Fogleman: Would you state your name and occupation for the jury?

Kilbourn: My name is John Kilbourn. I'm a forensic scientist, employed at the state of Alabama Department of Forensic Science.

Fogleman: And how long have you been employed there?

Kilbourn: I'm in my 25th year with the department.

Fogleman: And what are your specific duties with that department?

Kilbourn: Uh--I'm a supervisor in the uh -- trace evidence or microanalysis section in the Huntsville laboratory in Hunstville, Alabama. Uh--with the responsibilities of both doing case work on the examination of hairs and fibers, uh--explosive residues, paint analysis, as well as supervising uh--other examiners in that area. Uh--in additional, uh--in addition, I have responsibilities in the state of Alabama as the uh--Chief Forensic Microscopist and to deal with uh--problems and do training in the area of microscopy uh--for all of our examiners throughout the state.

Fogleman: And what is your formal education?

Kilbourn: I hold a degree from Ober University in the field of pharmacy, uh--and I also did graduate work at the University of North Alabama--in Florence, Alabama.

Fogleman: And what other education, training, or experience do you have in this field?

Kilbourn: Uh--over the course of the last 25 years, uh--I've taught or attended uh--a number of schools uh--throughout the country dealing in forensic sciences. Some of these have been at the FBI Academy in Quantico, Virginia. Uh--I also studied at the Macrone Research Institute, uh--in Chicago, Illinois uh--dealing in the field of forensics sciences and specialized courses in forensic sciences. And also have attended uh--numerous seminars dealing with workshops and short courses in the forensic field.

Fogleman: Now, do you also have some teaching experience in this field?

Kilbourn: Uh--yes sir.

Fogleman: Alright. And tell us a little bit about that.

Kilbourn: Uh--I've taught uh--a number of courses uh--in forensic sciences in the microscopic aspects of forensic sciences in the examination of hairs, fibers, identification of small particles utilizing a--the light microscope. Uh--these forensic courses I've taught in the state of Florida, uh--the state of Tennessee, uh--in Alabama and Louisiana. And I also was a guest lecturer, teaching a course at the FBI Academy in Quantico.

Fogleman: Now, is there a--in the, uh--field of forensic sciences, is there a certification process?

Kilbourn: Uh--yes sir, there is.

Fogleman: Alright. And what is the--what are the requirements for becoming certified in this area?

Kilbourn: Uh--there is a certification program uh--with the uh--the American Board of Criminalistics. And this ABC Board uh--provides testing--a test for various candidates of uh--in the forensic field. First of all, you have to have the 5 years of experience in the field in order to be eligible to take the examination. Uh--there is a basic examination in the field of forensic sciences and also advanced examinations. In addition, if you pass these exams uh--you must participate in a quality assurance program to make sure that the work that you're doing is indeed correct. You must have continuing education uh--much as in other professions, where you have to attend seminars or present papers or publish books or papers in the field of forensic sciences.

Fogleman: And are you--have you been certified, you--under that program?

Kilbourn: Uh--yes sir, I have.

Fogleman: And about how many uh--people have been certified in--in this country?

Kilbourn: Uh--at this time, there's less than 200 nationwide.

Fogleman: And what professional organizations are you members of?

Kilbourn: I'm a Fellow, which is the highest position in the American Academy of Forensic Sciences. I'm a member of the Southern Association of Forensic Scientists. The Midwestern Association of Forensic Scientists. Uh--I'm past president of the uh--Alabama State Association of Forensic Scientists and also a member of the International Association of Arson Investigators.

Fogleman: Now, have you testified in court before?

Kilbourn: Yes sir, I have.

Fogleman: Uh--approximately how many times?

Kilbourn: I would say over 500 uh--times.

Fogleman: Any major cases?

Kilbourn: Uh--there have been a number of fairly large cases, yes sir.

Fogleman: And how many fiber cases and fiber samples have you examined in your career?

Kilbourn: Uh--it would be very difficult to place an exact number. Uh--there have been hundreds of cases which were composed of uh--thousands of fibers that have been examined uh--in the past 25 years.

