings: I am on the state crime lab board.

Ford: Ok. And so as - on that board, is it part of your job to oversee the quality of the personnel that are there conducting those day to day tasks?

Jennings: Um - in general terms I would feel that's correct. Uh - I have recently - I have not been asked to pass on the credentials - the people sitting in those positions now were in those positions when I came onboard.

Ford: Ok. But it is though, isn't it? That's your job as a board member to make sure the people who are down there doing the day to day jobs are competant.

Jennings: That's certainly true.

Ford: Ok. And Dr. Peretti is one of those doctors, isn't he?

Jennings: Dr. Peretti is one of those doctors.

Ford: Alright. And two other forensic pathologists are down there too, aren't they?

Jennings: There are.

Ford: And isn't it true that Dr. Peretti indicated in his testimony that he conferred with the other two and they all three agreed on the time of death? Isn't that his testimony?

Jennings: That's over stating what I read in the testimony.

Ford: Ok. He did say he conferred with his other two doctors, right?

Jennings: That's what I understand from the last part of his testimony.

Ford: From the last part of his testimony. So, you're asking this jury to believe that all three forensic pathologists at Arkansas' state crime lab are incompetant - when they come to this courtroom and tell this jury - in their opinion, time of death is between 1AM and 5AM is that what you're telling us? That the state's pathologists - medical examiners are incompetant because they don't know what's going on when it comes to time of death. Is that what you're telling us?

Jennings: It sounds like what you're trying to put into my mouth. I'm not saying that at all. Dr. Peretti is a competant pathologist - is by all indicators that I have. Dr. Peretti said multiple times in his testimony you can not determine this, you can not determine this, you can not determine this, you can not determine this and we can count the number of times in his testimony. And at some point, he said one sentence more. And I - it is baffling as to why. I would not say he's incompetant, his associates are not incompetant, and I think they were severely disadvantaged in this case - as was the coroner. And they had nothing in which to base an estimate.

Ford: Ok. Now did you - do you have the coroner's reports with you today? Did you bring those with you?

Jennings: Uh - yes, I do. I think I -

Ford: - May I see those please? I want - so I can see what you looked at.

Jennings: I think that I have them.

(mumbling)

(pause)

Jennings: I do in fact have those.

Ford: Ok. May I see them, please sir?

(pause)

Ford: This is the um - coroner's report for Christopher Byers. Does it indicate that right there the temperature of the water was approximately 60 degrees? Is that what it says?

Jennings: It says uh - water which is approximately 60 degrees in temperature - approximately is not good enough in this kind of situation.

Ford: It gives an approximate temperature of the water, doesn't it?

Jennings: Yes, it does.

Ford: Yes, it does. And all three of them do that. All three coroner's reports tell what the water temperature was - didn't it? Don't they?

Jennings: The estimate as to the water temperature appears on each of those.

Ford: Thank you. Now, you said that you would take into consideration air temperature - right? Wouldn't that be part of what - didn't you - when asked what factors you would take into consideration, wasn't part of the thing that you said you would take into consideration the air temperature?

Jennings: Air temperature -

Ford: - Water temperature?

Jennings: Exactly.

Ford: Body temperature?

Jennings: Yes.

Ford: Rigor?

Jennings: Rigor.

Ford: The time they were last seen, the time they were found - is that right?

Jennings: That's correct.

Ford: And what things did you say you would take into consideration about lividity? You said where he pressed - where he pressed for lividity -

Jennings: - Um hum.

Ford: How hard he pressed -

Jennings: - How many places he checked.

Ford: How many places -

Jennings: Um hum.

Ford: Whether he took any photographs?

Jennings: Um hum.

Ford: Well, if you're going to take into account all of those things about lividity, why are you telling us lividity is worthless?

Jennings: Lividity is the one and only thing that you had here - I said under the best of circumstances it's the worst. We have less than the worst here. It was not meaningfully assessed.

Ford: That wasn't my question. You read from a text book to this jury that lividity when it came to determining time of death was worthless. If that - if it's worthless, why do you have about 5 or 6 different things you want to know about lividity when you give your list for determining time of death? If it's worthless, you don't want to know anything about it, right?

