May 1998

June 1998

October 1998

March 1999

May 5, 1998 June 9, 1998 October 26, 1998 March 18, 1999
  June 10, 1998 October 27, 1998 March 19, 1999
    October 28, 1998  

MARCH 18, 1999


VS. NO. CR-93-450A



MARCH 18, 1999


                P.O. BOX 491
                JONESBOR0, AR 72403

                TODD NEWTON
                ASST. ATTORNEY GENERAL
                JUSTICE BUILDIN6
                LITTLE ROCK, AR  72201

                    ATTORNEY AT LAW
                    217 WEST SECOND ST.
                    LITTLE ROCK, AR 72201

                    EDWARD MALLETT
                    ATTORNEY AT LAW
                    CHASE BANK BUILDING
                    712 MAIN, SUITE 1600
                    HOUSTON, TX  77007


P. O. BOX 521
PARAGOULD, AR  72451-0521
(870) 236-8034


     Examination by Mr. Mallett     3-31
     Examination by Mr. Davis     31-50
     Examination by Mr. Mallett     50-53
     Examination by Mr. Davis     53-54
     Examination by Mr. Mallett     54-55
     Examination by Mr. Davis     57-66
     Examination by Mr. Mallett     66-69
     Examination by Mr. Davis     69-75
     Examination by Mr. Mallett     75-76
     Examination by Mr. Davis     77-93
     Examination by Mr. Mallett     93-103
     Examination by Mr. Davis     103
     Examination by Mr. Davis     104-117
     Examination by Mr. Mallett     117-125
     Examination by Mr. Davis     127-139
     Examination by Mr. Mallett     139-151
     Examination by Mr. Davis     151-156
     Examination by Mr. Mallett     156-159


1 MARION, ARKANSAS, MARCH 18, 1999, AT 9:30 A.M.
2 THE COURT: All right, I'm ready to go if you
3 all are. Good morning.
4 MR. MALLETT: You sure you don't need a minute
5 to look at your mail?
6 THE COURT: No, I'm just gonna stack it out of
7 the way here. A minute wouldn't do. I'm just gonna
8 move it over.
9 MR. MALLETT: In this small courtroom, does the
10 Court prefer to use the podium?
11 THE COURT: I can hear you fine. You don't have
12 to use it but you can if you want to. I think the
13 Court Reporter prefers it so let's do that.
14 MR. MALLETT: Okay.
15 May we proceed, Your Honor?
16 THE COURT: Yes.
17 MR. MALLETT: Doctor Neal Haskell.
20 having been first duly sworn to speak the truth, the whole
21 truth, and nothing but the truth, then testified as follows:
24 Q.  Good morning, sir. Resuming the Rule 37 proceedings on
25 behalf of petitioner Damien Echols, will you please introduce


1 yourself to Judge David Burnett?
2 A.  I'm Doctor Neal Haskell. H-A-S-K-E-L-L.
3 Q.  And of what are you a doctor? What kind of doctor are
4 you?
5 A.  I'm a -- I have a Ph.D. in forensic entomology.
6 Q.   And for the benefit of the Court and the record, would you
7 tell us -- summarize briefly your educational background.
8 A.  I received a Bachelor of Science degree from Purdue
9 University in entomology in 1969. I then completed a Master of
10 Science degree in forensic entomology from Purdue University in
11 1989 and completed a Ph.D. in forensic entomology from Purdue
12 University in 1993.
13 Q.  I will tell you, sir, that there have been periodic
14 references in earlier testimony in these proceedings to a
15 Doctor Neal Haskell. Are you the only Doctor Neal Haskell that
16 you know as a certified entomologist?
17 A.  To my knowledge.
18 Q.  Yesterday, I asked if you had brought with you your most
19 current resume or curriculum vitae is the term I think
20 academics use -- had you brought that with you yesterday?
21 A.  It was faxed in this morning.
22 Q.  All right.
23 MR. MALLETT: If I could have this marked as
24 our next exhibit, please.
25 THE COURT: All right, it may be received.


1 MR. MALLETT: I haven't had a chance to show it
2 to the state.
4 Q.  There is handwriting on here, is that your writing?
5 A.  Yes, it is. I made those notations this morning.
6 Q.  For what purpose?
7 A.  For up-dating the curriculum vitae.
8 THE COURT: Why don't you give them an
9 opportunity to look at it before I receive it.
11 THE COURT: Any objection?
12 MR. DAVIS: No, Your Honor.
13 THE COURT: All right, it may be received
14 without objection.
18 Q.  Is this the only vitae that you have ever published?
19 A.  NO, I have a much more detailed vitae if the Court would
20 need to see that.
21 Q.  Does your work in entomology often cause you to
22 participate in criminal investigations?
23 A.  Yes, it does.
24 Q.  Could you give the Court a rough estimate of the number of
25 cases in which you have worked as a consultant, advisor, or


1 researcher?
2 A.  Greater than four hundred across the -- across North
3 America and in four other countries.
4 Q.  And have you been permitted to testify as an expert in any
5 other courts?
6 A.  Many across the country including federal, state and
7 circuit courts and also in Canada.
8 Q.  And in approximately how many states have you been
9 permitted to testify as an expert?
10 A.  I think about thirteen at this point.
11 Q.  And are you prepared to testify today to the relevance of
12 insects and insect bites and insect depredation as they relate
13 to time of death?
14 A.  Yes, I am.
15 MR. MALLETT: Your Honor, may we have
16 permission to question Mr. -- Doctor Haskell as an
17 expert in the field of entomology?
18 THE COURT: Do you have any voir dire at this
19 time?
20 MR. DAVIS: No, Your Honor.
21 THE COURT: All right, you may proceed.
23 Q.  In this case, do you recall having a meeting with a lawyer
24 for a co-defendant, a gentleman named Dan Stidham?
25 A.  Yes, I do.