Fogleman: Your Honor, we would submit Mr. Kilbourn as an expert in the field.

Price: No objections.

The Court: Alright, you may proceed.

Fogleman: Mr. Kilbourn, in uh--fiber analysis, what procedures follow in comparing fibers.

Kilbourn: In--in a comparison, uh--basically what we're dealing with is a comparison of a questioned fiber with a known fiber to determine whether or not they could have had a common origin. Different scientists will go through different routines or different schemes in order to make this identification. But, we look at basic uh--characteristics that anyone would look at. And we often do this with the aid of a microscope so we see the characteristics, such as color. Uh--and if at any time in our examination, if these characteristics are obviously different then we basically stop our examination. If one fiber ofcourse is blue and the other one is red, there's no need of furthering the examination. But first thing that we would do is, ofcourse look at color to see if the color is identical or such that you can't differentiate it with your eye or through a microscope and often we use a comparison microscope which is basically two microscopes built into one so that we can look at the known fiber and the questioned fiber at the same time to see if indeed the color is the same. Uh--we look at the shape of the fiber, is one of the fibers round and the other one real flat, such as cotton might be. Uh--or round like a polyester. If we once again find that these characteristics are identical or the same then we continue our examination making these microscopic examinations. And depending on the examiner, there are a very wide variety of measurements that can be made under the microscope. Uh--we look at, for delustriance for instance which is uh--a compound of pigment that is put into fibers to make a fiber dull rather than real shiny -- (10 seconds blank spot in audio) --a fiber and laid it down flat on a microscope slide, what is the shape of it. Is it round, uh--is it trilobal--have three lobes, like a nylon carpet fiber might have. Uh--is it very irregular in appearance. So we make all of these--all these microscopic observations and as I say, if at any point in time obviously these two are different we stop the examination. But in addition, uh--a fiber might--an examiner can run instrumental analysis. Uh--there's uh--instruments that will tell you what generic type the fiber is, uh--whether it is rayon or whether it's nylon or whether it's polyester. There are instruments that can be used to observe the color of the fiber and tell you whether the color is similar uh--between the known and question. And basically, uh--this is stepperalized procedure that most forensic examiners go through.

Fogleman: Now in this particular case, at the request of either the prosecuting attorney's office or the West Memphis police department did--or the crime laboratory, did you examine uh--what is labelled as E-2, a questioned fiber which I believe has been introduced as defendant's exhibit 1. And also, known fibers uh--from a garment, state's exhibit 88 labelled uh--labelled red garment, as J-5?

Kilbourn: Yes.

Fogleman: And what comparisons or tests or examinations did you perform on those items?

Kilbourn: I basically did uh--a microscopic examination uh--of the questioned and the known fiber, making observations. As well as doing some instrumental analysis of the fibers.

Fogleman: And what were the results of your analysis?

Kilbourn: Uh--in my opinion, the--the questioned fiber was consistant with the known fibers with the measurements that I've performed.

Fogleman: I'm going to show you what I've marked for identification purposes as state's exhibit 128 and 129 and ask if you can identify those.

Kilbourn: Yes, I can.

Fogleman: Do those fairly and accurately portray the questioned fiber and the known fiber as they appeared to you at the time that you examined them?

Kilbourn: Uh--yes sir.

Fogleman: Your Honor, we would offer state's exhibits 128 and 129.

The Court: Alright, they may be recieved without objection.

Fogleman: Alright. Before the--Your Honor, could he step down --

The Court: --Yes.

Fogleman: Now for the jury's purpose, state's exhibit 128 is that the known fiber?

Kilbourn: Uh--yes sir.

Fogleman: Alright. And state's exhibit 129, that's the questioned fiber?

Kilbourn: Yes.

Fogleman: Alright. And uh--just looking at it--just the shape, you know, I'm--in layman's they look different to me. What uh--what kind of explanation is there for that?