Jennings: The reason is that Dr. Peretti in his testimony says that that is all that he had to base his opinion on was the coroner's written account, that was the only thing. What else do I have to investigate? They did not do body temperatures.

Ford: That's not my question. You were asked independantly what factors do you need to determine time of death.

Jennings: Um hum.

Ford: And you listed about 4 or 5 things about lividity that you would want to know.

Jennings: Um hum.

Ford: If lividity is worthless, why do you want to know anything about it at all?

Jennings: Because it's all that we had, sir. And it is almost worthless, and sometimes stated as being worthless.

Ford: But it's not -

Jennings: - But it was the one and only thing we had here. I can't say that it's not, that's what the most recent text says.

Ford: Ok. So you don't agree with that text, you think that it is important - certain things about lividity. You want to know where it is, how hard you press, how many places you check - you want to know alot about lividity. So, you don't agree with that text book, do you?

Jennings: Well, you're trying to put words in my mouth. I'll tell you the answer to that. The answer is, you don't turn down any information ever that you have available to you. You want each and every bit of information, every factual finding. But as far as the interpretation of that, I have read what the general assessment is as to it's importance.

Ford: Who gave you that text book to read?

Jennings: That text book was given to me by Dr. Debin, who uh - trains forensic pathologists in the state of Mississippi and by Emily Ward who is the state medical examiner by the state of Mississippi.

Ford: Ok. You talked to people about your opinions in this case from Mississippi, Tennessee, and Oregon - right?

Jennings: That's correct.

Ford: But you didn't go down to Little Rock to talk to any of those three guys, did ya?

Jennings: No, and I have a very good reason. They were uncomfortable in testifying or stating their opinion against their collegue.

Ford: Ok, but you didn't ask them that - did you?

Jennings: I did not ask them that.

Ford: You never asked them that?

Jennings: I did not -

Ford: - You never called them?

Jennings: Never called them.

Ford: 'Cause you had already read the coroner's - you had already read Dr. Peretti's testimony where he said they all agreed, that's why you didn't call him - isn't it?

Jennings: No, I didn't. As a matter fact, I didn't read that until this morning.

Ford: Ok. Speaking of how recently you read things - you and I talked Sunday night, didn't we?

Jennings: Yes.

Ford: About all your opinions?

Jennings: Um hum.

Ford: And what you were going to tell this jury here today? Didn't we?

Jennings: I don't remember all that conversation, you were asking the questions.

Ford: I asked some questions, but we asked about what your opinions were gonna be - didn't we? We talked about that, didn't we? Sunday night, and you had already formulated your opinions, hadn't you?

Jennings: No. In fact, many things uh - were expanded down and amplified since that time. I had a number of contacts out, I had a number of articles requested, I had a number of texts requested that did not in fact come in until after our conversation. I naturally would not quit exploring until the time that I arrived here.

Ford: Ok. You told me on Sunday night that it was impossible for Dr. Peretti to give a meaningful opinion as to time of death. You told me that Sunday night, didn't you?

Jennings: Uh - yes.

Ford: And that's basically what you're telling us here today, isn't it?

Jennings: That is what I'm telling them.

Ford: And when we talked Sunday night and you already had formed that opinion, you hadn't even looked at his autopsies - had you?

Jennings: I had not been furnished the autopsies.

Ford: Ok. So -

Jennings: - I had been furnished the coroner's report.

Ford: So you formed your opinion without even looking at his autopsies, is that right?

Jennings: I looked at them indirectly.

Ford: You did not - you did not read his autopsies before forming your opinion, did you?

Jennings: My opinion was not firmly uh - and finally formed Sunday night because you asked me that opinion at that time.

Ford: Ok.

Jennings: I certainly didn't turn off my brain at that time when I talked to you.

Ford: You already had formed your opinion that you couldn't give a meaningful opinion as to time of death - Sunday night, you had already formed that opinion?

Jennings: I had a working opinion.

Ford: Ok.

Jennings: I continued to think and continued to study.

Ford: Alright. Did Dr. Peretti say he took into account water temperature?