1 Q.  And when and what were the circumstances of that as best
2 you can recall?
3 A.  It was during our San Francisco meeting of The American
4 Academy of Forensic Sciences two years ago -- obviously, in
5 San Francisco -- where I had previously made arrangements to
6 meet with Mr. Stidham for a consultation on this -- on this
7 particular case.
8 Q.  Are you a member of The American Academy of Forensic
9 Science?
10 A.  Yes, I'm a member and also a fellow of The American
11 Academy of Forensic Sciences.
12 Q.  As a result of that conversation, did you also have some
13 conversations and correspondence with me?
14 A.  Yes, I did.
15 Q.  And did you correspond with me and request that you be
16 provided certain materials about the death of three eight-year-
17 old boys in West Memphis, Arkansas?
18 A.  I certainly did.
19 Q.  And were -- were -- what sort of materials were provided
20 to you?
21 A.  Climatological data is extremely important. Autopsy
22 reports for review were requested and received. Some of the
23 police reports -- although I don't think I received every
24 police report -- but there were a few police reports that I did
25 receive and have an opportunity to study in addition to certain


1 transcripts relating -- court transcripts relating to the
2 conditions that the -- or location where the remains were
3 found. There could have been some other -- other items that
4 were sent also.
5 Q.  Let me, if I might, ask you to help us understand some
6 expressions that I have heard you use in our conversations.
7 What are carrion insects?
8 A.  Carrion refers to animal soft tissue that is dead -- that
9 is dead and decomposing. So carrion insects would be insects
10 which feed specifically off of that type of food resource.
11 Q.  And what are larvae?
12 A.  Larvae are -- a term that entomologists use to refer to
13 the immature stage of an insect like -- insect life cycle. In
14 the -- in the term associated with flies, those larvae the
15 specific -- specific non-scientific term would be maggot.
16 Q.  What was the subject of your dissertation for which you
17 were awarded the degree of Doctor of Philosophy?
18 A.  It was the study of the diner -- diurnal flight activity
19 of blowflies and diurnal meaning the daytime activity. Now, we
20 -- we found that through this -- we had previous ideas that
21 blowflies were primarily active during daytime. They go to bed
22 at night when it gets dark and they get up after sunrise. My
23 -- my object of my dissertation was to study when in the
24 morning they would become most act -- or become active to begin
25 with, when they would be most active during the day, and if


1 that activity would decline over the day as we approached
2 sunset.
3 Q.  Two other things which I think are on your resume but I'd
4 like briefly elucidated. How are you presently employed? Do
5 you have a regular job?
6 A.  Well, I -- I had -- at one time I had been the only full
7 time forensic entomology consultant in the country before I
8 took a teaching job as an assistant professor of forensic
9 science and biology at Saint Joseph's College in Rensselaer,
10 Indiana. At this time I've kind of got two jobs going and
11 they're both -- both pretty active.
12 Q.  And so do you live somewhere in the vicinity of
13 Rensselaer, Indiana?
14 A.  I live at Rensselaer -- in Rensselaer, yes.
15 Q.  You used the expression blowflies, are blowflies a
16 distinct and unique animal that can be identified and separated
17 from all other animals?
18 A.  Absolutely.
19 Q.  Is there more than one species of blowflies?
20 A.  Yeah. The term blowfly refers to the family of flies. In
21 other words, a category of flies. And in -- in North America
22 we have about ninety difference species or ninety different
23 kinds of blowflies.
24 Q.  Are you familiar with the expression fresh -- fleshflies?
25 A.  Yes, I am.


1 Q.  Is that a type of insect that is different from the
2 blowfly?
3 A.  Absolutely. Again, it's the -- the fleshfly is the common
4 name for a group called the sarcophagid fly -- fleshfly and
5 there are somewhere around a hundred and fifty, two hundred
6 species in the United States of -- of that family.
7 Q.  Now, do you know -- what sort of work or studies have you
8 conducted to make you familiar with the -- the climate, the
9 geography, the weather, the outdoor conditions, the area
10 centered around West Memphis, Arkansas, and more generally,
11 Western Tennessee and Southeastern Arkansas, Northern
12 Mississippi -- what I would call the plain of the Mississippi
13 River and the central part of America. What -- what sort of
14 work have you done to make you familiar with the outdoor
15 conditions around there?
16 A.  Well, primarily in my graduate studies I took a number of
17 climatological courses which would deal with -- with any area
18 of the world primarily in -- in regards to energy inputs and
19 out-goes on a daily or weekly or monthly basis. That coupled
20 with numerous forensic workshops and research. I have done
21 extensive research over in Knoxville, Tennessee, at what's --
22 the location called The Body Farm with Doctor Bass in the
23 anthropology department over there and have conducted a number
24 of training -- police training workshops across the country but
25 some surrounding this area would be in Western Illinois along


1 the Mississippi River. Down in Pensacola, Florida, we did
2 work. Of course, in Indiana a number of workshops in Indiana,
3 down in Texas. Any number of these workshops entailed placing
4 dead animal carcasses out -- primarily pigs -- hog carcasses –
5 and then doing collections and studying the decomposition over
6 periods of time.
7 Q.  Are you familiar with the National Climatic Data Center?
8 A.  Yes, I am.
9 Q.  And did you request that we provide you information from
10 the National Climatic Data Center?
11 A.  Yes, I did.
12 Q.  And what sort of climatological data would you wish to see
13 from the National Climatic Data Center to assist you in forming
14 opinions about entomological facts relating to May fifth and
15 sixth, 1993?
16 A.  Well, obviously, what -- the -- the most important
17 variable factor that we have with regards to growth and
18 development of insects are the temperatures, and so in a short
19 duration case it would be very important to see and have
20 available the climatological data on an hourly basis mainly the
21 hourly temperatures but other pertinent data such as rainfall,
22 cloud conditions and those -- those types of things would be
23 extremely important in the analysis.
24 Q.  In -- in our discussions another phrase came up --
25 macrophotographs. Are you familiar with that expression?