Kilbourn: On the questioned fiber, uh--you can see that it's alot wider than the known fiber. Uh--also you may notice that, especially in this end, uh--where it is much wider, it also appears to be somewhat lighter in color than the questioned fiber and this is due to the fact that uh--Ms. Sakevicius, uh--from the Arkansas Crime Laboratory, when she did her examination in order to perform one of her tests, which is called micro--uh--infaredspectroscopy, uh--to determine the genetic type of the fiber, she had to flatten the fiber. And she took a scapel blade or uh--some type of roller and actually rolled onto the fiber itself to flatten it out and this is necessary in order to--to do that test. So, that is the--the reason that uh--you see a slight color difference and ofcourse the width. If you look at it up close you can see that uh--that in this area, you know, it looks quite a bit different than uh--than the known fiber. This is the reason, because it has been substantially flattened out until it's very--very thin so that the light from the instrument can get through the fiber.

Fogleman: Ok. You can retake the stand.


Fogleman: Your Honor, if we could have him just leave it on the tripod--if you would just leave that on there Brent.



Fogleman: Mr. Linch, uh--Mr. Kilbourn, excuse me. Uh--at one point, uh--Mr. Linch, uh--Charles Linch, uh--testified that the--that he had indicated that the fiber--the uh--fiber was round. Now, are--what particular type of fibers were the fibers that you examined?

Kilbourn: Uh--they were rayon.

Fogleman: Alright. And are rayon fibers ever round?

Kilbourn: Uh--no sir.

Fogleman: Alright. If you--Your Honor, may he step down and do a little drawing here for the jury?


Fogleman: And while you're here, before you draw a rayon, would you describe to the jury the uh--different types of fibers and the different shapes that you see?

Kilbourn: We basically have two classifications of fibers. We have natural fibers and we have man made fibers, or synthetic fibers. Natural fibers uh--that most people are familiar with are things like uh--cotton fibers, uh--flax, uh--hemp, jute, all of these are natural fibers that come from plants. And on the other hand, we have the man made fiber and these are the synthetic fibers that--that most garments and materials are made of today. Well, there are different types of--of uh--synthetic fibers. There are fibers like nylon, there's polyester, uh--there is acrylic fibers, uh--a brand name of acrylic is like orlon that people are familiar with, and there are mod acrylics, and there are acitates and there are triacitates, and there are rayons and there are a few other uh--fairly rare synthetics, but those are the major uh--fibers. And the manufacturing process is the way fibers are manufactured, fibers will take on different shapes. For instance, uh--the way that most fibers are made is that they begin as a liquid and through some kind of process, uh--for instance with nylon they actually take nylon chips and they melt them and so now the nylon is a liquid but we want to make fibers out of that nylon so they take a disc that's called a spineret, and in this spineret there are literally thousands of these great tiny holes and if we looked at the hole through the microscope we would see that one of these holes--for instance with a uh--with a nylon, it might look like that and we call that trilobal. And these thousands of spinerets, each one of them have that shape. Well, this liquid polymer--the nylon is forced through this spineret and then the fibers are cooled as they come through and when they do they take on this shape. And we call that a trilobal nylon, and that's most of the carpets that you have in your home or here in the courtroom. If we looked at it under the microscope, like i was talking about--a slice of bread, you will find that they have that shape. Most of your polyesters that are in clothing and upholstering--they are perfectly round. And once again, but the method that they are manufactured, this is the way they appear. Now, there are a few fibers that are neither round nor have this trilobal and one of them is rayon. Rayon starts out as a liquid but when it passes through these spinerets, actually these holes are round but when this liquid is forced through there it goes from one liquid state, which is very basic ph, into another liquid that is acidic and when this liquid passes into that acid the fibers are formed. And by this process, what we call a wet spinning method, eventhough when they go through they're round when they actually coagulate in that acid bath then they take on a very irregular--very irregular shape. We call this an irregular or striated type appearance and this is what we look at under cross sections--striated, trilobal, and round. With every rayon fiber that you look at, will be a little bit different. Basically, you can say that their shape is round or circular, and that it's more circular than it would be square or be maybe--in this case you could say this is maybe a triangle. But they're not actually round, they're--they have this very irregular appearance. And when you look at a fiber, you can tell that because if you look at it on a microscope slide and have your fiber mounted on here--if we look at it with magnification, we'll see that this fiber--if it's a rayon, actually has these striations or grooves running down it. And we call that a striated fiber and what is happening is that we just project these back and say this is the top of the fiber, uh--because we have hills and valleys caused by this irregular cross section, then when we look down on the fiber that's exactly what we see.