Jennings: I saw no mention of that in his autopsy report.

Ford: In his testimony, did he say he took into account water temperature?

Jennings: Not that I recall.

Ford: You don't remember reading that?

Jennings: I do not recall that.

Ford: Ok. And you don't remember him saying he took into account air temperature, do you?

Jennings: I do not recall that. I do recall his saying he based it only on lividity in the coroner's report.

Ford: So if I asked him questions about air temperature and water temperature, you don't remember that by reading it - do you?

Jennings: I don't - I do not.

Ford: Ok. Taking into account air temperature and water temperature - those are important factors, aren't they?

Jennings: They're of no value in this case because they never took body temperatures. The reason they would be of importance is to establish a gradiant of temperature as the temperature fell in the body. Since no temperature was ever made of the body, the air temperature and the ambient temperature and the temperature of the water actually are meaningless.

Ford: Ok. So again, what you're saying is the factors that you would take into account - when asked, you said you would take into account air temperature and water temperature and you said you would also take into account lividity. You're saying that these are three factors that I'll take into account, but in this case they're worthless. Is that what you're telling us?

Jennings: Absolutely and clearly.

Ford: Ok. So everything that a qualified pathologist would look at and Dr. Peretti looked at - you're saying is worthless?

Jennings: That is not the case, Dr. Peretti was not on scene, Dr. Peretti did not have opportunity to take temperatures, Dr. Peretti did not examine the body when it was recovered.

Ford: And neither were you.

Jennings: I have - I was not.

Ford: Ok.

Jennings: Noone measured those things.

Ford: Tell me who your - tell me who your partner is, in your private practice.

Jennings: I have uh - there are 5 of us that are partners.

Ford: Ok. Is any of them related to Mike Waldon?

Jennings: Dr. Volman is the father-in-law of Mike Waldon.

Ford: Ok. And isn't Mike Waldon a deputy prosecuting attorney?

Jennings: I don't know. I think - I know that he has, at times, been in the prosecutor's office, I don't know his title.

Ford: And use to be a law partner with Brent Davis, didn't he?

Jennings: I don't know that either.

The Court: Anything else?

Ford: Just a minute, your Honor.

Davidson: I'll have a couple when he's through, your Honor.

The Court: Are you ready?

(mumbling)

Ford: Dr. Jennings, were you aware that the prosecutors came in this court and stood before this jury and submitted Dr. Peretti as an expert in forensic pathology?

Jennings: I would assume that would have to be true from the uh - from the testimony I read.

Ford: You read the testimony and at that - in reading that testimony - Brent Davis stood in front of this jury and said this man is an expert in forensic pathology, didn't he?

Jennings: Uh - yes, he did.

Ford: Ok. And this expert conducts autopsies every day or weekly - regularly, it's part of his job. Right?

Jennings: Yes.

Ford: And you don't do that, do you?

Jennings: Forensic autopsies - I no longer do that.

Ford: Ok. Pass the witness.

Davidson: Now Dr. Jennings, I just have a couple of questions for you. First of all, um - I believe you said it would have been important to have these other factors - about how many times the bodies had been pressed, uh - how the uh - where the bodies were pressed, all those factors that you have mentioned. Those would be important, is that correct?

Jennings: My point was, even though lividity is weak - even that was not assessed very extensively.

Davidson: And uh - in other words, that coroner's report just didn't have alot of the information you would like to have in it, is that what you're telling us?

Jennings: That is certainly true.

Davidson: And it would have been good if pictures had been taken at the time so you would be able to make a more definate opinion, is that correct?

Jennings: Uh - I - the statement I made about photographs were in regard to - to the refilling time of - of the lividity, where the lividity was, how the blanching - what the blanching looked like in photographs. Uh - I'm just trying to build any kind of strength for lividity and I can't find it.

Davidson: Have you uh - talked with Bryn Ridge regarding this case?

Jennings: No, I don't - I have not.

Davidson: Have you talked with Gary Gitchell regarding this case?

Jennings: I have not.

Davidson: Um - to your knowledge uh - was there any sort of uh - well, have you looked at a crimescene video?

Jennings: I have not.