1 A.  Yes. Primarily that refers to closeup photographs which
2 would -- a macrophotograph would -- would show -- it has to do
3 with the relationship of -- of one-to-one or two-to-one or
4 three-to-one or four-to-one magnification. But it would -- I
5 like to see if we have macrophotographs available because it
6 may show details of the insect colonization that might be seen
7 on the remains.
8 Q.  In this case, were you provided any macrophotographs?
9 A.  There were some photographs of -- of the -- the autopsy
10 that -- I guess -- I guess I might consider them macros
11 although they weren't really detailed -- real closeups but I
12 did see some photographs that could be construed as -- as what
13 would be called macros at least to my recollection.
14 Q.  Now, we provided you certain information which you could
15 accept as a hypothetical for purposes of forming opinions. We
16 gave you a day, May -- May fifth and another day, May sixth,
17 1993, did we not?
18 A.  That's correct.
19 Q.  We gave you some information that the victims were last
20 seen sometime around 6:00 or 6:30.
21 A.  That's correct.
22 Q.  We speculated that that was likely in the daylight hours
23 with some period of daylight remaining before sundown.
24 A.  Correct.
25 Q.  We indicated to you that they were discovered sometime in


1 the area of 1:00 to 1:30 on the following day floating in
2 water.
3 A.  That's correct.
4 Q.  And that the temperature of the water was determined by
5 the coroner to be approximately sixty degrees.
6 A.  That's my recollection.
7 Q.  And we told you that they were examined by the coroner
8 after he was called at 3:20 P.M. and pronounced somewhere
9 between 4:00 and 4:10 P.M. in the afternoon of May the sixth.
10 A.  Again, that's my recollection.
11 Q.  As a -- as a sort of an aside, we also indicated that the
12 temperature -- the ambient temperature in the area on May the
13 seventh according to the National Climatic Data Center --
14 according to, at least, the discharge observations of the
15 Mississippi River, were around seventy-two degrees and the air
16 temperature around seventy-nine degrees, and I think you gave
17 me an explanation of why the temperature of water might be
18 something less than the temperature of ambient air. Do you
19 recall giving me that explanation?
20 A.  Yes, I do.
21 Q.  And -- and what is the reason why water may be cooler than
22 the air on a given day?
23 A.  Well, it's because of the capacity for water to -- to
24 maintain its -- its temperature. And water will fluctuate a
25 lot less variability-wise than the air temperatures. A good


1 example is if you're a -- a city -- say -- say for instance,
2 Chicago, it's -- it's on Lake Michigan and the -- the lake
3 effect on the temperatures of -- of Chicago have a -- a
4 dampening effect on the variabilities -- the ranges of the
5 temperatures. So water has a tendency to -- to run behind the
6 average monthly ambient air temperatures and so due to the --
7 due to the factors -- the prop -- the physical properties of
8 water having this ability to hold temperature that it would be
9 considerably cooler than ambient temperature and less variable.
10 Q.  Would that be affected by water running off from -- from
11 the slope of land, rainfall and water from the other sources
12 running over land, would that tend to affect the tendency of
13 the water to be cooler than warming air as we move toward --
14 A.  Oh, abso -- absolutely.
15 Q.  So you don't find any quarrel with the fact that the air
16 being in the high seventies the water could still be sixty
17 degrees? You're not -- you're not quarreling with those
18 findings of the coroner, are you?
19 A.  Absolutely not. It makes sense.
20 Q.  Let me go back then on track a little bit. You told us
21 that there are many species of both fleshflies and blowflies.
22 Are there -- are these types of flies common in the area of the
23 country centered on West Memphis, Arkansas --
24 A.  Absolutely.
25 Q.  -- as to your knowledge and experience?


1 A.  Absolutely.
2 Q.  Are there other carrion insects that tend to colonize on
3 deceased animals and people in addition to blowflies and
4 fleshflies?
5 A.  Absolutely.
6 Q.  For example?
7 A.  We have a number of beetles that will -- will colonize
8 directly or come in as predators on the eggs and larvae that
9 are developing from the flies. So we have a predatory element
10 that comes in. And then as the decomposition progresses, the
11 composition of the body changes over a period of time and we
12 find that the -- that other insects will then find the food
13 resource attractive while the first ones to colonize will find
14 that they're completing their life cycles. They'll fly away.
15 Q.  So they've already used the resource, and new insects will come
16 in and utilize the changed resource. It's -- what it's called
17 is -- is food partitioning by organisms to extend survivability
18 of -- of certain organisms and to utilize a food source
19 entirely.
20 Q.  Do you have a -- is there or is there not a -- a cycle or
21 succession in decomposition so that you could -- allowing you
22 to tell us what happens first and what happens next when
23 animals discover a deceased animal or human?
24 A.  That's one of the ways, yes. And that's one of the ways
25 that forensic entomology is able to estimate times of death


1 when we get into two, three, four, five, six, seven, eight
2 weeks out from postmortem.
3 Q.  Tell me again what that cycle is, that is, what happens
4 first.
5 A.  Primarily the -- we -- we go through different stages of
6 decomposition and we'll have, of course, a fresh stage and to
7 -- to simplify things, it'll move into the bloated stage that
8 we're familiar with, with a dead dog laying along the county
9 road in the summer time. It bloats up very, very quickly. And
10 then deflates and goes into a really -- we call it the
11 putrefaction period of the decomposition where extensive
12 decomposition is taking place. And this is where the -- the
13 maggots of the blowflies and some of the early colonizers
14 really do their part in ridding the countryside of dead
15 animals.
16 Then it -- then it dries. It goes into a drier stage and
17 the -- the composition changes and so then we have additional
18 insects coming in using this food resource and consuming this
19 otherwise very cluttering situation. And eventually we will
20 get down the road to several weeks or several months --
21 depending on temperatures -- when the -- the only thing that
22 will remain of this animal would be the bleached bones.
23 Q.  Let me take you then to the circumstances provided you
24 for forming opinions about this case. First, do carrion
25 insects colonize on living breathing people?