Fogleman: Alright, now let me stop you a minute. Now, is--are those striations illustrated in state's exhibits 128 and 129?

Kilbourn: Yes sir.

Fogleman: Alright. And could you--and it's gonna be hard 'cause they're small, but could you point those out to the jury?

Kilbourn: You just about have to look at it up close, but if you--if you look at the fiber up close, you'll be able to see that within the borders here there are a number, uh--probably 4 or 5 of these--of these striations. Those of you in the back will actually have to look at it closely. And if you look at the questioned fiber down on this end where it's not flattened, although it's a little out of focus, you can still see those striations. And where it is flattened, they become even more prominant--you can see where those striations are. So, when I make that observation--see those striations that we have here, we know that the cross section is not going to be round but it is going to be irregular, as you have in a rayon type fiber.

Fogleman: Alright. Thank you. You can retake the stand.


Fogleman: I want to show you what's been introduced as state's exhibit 93, have you seen that graph before?

Kilbourn: Uh--yes sir, I have.

Fogleman: Alright. And that is a graph that was run by Ms. Sakevicius, is that correct?

Kilbourn: Yes sir.

Fogleman: And that graph run by Lisa Sakevicius on the fiber from the shirt and the known fiber from the robe, uh--do you have an opinion if the graph illustrates the similarity in microscopic characteristics, as far as color?

Kilbourn: Yes.

Fogleman: Alright. And what is that opinion?

Kilbourn: Uh--that those--although the curves uh--differ very slightly, they're within the limits uh--that, in my opinion, they have the same color.

Fogleman: Alright. And do you--do you sometimes from the same garment and taken known fibers, do you have differences uh--in the fibers from the same item?

Kilbourn: When we do the microspectrography? Yes sir--yes sir, we see uh--minor differences in--in primarily the intensity and not so much a significant shifting of the location of the peaks, but--but the intensities will vary. And not only from fiber to fiber, but actually at different locations on a fiber--you can get slight differences on a--on the curve.

Fogleman: So, if I--do I understand that depending on what portion of the fiber you run the test on, you might get differences even on the same fiber?

Kilbourn: Uh--slight differences, yes sir.

Fogleman: Alright. Your Honor, just a minute. Your Honor, I don't have any further questions.

Price: No questions.

Ford: Mr. Kilbourn, you and I have spoken before, haven't we?

Kilbourn: Uh--yes sir, we have.

Ford: Over the telephone?

Kilbourn: Yes sir.

Ford: And talked about your observations and your findings, is that right?

Kilbourn: Yes sir.

Ford: Ok. Now when we talked on the phone, didn't you tell me that in your opinion you could not say that the questioned fiber came from that robe?

Kilbourn: I did, yes sir.

Ford: Ok. So, despite everything that we've heard you still can't say that questioned fiber came from that robe--can you?

Kilbourn: Not as a matter of fact, no sir.

Ford: Ok. Now, when you flatten a fiber do the striations disappear?

Kilbourn: It would depend on the degree of uh--of flattening. Uh--in this particular one, I think that we can still see uh--where the striations uh--lead from the nonflattened area directly into the uh--into the flattened area, so they appear in those photographs to still be present--atleast to some degree.

Ford: Ok. Let me ask you--let me ask you this, Mr. Kilbourn--if I could see those slides--

Kilbourn: --That's the only one I see.