Davidson: Ok. That would have been important to be able to determine the position of the bodies, wouldn't it?

Jennings: Yes, if they're uh - if video is prior to the bodies being touched.

Davidson: And pictures would have been important, wouldn't they?

Jennings: Yes. The video would have been relatively important. But again, in water uh - the body is not static in position, it could move and rock.

Davidson: And the body temperature, that would have been an important thing for us to -

Jennings: - It could have been critically important. Could have been, but it's difficult with all of these findings.

Davidson: And how long is it uh - when do you have to take that body temperature?

Jennings: Immediately upon retrieving or discovering it or retrieving the body.

Davidson: Upon discovering the bodies. And uh -

Jennings: - To be optimal - I mean, that's just common sense you know - as soon as you can.

Davidson: As soon as you can.

Jennings: Um hum.

Davidson: And that evidence is just lost now, we don't have that 'cause it wasn't taken.

Jennings: That's correct.

Davidson: Would you agree with me then that - that the investigation didn't have the factors that you needed to make this assessment, is that correct?

Jennings: They don't have the factors that anyone would need to establish time of death.

Davidson: Now you're not here saying a different time of death than Dr. Peretti, you're just saying you can't tell. Isn't that correct?

Jennings: By and large, I am agreeing with what Dr. Peretti said throughtout - over and over and over again, is that you can not tell, you can not tell, you can not tell. And I am baffled as to why, after saying that, he ever would give a range - unless he was - felt bagered. I just can not explain that.

Davidson: But again, you have not talked with him about it?

Jennings: I have not talked with him about it.

Davidson: Ok. Um - but as far as these factors, they are lost and we can never get 'em again - is that correct?

Jennings: I think that's true.

Davidson: Thank you.

The Court: Anything else?

Davis: I have just one more question. Dr. Jennings, the association of the fact that Dr. Volman's a partner in your association - would that in any way affect your opinion that you would tell these ladies and gentlemen of the jury, here under oath?

Jennings: It would not affect my opinion whatsoever. Uh - the only thing that that might do is - since I respect him, is that I would want to do my homework and I would want to uh - to do a good and truthful job.

Davis: And in fact, when Dr. Volman's opinion differed from the state in the Larimore case, which was a murder trial tried in this district -

Ford: Objection.

The Court: What is the objection?

Ford: It's irrelevant what happened in another trial that doesn't relate to this at all.

Davis: They tried to bring up -

Ford: - It's irrelevant, your Honor.

The Court: Wait - wait - wait a minute.

Fogleman: They tried to suggest bias, your Honor. If Dr. Volman had an opinion contrary to the state in another case -

Ford: Your Honor, I object to Mr. Fogleman testifying in front of the jury. I'd ask a ruling on my objection.

The Court: Alright, your motion is overruled uh - I want to limit your inquiry to - to the point that if Dr. Volman had a contrary opinion, would it affect his opinion. And let it go at that.

Davis: Ok. If Dr. Volman had a contrary opinion, would it affect your opinion?

Jennings: Not in the slightest.

Davis: And has in fact, Dr. Volman given an opinion contrary to the state - under oath, in a criminal matter in this -

Jennings: He's expressed no opinion.

Davis: Ok.

(tape flipped)

Ford: - We're gonna move on Dr. Jennings. You read Dr. Peretti's report - I mean, his testimony?

Jennings: Yes, I did.

Ford: Did you read it more than once?

Jennings: Uh - yes, I did.

Ford: Did you read it carefully?

Jennings: I read segments of it carefully, I didn't read all of it carefully. I read the ones pertaining to time of death.

Ford: Did the prosecutor ever ask Dr. Peretti "Do you have an opinion as to the time of death?" - did he ever ask that question?

Jennings: I don't recall that.

Ford: I asked that question.

Jennings: You asked that question.

Ford: He wouldn't ask it, would he?

Jennings: I don't know if he would or not.

Ford: Ok. That's all.

Jennings: I don't know (laughing)

Ford: Nothing further.

Jennings: I can't - ( still laughing)

The Court: Alright, anything else? Alright, you may stand down. Thank you, you're free to go.