1 A.  No. On -- on rare exceptions there can be some
2 colonization, but it has to be in conjunction with dead de --
3 or dead necrotic tissue on a living animal or human being. But
4 that -- that is not the way it normally works.
5 Q.  What is the first sort of carrion insect or the first
6 event that occurs when a carrion insect is in the area of a
7 dead person or animal?
8 A.  Immediately upon death there is the possibility if the
9 temperatures are high enough that a blowfly -- the blowflies
10 are the first guys in. And a blowfly can come in immediately
11 and begin investigating whether this is gonna be a good food
12 resource for this female -- primarily the females because
13 they're carrying the eggs -- they're gonna be laying the eggs.
14 She's investigating whether this is gonna be a good food
15 resource. And she will study where the -- the most appropriate
16 places to lay her eggs would be. She'll investigate the --
17 primarily the nose, mouth and eyes unless there are sights of
18 trauma on the remains. In other words, cuts or openings in the
19 skin which would allow access to the underlying tissues -- the
20 -- the soft tissues. And in a matter of minutes to a matter of
21 hours that initial -- initially colonizing female blowfly will
22 then begin to lay her eggs.
23 As she lays her eggs, this stimulates some chemical
24 attractants that will attract then other female blowflies to
25 come in eventually ending in what's called ova position frenzy


1 or egg-laying frenzy where we have literally tens if not
2 hundreds -- and -- and I'm sure most of us have experienced
3 again the old -- old dog laying along the road or the raccoon
4 laying along the road -- that will have literally tens if not
5 hundreds of blowflies buzzing around laying eggs and -- and
6 doing the things they're doing to carry on the next generation.
7 Q.  Did you notice if the coroner's report specified finding
8 fly larvae in the eyes and nostrils of one victim?
9 A.  Yes, I did.
10 Q.  Did you notice the coroner's report finding fly larvae in
11 the eyes of another victim?
12 A.  Yes, I did.
13 Q.  And finding fly larvae in the eyes and nose of a third
14 victim?
15 A.  Yes.
16 Q.  Would that be -- would that be information that would
17 allow you to examine the larvae and make some determination of
18 when the larvae were hatched?
19 A.  Absolutely.
20 Q.  How would you do that?
21 A.  The specimens would be collected and this is -- this is
22 what I do across the country as far as training law enforcement
23 officers -- is that the larvae would be -- the insect specimens
24 would be collected, some preserved, some kept live for growing
25 to adults and based on the species, based on the stage that's


1 recovered and preserved and based on the climatological data,
2 we could count backwards from the time these insects were
3 collected and come up with a -- a -- a determination of how
4 long or how short4the time frame that that body had been there
5 -- was.
6 Q.  To do that, would you need to have a specimen of the
7 precise larvae that were found on the location where the
8 larvae were observed?
9 A.  That would be the best way obviously.
10 Q.  Why would you need to have that particular species?
11 A.  Well, we need the specimens because first of all we need
12 to determine species. We need to determine stage and relate
13 those -- species and stage back to temperature. Because
14 different species of blowflies take different periods of time
15 to grow and develop to the different stages of their life
16 cycle. There's a variability there.
17 Q.  Is it possible for -- back -- did you find any reference
18 in the coroner's reports to the presence of the observation of
19 any eggs or egg shells from which the maggots had hatched?
20 A.  Well, the only reference I recall is a reference to
21 larvae.
22 Q.  Would you expect to find evidence of eggs or hatched eggs
23 on a place where larvae were seen?
24 A.  We could very readily see, and I do see oftentimes
25 hatched eggs.


1 Q.  Is it possible to examine the eggs and determine when the
2 eggs were laid?
3 A.  Absolutely.
4 Q.  How would you do that?
5 A.  Generally, we would collect some and pre -- we'd collect
6 sample and preserve part of the sample. We would keep part of
7 the sample alive, take it to the laboratory, and put it --
8 putting it under known temperatures we could time how long it
9 took for those eggs then to hatch to larvae, and then we could
10 backtrack and say very, very precisely when those eggs had been
11 laid.
12 Q.  Can you then examine larvae and cite from -- and
13 macrophotographs or information about the place the larvae were
14 found and determine when the eggs were laid?
15 A.  Absolutely. That's the premise and -- and the procedure
16 with which we make our precise estimates of postmortem interval.
17 Q.  Do -- would the presence of water be a factor that would
18 eliminate evidence of eggs and eliminate evidence of when eggs
19 were laid?
20 A.  Water is a barrier and if -- if a animal is in water,
21 covered with water, then the blowflies would not have
22 accessibility. As far as the eggs potentially being washed
23 off, eggs have -- when the flies lay their eggs, they have
24 sticky material and they kind of clump 'em -- group 'em
25 together and they stick to the -- they will stick to the


1 substrate that the eggs are being laid on.
2 Q.  Within some general estimate of time, can you tell me what
3 the possible range is for eggs to hatch from the time they're
4 deposited until hatching? Allow -- understanding that
5 temperature and other factors may influence that time.
6 A.  Rule of thumb, at say seventy-five to eighty degrees for
7 the summer species of blowflies which would be expected in May
8 -- that time of year here -- would be somewhere around twelve
9 to sixteen, eighteen hours. Again, depending on temperature
10 and depending on species.
11 Q.  If a person was living and placed in water and submerged
12 in water while still living, would you expect that blowflies or
13 fleshflies could deposit eggs on that living person before they
14 were placed in the water?
15 A.  Absolutely not.
16 Q.  Are there also carrion insects that carry their larvae
17 alive so that they deposit living larvae instead of eggs when
18 they make a deposit on a dead creature?
19 A.  Yes, there are.
20 Q.  Are those also insects that may exist in the area of the
21 United States focused on West Memphis, Arkansas?
22 A.  That's a possibility.
23 Q.  And is this separation or the identification of various
24 species something that an entomologist is generally trained to
25 do?