Ford:--That's the only one you've got. This is--this is the fiber which Ms. Sakevicius says was recovered from one of the shirts. Is that the same slide that you saw?


Kilbourn: The writing appears to be--and it appears to be labelled in the same manner, uh--I also made some notations on the slide and it is not there and I don't know if it has been removed uh--or if indeed this is a different slide, so I can't positively say.

Ford: Alright. When you recieved the slide form the crimelab here in Arkansas, you did not take it apart and remount it--you used the one they already had?

Kilbourn: That's correct, yes sir.

Ford: Ok. And you indicated that you saw a microscope slide bearing a fiber 93-05716 --

Kilbourn:--Are you reading from my report?

Ford: Yes sir. Which was Q-14. On page uh--of 4.

Kilbourn: Uh--the Q-14 is my designation.

Ford: Right, but the number on the slide is the same number that's on the slide there in front of you--is that correct?

Kilbourn: Are you talking about the exhibit number?

Ford: No sir. I'm talking about the lab case number.

Kilbourn: Uh--the slide has QF and I have in my report QK. Um--I'd have to check my notes, that could be just a misprint, but--


Kilbourn:--But it does show that to be different.

Ford: With the absence other than the K and the F, the rest of the numbers are the same?

Kilbourn: Uh--yes sir, I believe so.

Ford: Ok. So, it's safe for me to assume then that you looked at that very slide?

Kilbourn: Well, once again, uh--I can't testify absolutely, because uh--as I said, I put some markings on the slide when I sent it back to the Arkansas Crime Laboratory, and those are not there. So, I don't know as a matter of fact if indeed this is the same slide just because it has the same numbers on it as my report uh--doesn't mean anything to me.

Ford: So, we don't even know for certain if you looked at the same fiber that Lisa looked at, do we?

Kilbourn: Oh, we know--well, yes--we looked at the same fiber because I took the fiber in her presence uh--when I went to the Arkansas Crime Laboratory, we examined uh--I examined some of the fibers--these fibers, in her presence and then I took them back to Huntsville with me.

Ford: Ok, I'm talking about the questioned fiber.

Kilbourn: Yes.

Ford: The questioned fiber, her slide.

Kilbourn: Yes.

Ford: Ok.

Kilbourn: Yes.

Ford: Alright. So, why you saw it -- when you saw it, it was not in it's original condition. If it had been flattened, you didn't see it before she flattened it?

Kilbourn: No, that's correct.

Ford: So your testimony is based upon a fiber that has been altered.

Kilbourn: Uh--partially altered, yes sir.

Ford: Is the end that is shown in this photograph, intact--unflattened--in the original condition?

Kilbourn: The left end, the one that is--

Ford: --This one right here.

Kilbourn: Uh--as far as I know.

Ford: As far as you can tell, this end right here is exactly the way it would have been without--when it is not flattened?

Kilbourn: Uh--as far as I know.

Ford: Ok. Well, I'm not--I mean, I can't tell by looking at 'em--you're--I'm asking you because you're the guy who is qualified. Are they--is that an unflattened end?

Kilbourn: Well, I--once again, just based on what she told me that she did not flatten that end uh--and I'm only assuming from what she told me, that she didn't. But as a matter of fact, I don't know because I didn't handle the fiber.

Ford: She told you that she did not flatten the end?

Kilbourn: Flatten that end, yes sir.

Ford: Ok. So if she told the jury that she flattened the whole thing, she would have told you something--she didn't tell you she had flattened the whole thing, did she?

Kilbourn: Well, as I recall, that's what she said--she didn't flatten that--the uh--left part of the fiber there.

Ford: Ok. Are these fibers photographs taken under the same magnification?

Kilbourn: Yes sir.

Ford: And so if we held up the unflattened end to this photograph that is an undamaged fiber, and I hold 'em up, they should have--and match 'em on one edge, they should have the same diameter?

Kilbourn: Uh--no sir.

Ford: Even--so, when one's not flattened--you mean fibers don't have--you mean diameter is not important?

Kilbourn: Sure, diameter is important, but uh--dia--uh--fibers will vary in their diameter and that's obvious from the uh--the known fiber, the known red rayon--you can see along the length of that fiber that it varies in it's -- in it's diameter. That photograph was not taken to illustrate uh--similarities in diameter.

Ford: They don't have the same diameter down there on the end, do they?

Kilbourn: No sir, they don't.

Ford: Can you see that obviously? An untrained eye can see that they don't have the same diameter.

Kilbourn: That's correct.

Ford: Ok. Now didn't you say that one of the--the two most important factors were color and size?

Kilbourn: No, I didn't say that.

Ford: Ok. Well, I thought I wrote down as you went in order --

Kilbourn: --That was not in--necessarily in any kind of order of uh--

Ford: --Color and shape.

Kilbourn: Yes, that's important.

Ford: Shape and size are the same thing arent' they? Or are you talking about 2 squares and one's this big and one's that big that they're--that's a match? They gotta be the same size.

Fogleman: Your Honor, he's asked about 4 or 5 questions all at one time, I would ask--

The Court: --This witness can take care of himself.

Fogleman: Ok, Your Honor.

Kilbourn: Diameter varies along the length of some fibers and this situation with rayon uh--you'll find that the diameter along the length of the fiber will vary. And that's what we have here.

Ford: Alright. And we don't know--down here at this end, if this unflattened end is the smallest end and if it's going that way, it only gets bigger. Right?

Kilbourn: Yes sir.

Ford: When we--ok--and so, we don't know--since this--we don't have another one, we don't know whether that's the narrowest point, and there's no way they've got the same diameter 'cause now we can't tell because they're damaged.

Kilbourn: When we examined--not just a single rayon fiber as far as the known there was a number of others that were uh--had a greater diameter than that one that shows straight in the photograph. That photograph was just taken as a representation of the examinations that was made and not for comparative purpose.

Ford: This was made--these photographs were made to fair and accurate representations of the fibers that you examined so that this jury could understand and see what you see to understand your testimony.

Kilbourn: No sir, they were not.

Ford: Then what did you take 'em for if they're not to help them understand what you see?

Kilbourn: They're taken for my record to go in my case folder to--for me to recall what the fibers look like.

Ford: So, you didn't taken them so we could look at 'em and say, "They don't have the same size".

Kilbourn: That was not my purpose, no sir.

Ford: 'Cause you want--you want them to think they're from the same place and when they don't match up, you say that's not important.

Kilbourn: No sir, I'm not here to testify that they came from the same place. I'm here to testify that the fibers are consistant. The question fiber and the known fibers.

Ford: Now, these little dots in state's exhibit 129 --these little black things, that's the titanium dioxide that's a delustriance--isn't it?

Kilbourn: Are you telling me or asking me?

Ford: I'm asking --is that what it is?

Kilbourn: No sir, it's not.

Ford: Those are not delustriance in there--those black dots--

Kilbourn: --No sir.

Ford: What are those black dots?

Kilbourn: That's dust and dirt.

Ford: Dust and dirt.

Kilbourn: Yes.

Ford: Are there any delustriance in this photograph, state's exhibit 128?

Kilbourn: No sir.

Ford: And so there's no delustriance in either one?

Kilbourn: No sir.

Ford: Ok. Now the little stripes that I see inside state's exhibit 128, that run down this fiber--the little black--they're kinda blackened color or darker than the redden color--those are the striations that you are referring to?

Kilbourn: I -- you're going to have to show me exactly what you're referring to.

Ford: The little--they kind of look like little stripes inside the fiber--is that striation?

Kilbourn: Um--that's what I'm referring to as striations.

Ford: Ok. And if they have--if they're similar in nature you would expect to see the same sort of striations in the questioned fiber, wouldn't you?

Kilbourn: If we had uh--a --an unflattened fiber to observe rather than a very, very small amount--I would expect to see the identical type of striations, yes sir.

Ford: Identical.