1 A.  That's correct.
2 Q.  As to this case, did you also read the autopsy report
3 prepared by Doctor Peretti?
4 A.  Yes, I did.
5 Q.  And did you notice that he performed the autopsy on May
6 the seventh, 1993?
7 A.  Yes.
8 Q.  And did you see a reference to observing larvae in the
9 left periorbital region of one of the victims?
10 A.  Yes.
11 Q.  Is that something you would have expected to see on the
12 following day?
13 A.  It would be possible with regards to, again, temperature
14 influences on the remains.
15 Q.  Have you worked as a consultant in cases in which the
16 inquiry was directed -- not at larvae of fleshflies or
17 blowflies or the carrion insects -- but in which the inquiry
18 was directed at the phenomenon of mosquito bites?
19 A.  Yes, I have had that opportunity.
20 Q.  Tell us about that.
21 A.  I had one case which I was called by Doctor Paul Bass,
22 Washington State University, a colleague of mine. He and I
23 coedited our "Entomology in Death" book procedural guide.
24 Well, he called me with the -- the case where he had found a
25 remains in a heavily mosquito-infested area that there were


1 little pin -- pinprick spots on the remains which were
2 perceived to be what's called petechiae which is consistent
3 with asphyxial deaths. And the problem we had -- or the
4 problem that Doctor Bass had with this petechiae was that it
5 was only found on areas of the body, particularly the upper --
6 upper portion of the -- the thorax just below the neck and in
7 the neck area where the person had a T-shirt on and the only
8 place that this petechiae was present was where there was
9 exposed skin.
10 As it turned out, the conclusion that Doctor Bass came up
11 with and that I concurred with him on was that these were --
12 the only explanation would be that these were feeding marks
13 brought about by the mosquitoes trying to find blood pressure
14 in this dead individual. They couldn't find any and they
15 continued to probe and put down -- I guess it's like drilling
16 an -- an -- an empty oil well. You put down empty holes and
17 you don't get any blood pressure -- any oil coming back up, so
18 they go onto another site. And these were definite artifacts
19 left -- postmortem artifacts left on the body from mosquitoes.
20 Q.  Were you working as a forensic entomologist in May and
21 June of 1993?
22 A.  Absolutely.
23 Q.  Consistent with your custom and practice, if you had been
24 contacted by the prosecution or by a representative of the
25 defense and retained to examine the facts available for the


1 purposes of forming entomological studies and opinions, what
2 steps would you have taken?
3 A.  Well, obviously, the -- the references to larvae would --
4 would be critical and could @- could provide tremendous amounts
5 of information regarding the instances with regard to the
6 deaths of individuals and so instruction as to how to properly
7 collect -- keep some of these specimens alive and preserve
8 others -- and then ship them posthaste to myself or other
9 qualified forensic entomologists would be -- would be
10 paramount.
11 Recovery of climatological data would be extremely
12 important -- critical in -- in my analysis. And then with
13 regards to the -- the mosquito question, first -- first point
14 of inquiry on that would be to contact the mosquito abatement
15 district in -- in this local area to see what species and --
16 and levels of concentrations of the species were present on
17 those dates, find out if there were aggressive species present
18 which there are in this area and at that time of year, but this
19 would a confirmation. Then to go into the literature to
20 research the literature to see how many cases we could document
21 that had the potential of mosquito bites present.
22 And then finally to actually conduct an experimentation to
23 find out the -- the intensity and persistence of mosquito bites
24 on a decedent -- animals.
25 Q.  Now, in your customary -- in your work and your custom


1 practice does it require an entomologist to collect specimens?
2 A.  Not necessarily. That's why I do these training sessions
3 all over the country. I'm -- I'm -- I -- I train medical
4 examiners, coroners, and n- and police officers all over the
5 country and in Canada and --and elsewhere to make these
6 collections.
7 Q.  In this case you were not -- did you see any evidence that
8 anyone collected any specimens?
9 A.  I found no reference to that at all.
10 Q.  Did you find any reference to anyone seeking to study the
11 facts about mosquitoes and mosquito abatements and presence and
12 species of mosquitoes in the area in May of 19937
13 A.  He had no indication of that in -- in any of the reports I
14 reviewed.
15 Q.  Did you see any -- were you provided any reports through
16 the pathologist's report or the coroner's reports or any
17 testimony that you have seen indicating that anyone sought to
18 take a look at the evidence from an entomological point of
19 view?
20 A.  No.
21 Q.  And did you see any evidence that anyone sought to do any
22 experiments to make any determination of when these eggs were
23 laid for the purposes of determining when -- determining the
24 time of death?
25 A.  No.


1 Q.  Is there also in the information we provided some -- some
2 basis to your forming opinions about the place of death? That
3 is, whether it happened inside or outside or in the water? Did
4 you see any indications to make you think that it necessarily
5 happened at the place the victims were found or at some other
6 place?
7 A.  Well, in -- in my estimation and the limited research that
8 I was able to -- to conduct -- literature research and
9 consultations -- it -- I was -- I was concerned with the fact
10 that we lacked any indication whatsoever of mosquito bites on
11 -- on three nude children that were supposedly exposed in this
12 heavily-infested mosquito area for a period of -- of minutes to
13 maybe an hour. So that would lead me to the conclusion that
14 maybe that did not occur there. And also the possibility that
15 if these larvae that were present were old enough it -- it
16 could -- it could show that -- there could possibly be the --
17 the ability for colonization of a -- of a fly or a couple of
18 flies in a lighted area -- a lighted building of -- of some
19 sort.
20 When I say flies are not active at night, that's in
21 unlighted areas. But it has been shown through research and
22 through documentation of cases that -- I've had some cases
23 myself where I've been in -- where bodies have been decomposing
24 and it's 10:30, 11:00 at night. And there were some flies
25 working on the bodies at the time. So that would be a


1 possibility too.
2 And the entomological evidence could have helped explain
3 some of those questions.
4 Q.  Let me see if -- if I am clear on what I think I heard you
5 say. Blowflies and fleshflies lay eggs in daylight or man-made
6 light.
7 A.  Artificial lighting, yes.
8 Q.  Artificial light.
9 A.  Right.
10 Q.  But they do not lay eggs in the dark?
11 A.  No.
12 Q.  By examining the species -- excuse me -- by examining the
13 specimens seen by the coroner, you could make a determination
14 of species?
15 A.  That's correct.
16 Q.  From a determination of species -- and you then would look
17 for the level of maturation of the specimens of that particular
18 species?
19 A.  That's correct.
20 Q.  And could extrapolate the time that the eggs were laid?
21 A.  Based on temperatures.
22 Q.  And then if the eggs were laid at a time when the sun was
23 down -- at nighttime -- then the eggs had to be laid at a time
24 that the bodies were located near artificial light?
25 A.  That would be my conclusion, yes.