Kilbourn: Well, similar. There would be striations there. Uh--a rayon as I testified is going to vary from rayon fiber to rayon fiber with respect to the striations. You can't lin 'em up like you can lines on a bullet.

Ford: Ok.

Kilbourn: But we don't have enough fiber there--well, you can see the striations but you can't match 'em.

Ford: Ok. In state's exhibit 128, the striations run from one length--do they run from one length of the fiber to the other all the way through?

Kilbourn: Yes.

Ford: And in state's exhibit number 129, are there any of those striations visible in that unflattened end?

Kilbourn: Yes.

Ford: You see the same--you see striations in that end the same way you see in that photograph?

Kilbourn: I see striations. There's not as visible as they are in that one, but there are indeed striations present.

Ford: Ok. One--one set of striations is more pronounced than in the other, isn't it?

Kilbourn: Yes.

Ford: Ok. And that's even in the unflattened end --they're not as pronounced as they are on this one.

Kilbourn: That's correct.

Ford: So they're not--the striations are not identical?

Kilbourn: No, they're not identical.

Ford: Ok. Do you have to flatten that fiber to run a color spec on it?

Kilbourn: No sir.

Ford: So, if Lisa testified that she had to flatten it to do a color print on it through the--it's a hard word to say, but--microspectrophotometer, you don't have to--that's what gives you that color chart, isn't it?

Kilbourn: Yes.

Ford: Ok. And you don't have to flatten it to uh--get that chart, do you?

Kilbourn: No.

Ford: You can run it on an undamaged fiber?

Kilbourn: That's correct.

Ford: When you run these graphs, and the peaks and valleys--it's important--or you wanna see parallel lines, don't you?

Kilbourn: Yes.

Ford: ANd the--when they're parallel, that indicates you're looking at something from the same source or microscopically similar, or consistant--right?

Kilbourn: That indicates to me that they are the same color.

Ford: Ok. If they cross, that--what--does that indicate that they're a different color?

Kilbourn: That depends on how much they cross.

Ford: These--all these graphs cross, don't they?

Kilbourn: All--I haven't seen but one.

Ford: Ok. The one you see, does it cross?

Kilbourn: Uh--very slightly at that one area there's uh--a little difference in peak intensity, but that's the only place.

Ford: Ok. Mr. Kilbourn, do people in your field always agree?

Kilbourn: No sir.

Ford: Ok. In fact, two people who are qualified and look at the same fiber and disagree.

Kilbourn: They can, yes.

Ford: Ok. And, we don't know which one's right.

Kilbourn: Yes we do.

Ford: In--when they disagree, are they both right? One say they're -- one say they're inconsistant, and one says they're consistant.

Kilbourn: One of 'em is right.

Ford: But you don't always--people don't always agree, do they?

Kilbourn: No sir, they don't always agree.

Ford: In your field--in this type of fiber comparison.

Kilbourn: Well, in -- obviously in this particular case, uh--there was disagreement, not always.

Ford: And one of the reasons that you--when did you make your first observations and look at these things?

Kilbourn: October 7th--8/17th, 1993.

Ford: Ok. Thank you.

The Court: Anything else?


Price: Yes sir.

Fogleman: Got just a couple, Your Honor. Loosely. Mr. Kilbourn, uh--there was the mention of delustriance, um--in uh--where--


Fogleman: When you look at uh--fiber under a microscope, if there are delustriance--what do you see?

Kilbourn: Uh--tiny black dots.

Fogleman: Alright--alright. In these pictures, I see some darker dots, uh--how do delustriance appear that are different from that?