1 Q.  And there is no indication of anyone taking an interest in
2 developing entomological evidence in this investigation?
3 A. Not to my knowledge.
4 MR. MALLETT: Thank you very much.
5 THE COURT: I -- I just have one question.
6 Did you take into consideration the effect of
7 wind forces at the time?
9 THE COURT: Wind.
10 THE WITNESS: I did not look directly at the
11 wind velocities but --
12 THE COURT: Would that not have been a factor
13 on certain insect bites, particularly mosquitoes?
14 THE WITNESS: That could be because wind will
15 retard or reduce the amount of activity mosquitoes
16 can -- can exhibit.
17 THE COURT: Now then, does anybody know what the
18 wind forces were?
19 MR. MALLETT: If I may have a minute, Your
20 Honor, we may.
21 THE WITNESS: Wind -- wind, Your Honor -- wind
22 doesn't seem to affect blowfly flight. I had some
23 studies done in eighty-six or eighty --
24 THE COURT: I was concerned about mosquitoes.
25 THE WITNESS: Oh, okay. Okay.


1 MR. MALLETT: Let me mark for identification --
2 and if we could have a staple or paper clip at a
3 convenient time -- that's Exhibit Sixty-five which
4 is a -- five pages headlined upper left corner
5 "National Climatic Data Center."
8 THE COURT: It should have the wind in there.
10 Q.  I want to show you these and ask if you've seen them
11 before. (HANDING TO WITNESS. )
12 A.  ( EXAMINING. )
13 Q.  I'm only asking now if you've seen those before?
14 A.  Yeah, these are the data that I -- I relied upon.
15 Q.  And are these the sort of data that people in your
16 profession customarily would look at in -- to assist them in
17 forming opinions?
18 A.  Yes, sir.
19 MR. MALLETT: Move the exhibit of Petitioner's
20 Sixty-five.
21 MR. DAVIS: No objection.
22 THE COURT: All right, it may be received
23 without objection.


2 Q.  Does the National Climatic Data Center tell us anything
3 about the wind on May seven or around that time?
4 A.  I believe it would -- would on the third or fourth page
5 -- let me get the right level here. (EXAMINING.) It appears
6 that -- that on that day -- on the fifth and on the sixth there
7 were some winds, primarily in the five to eight mile an hour
8 range, possibly gusting to seventeen.
9 Q.  Now, we can't tell from this whether that's wind on the
10 top of a dam or down in a hollow or in the woods or standing
11 on somebody's back porch, or do you know?
12 A.  Well, that would be from wherever those -- wherever those
13 data are collected -- the exact location or site.
14 Q.  Do you happen to know where these data were collected?
15 A.  No, I don't.
16 Q.  But this is information that's available to the general
17 public?
18 A.  That's correct.
19 Q.  And would winds of anywhere from five to six miles an hour
20 gusting occasionally to seventeen materially affect the ability
21 of the entomologist to form opinions about the time that eggs
22 were deposited, hatched, where the bodies -- were there -- uh
23 -- uh -- living creatures died in the daylight or dark and
24 where they died, is this amount of wind an amount of wind that
25 is gonna change your mind or opinion about your previous


1 testimony?
2 A.  Absolutely not.
3 Q.  Okay.
4 MR. MALLETT: Thank you. No further questions,
5 Your Honor.
8 Q.  Doctor, let me kind of -- let me kind of go in reverse
9 order of how Mr. Mallett asked you questions. Let me ask you
10 some questions about the mosquito bites.
11 Number one, what did you use in making a determination
12 that there was no evidence of mosquito bites on the children?
13 A.  Utilizing the observations from the initial coroner's
14 report and then the forensic pathologist's autopsy reports and
15 then studying the photographs -- with photographs I was
16 provided with -- as is intensively as I could observe.
17 Q.  And when you say "observing mosquito bites" that's what
18 we're all familiar with in terms of when we are bitten by a
19 mosquito and the type of reaction the human body has?
20 A.  It could be that that reaction also as I have explained --
21 these small little petechiae -- these little pinpricks that
22 were observed in -- in this case I had in Northwest -- up in
23 Washington -- the Northwest part of the country. I would think
24 that -- that there could be some possibility for those -- for
25 that type of residual artifact to be left on the body.


1 Q.  And in that case you said that up until you examined the
2 body or one of your -- one of your compatriots in the field
3 examined the body, it was determined that those marks were not
4 insect bites but they were thought to be petechiae, correct?
5 A.  That's correct.
6 Q.  Okay. So what you're describing in that instance is a
7 situation where it's not the classic insect bite --
8 physiological response of the body -- but it's something that
9 appeared to be something else, correct?
10 A.  That's correct.
11 Q.  Okay. And did you search the autopsy report to determine
12 if there was any evidence of petechiae noted by the medical
13 examiner in the autopsy report?
14 A.  I think there was -- there -- well, I don't -- I -- I
15 really don't recall the -- the definition of petechiae on the
16 -- on the body itself.
17 Q.  And that would be hard to ascertain in injuries that had
18 sustained multiple lacerations wounds and multiple
19 disfigurations; is that true?
20 A.  Well, that would obviously mask those very, very minute
21 artifacts, yes.
22 Q.  Okay. And so when you say in one case you've had where
23 the evidence of insect bites were similar to petechiae, you
24 don't know if in fact that existed in this case and it just
25 wasn't identified?


1 A.  I don't know, no.
2 Q.  Okay. So there could have been mosquito bites that were
3 existent on the body but just weren't identified by a medical
4 examiner who didn't understand that what appeared to be
5 petechiae could be in fact an insect bite?
6 A.  That's a possibility.
7 Q.  Okay. Now, also a -- the -- when you visibly observe an
8 insect bite such as a mosquito bite, what you're observing is
9 the body's physiological response to that insect's having
10 bitten them, correct?
11 A.  Yes.
12 Q.  Okay. And that --
13 A.  What -- what -- what we classically think of a mosquito
14 bite where we have the little welt and that, yeah.
15 Q.  Okay. And mosquitoes, number one, it's just the female
16 mosquito that bites, correct?
17 A.  They're the ones that have the mouth parts, yes.
18 Q.  Okay. And so half the mosquitoes -- are -- are they --
19 are mosquitoes fifty percent male and fifty percent female
20 approximately?
21 A.  Well, it depends on the species but that's -- that's --
22 that's kind of the summation to go on.
23 Q.  Okay. So half the mosquitoes in any given area aren't
24 capable of inflicting a mosquito bite, correct?
25 A.  Generally the ones that are landing on the animals --


1 whether they're human or whether they're dogs or sheep or
2 whatever -- are the females that are taking blood meals.
3 Q.  Okay. But half the mosquitoes in any given area aren't
4 capable of inflicting mosquito bites, correct?
5 A.  Well, technically, yes.
6 Q.  Okay. And when we -- and mosquitoes don't bite people
7 that are already deceased, correct?
8 A.  No.
9 Q.  Okay. And so what we observe when -- or when you observe
10 an insect bite, it's the body's physiological response to that,
11 correct?
12 A.  Yes.
13 Q.  And that physiological response is different for different
14 people and for different insects, correct?
15 A.  Sure. Some -- some people are highly sensitive. Others
16 don't react very much at all.
17 Q.  Okay. In fact some people could be bitten by a mosquito
18 at this point in time, and ten minutes later you would not be
19 able to observe any noticeable reaction in that individual,
20 correct?
21 A.  That is correct.
22 Q.  Okay. And some people could be bitten by a mosquito and
23 form a tremendously large, very noticeable welt, correct?
24 A.  Right.
25 Q.  Okay. And the duration that those insect bites exist for


1 is different for different people, correct?
2 A.  That depends on how your body is able to handle the
3 reactions.
4 Q.  Okay. And if death ensues in a very short time period
5 after a person receives an insect bite, would that affect the
6 physiological response of that individual?
7 A.  In -- in my study of the literature and some con --
8 consultation it was surmised that if you have the reaction and
9 then the individual dies, it would be a longer period of time
10 for that inflammation to persist because the body wouldn't have
11 its normal activity -- physiological activities trying to rid
12 the body of that reaction.
13 Q.  Okay. But the body's physiological response to an insect
14 bite occurs over a period of time, correct?
15 A.  Usually pretty -- pretty fast. It's a short, a quick
16 duration once the initiation of the -- of the bite has taken
17 place.
18 Q.  Okay. And it's not uncharacteristic to have an insect
19 bite such as a mosquito on one afternoon and have it disappear
20 by the next morning, correct?
21 A.  Oh, absolutely not.
22 Q.  Okay.
23 A.  And usually it's faster than that. Most of us -- I -- I
24 -- I don't react very much at all but others -- other people
25 react very, very violently to it.


1 Q.  Okay. And do you factor that in in terms of the
2 individual's response to the insect bites in determining the
3 significance of an absence of mosquito bites on a particular
4 individual ?
5 A.  I think it would have to be considered of course.
6 Q.  How do you determine it?
7 A.  I don't know.
8 Q.  Have you ever tried?
9 A.  No.
10 Q.  Okay. Is that because in regard to using the absence or
11 presence of mosquito bites that that's not a very common tool
12 in determining or estimating the location of the person at the
13 time of their death?
14 A.  That's exactly right.
15 Q.  Okay. Is there any literature written on that?
16 A.  There -- I think we've -- I think there -- it may not be
17 published but I -- I have spoken with some entomologists that
18 have done studies with no-see-ums and mosquito bites on pigs
19 and then they -- if I recall -- the pigs were sacrificed and
20 the -- the duration of time that it took for those welts to go
21 down was a few hours and that study is -- is available
22 somewhere and it's in the literature. So there is some
23 documentation in the literature at this point --
24 Q.  Okay. So it's --
25 A.  -- with regard to pigs.


1 Q.  Okay. And so -- and one reason this Doctor Bass that you
2 worked with worked with human cadavers is because the reactions
3 of animals and humans aren't necessarily the same, correct?
4 A.  Not -- not -- that's not quite correct. What we have here
5 is -- and -- and the work I've done at the body farm over the
6 last ten years has been to establish the fact that humans and
7 pigs are very, very similar in their physiology and, of course,
8 we know anatomically they're very correct -- they're very, very
9 similar. Many pig parts are used in human transplants, and so
10 what I have done over the last several years is to establish,
11 first of all, if decomposition and the progression of
12 decomposition consistent with pigs and humans and then also the
13 insects that are attracted to humans would be the same insects
14 that are attracted to pigs. And the reason we do this is
15 because obviously Doctor Bass' facility in Knoxville is the
16 only place in the world where we can actually use humans for
17 field studies of decomposition research.
18 I can't go down to Texas. I can't go to Indiana and
19 utilize human bodies for my field studies. So we have to have
20 something else and this is why it's so important to do this
21 calibration of our pigs and the humans to show that -- to show
22 -- either to prove or disprove that the pigs would make a very
23 adequate model in lieu of using human beings.
24 Q.  Okay. And if I understood, the one study that you're
25 familiar with and which it was done on pigs there were insect


1 -- mosquito bites observed --
2 A.  Mosquito or no-see-ums, one of the two.
3 Q.  -- okay -- observed occurring on the pig and noted where
4 those locations were, then the pig was slaughtered, and then a
5 few hours later there was no observable indication of the bite.
6 Is that what you're --
7 Q.  That's -- that's the way I understand the -- the
8 experiment, yes.
9 Q.  And you indicated that that was -- that the anatomy and
10 physiological response of pigs is similar to that of humans and
11 that's why you use them for tests?
12 A.  That's correct.
13 Q.  Okay. Well, if that's the case with pigs then -- which
14 with -- and I don't mean to be crass -- but with three eight-
15 year-old victims if they were to receive mosquito bites and
16 then were slaughtered, and then two hours later would you not
17 also expect that there'd be no visible view of the insect
18 bites?
19 A.  I don't know.
20 Q.  Okay. Well, that would be important if you were gonna
21 start making -- giving opinions as to the absence of mosquito
22 bites being important in ascertaining where they were located,
23 correct?
24 A.  That would be -- that would be a point, yes.
25 Q.  Okay. Now, let's -- let