Kilbourn: Well, to the uh--untrained eye and inexperienced examiner, uh--it would look very similar to this. Uh--what you would note here is that unlike with delustriance, there is no even pattern. Titanium dioxide is what's used for delustriance is white pigment and you take your liquid uh--polymer that you're going to make your fibers and you pour in some of this titanium dioxide and then you stir it up so that when it is extruded it makes a fiber--the titanium dioxide is uniform, assuming that this mixture is--is well mixed uhy--before the fiber is made. So, you would expect that throughout the fiber that you would see uh--eveness. The same amount of titanium dioxide on the outs--on the edges, as well as in the middle. And if uh--even a person who is not a fiber examiner, if based on this information--if they'll look at this fiber, they'll see that these black dots are random in nature and they're not uniformed throughout the fiber. And uh--course if you examine it on the micro--with a microscope, and put--put reflecting light, so that light comes in and hits the fiber you can actually see that these particles are actually not within the fiber, but actually sitting up on top--top of the fiber and for that reason, I think that's just dirt.

Fogleman: Alright. And is that the same for both fibers, the known and the questioned?

Kilbourn: Uh--you can see a hue of black dots on this known fiber, but once again that's just uh--just soiled areas and dirt. And there's no evidence of titanium dioxide in it.

Fogleman: Now, Mr. Ford asked you about Lisa flattening the fiber to run this test--now, are there reasons to flatten the fiber?

Kilbourn: Yes.

Fogleman: Alright. So even though you don't have to flatten it, there are reasons to flatten it?

Kilbourn: Yes, uh--Lisa--Ms. Sakevicius did uh--two types of instrumental analysis. One was for the color and uh--that's what Mr. Ford was speaking of--microspectrophotometry and for that purpose, you do not need to flatten the fiber. To do infaredspectroscopy, which allows an examiner to identify the type of fiber--that it's a rayon vs. a nylon, then in order to do that you have to flatten--or preferrably you flatten the fiber so that you can get a good spectra. And this is the reason that Ms. Sakevicius flattened the fiber.

Fogleman: Ok. And that's on a different type of test--not the color test?

Kilbourn: That is correct.

Fogleman: Alright. Now--and I think that you made this pretty clear, but just so the jury understands--you said that the striations aren't identical in the known and questioned fibers, uh--is that right? Did I understand that correctly?

Kilbourn: Yes.

Fogleman: Alright. And uh--I understood you also to testify that every rayon fiber that you would not expect to find identical striations.

Kilbourn: The striations would not be identical from the stand point that you could take the two fibers and line them up so that one would--all the striations would perfectly match the other one--such as my fingers. Uh--the basic numbers of striations may be the same as far as number, but some are going to be offset over others. Or you may not see as may striations because as I said, in the manufacturing process these striations are--are unique, they uh--will vary from fiber to fiber.

Fogleman: And uh--have you also testified for the defense in cases?

Kilbourn: Oh, yes sir.

Fogleman: Alright. And have you also testified in this judi--this very judicial district for the defense uh--in a case?

Kilbourn: Yes.

Fogleman: I don't have any further questions.

Ford: So, with respect to these striations, are you telling us that there's -- there's no way to get a match?

Kilbourn: I'm sorry, I don't really understand what you mean. You talking about between this known and questioned fiber?

Ford: There's not a match between the striations between the known fiber and the question fiber--is there?

Kilbourn: As far as lining them out--up perfectly, uh--because--since they are totally random in the way that these result from the manufacturing process uh--it's very doubtful that you would ever be able to take two rayon fibers and have the striations line up--perfectly the same.

Ford: So there's--what you're saying is no two rayon fibers in the world line up exactly?

Kilbourn: Oh, they could. I'm just saying that's random in the striations, but indeed you could match 'em up. The fact that they don't match up does not necessarily mean that these two rayons did not come from the same garment.

Ford: That does not necessarily mean that they--when they don't match up, you're saying they could match--they couldn't match. Wait a minute--wait a minute. When you're saying the striations and the fact that they don't line up, that means--it might be--it might not be?

Kilbourn: No, it has absolutely nothing to do with whether it came from the same source or not.

Ford: The bottom line is, you're not here to tell this jury that fiber came from that robe.

Kilbourn: Uh--no sir, I'm here to say that they are consistant.

Ford: Thank you.

The Court: Anything else?

Fogleman: I don't have any further questions.

The Court: Alright, you're free to go sir, thank you very much.