1 flies, and I need your help on something because there's
2 words I have no idea how to pronounce. One is
3 C-A-L-L-I-P-H-O-R-I-V-A-E.
4 A.  That's calliphorivae. That's a scientific family name of
5 the blowflies. So blowflies will work. That's what
6 calliphorivae means.
7 Q.  Okay.
8 A.  So we can -- we can -- we can dispense with that big name.
9 Q.  Okay. And so blowflies lay eggs and those eggs turn into
10 larvae?
11 A.  That's correct.
12 Q.  Okay. And that's the natural progression of things and
13 then after larvae eventually they turn into the adult blowfly?
14 A.  Well, they -- they go through different stages of larvae
15 and then they go into the -- the -- the life cycle of the
16 blowflies is very similar to what we experience in butterflies
17 and moths. And so they have a cocoon stage which we don't call
18 it a cocoon. We call it viparium (PHONETIC). But that's where
19 they make that metamorphosis -- that tremendous change of body
20 form into a -- a voraciously feeding, crawling creature into
21 the winged adult that can move very, very rapidly over great
22 distances.
23 Q.  Okay. And how do you pronounce S-A-R-C-O-P-H-A-G-I-D-A-E?
24 A.  Sarcophagidae and we can -- we can make this one easier
25 too.  That's fleshflies.


1 Q.  Fleshflies?
2 A.  The fleshflies.
3 Q.  Okay. And you said those were common in this area,
4 correct?
5 A.  Yes.
6 Q.  And you would expect to see evidence of fleshflies on a
7 -- a -- a deceased individual if they were exposed to the
8 elements?
9 A.  Not nearly as readily as I would expect to see blowflies.
10 Blowflies are our primary guide. We -- we -- I use the
11 fleshflies because they have the potential to be here. In my
12 -- in my four hundred and some cases that I've done with
13 regards to insects being present on human bodies, I -- I may
14 have had one case, if that, where we've had exclusive
15 colonization of bodies out-of-doors even in -- in the heat of
16 summer -- this would be July and August. Fleshflies are much
17 more susceptible to colder weather than the blowflies. And so
18 with the fleshflies I usually see them in the summertime but in
19 connect -- in conjunction with blowfly colonization inside
20 dwellings, not outside. But the potential for those fleshflies
21 to be there is -- I mean, there is potential for them to be
22 there so, therefore, we -- I -- I think that needs to be
23 included.
24 Q.  Okay. And with the fleshflies, they don't start by laying
25 the eggs that then turns into a larvae, they lay a larvae


1 initially, correct?
2 A.  Yeah, they skipped -- they skipped a stage and what it
3 does is it gives them an advantage -- an one-ups-man on -- you
4 know, if we could be born at -- at -- at three and a half to
5 four feet tall and have -- have all this instead of going
6 through the infancy, we'd have an advantage possibly on
7 survival.
8 Q.  Okay. And you indicated that although water wouldn't
9 necessarily wash off the eggs, water could possibly remove some
10 evidence of eggs on a human body, correct?
11 A.  I think it's potentially possible, yes.
12 Q.  Okay. In other words, if eggs were deposited on a human
13 body before it was submerged in water, you might or might not
14 still have evidence of eggs on that human body after it was
15 removed from the water.
16 A.  That's correct.
17 Q.  Okay. And were you aware as to the time period that the
18 bodies were exposed -- and I say, to the elements -- basically
19 in an unsealed container after they were removed from the
20 water?
21 A.  The duration?
22 Q.  Yes, sir.
23 A.  I believe it was from -- from 1:15 to about 3:30 or 4:00
24 in the afternoon when the coroner finally arrived and
25 pronounced. Is that -- is that the interval you're talking


1 about?
2 Q.  Yes, sir.
3 A.  Yes.
4 Q.  Okay. And during that time period, they would have been
5 exposed to flies that were existent in the area in the woods
6 where the bodies were recovered, correct?
7 A.  It certainly would be possible.
8 Q.  Okay. And the only way that wouldn't happen is if you had
9 them in some sort of hermetically sealed container immediately
10 upon removing them from the water.
11 A.  Well, I don't know whether it'd need to be hermetically
12 sealed but a body bag would -- would reduce the chance of
13 colonization of the remains at that point.
14 Q.  Okay. But you know that didn't happen?
15 A.  To my recollection -- or to my study of the -- the
16 documents that have been sent to me, it didn't happen.
17 Q.  Okay. And what you've told us is that a forensic
18 entomologist would -- it would have been nice -- or it would
19 have been beneficial if a forensic entomologist could have
20 examined some preserved -- either eggs or larvae -- that were
21 removed or noted on the bodies, correct?
22 A.  It would be very beneficial for the entomological evidence
23 to be assessed because -- not only to preserve but also to have
24 some kept alive to rear to adults so we could make positive
25 species identification.


1 Q.  Okay. Other than being able to say that the medical
2 examiner should have preserved this or that the coroner should
3 have preserved it, how do you suggest a defense attorney deal
4 with that once that evidence hasn't been preserved?
5 A.  Obviously we -- we search the -- the records for any
6 documentation which would lead any further ability of the
7 entomologist to make whatever determination would be possible
8 such as photographs. And that's why -- that's why I requested
9 macrophotographs.
10 Q.  Okay.
11 A.  Because there have been several cases -- a number of cases
12 -- where the collections weren't made but from a very good set
13 of scene and autopsy photographs, I was able to make
14 determinations based on scales that were in the -- in the
15 photographs that I could take measurements of the -- of the
16 maggots and knowing what species to expect, we could come up
17 with the most probable time based on the photographs in -- in
18 the -- from the scene and the autopsy.
19 Q.  Were the photographs -- were you able to use those for
20 that purpose in this case?
21 A.  There was nothing that I saw in the photographs that
22 showed any eggs, larvae or any entomological evidence other
23 than what I -- what I perceived as potentially some -- either
24 fish or -- or insect related -- aquatic insect -- or aquatic
25 arthropod damage. Arthropods being crayfish or lobsters or


1 crabs or whatever. Those are arthropods. So it -- it would
2 be possible that I observed some of this -- some of this trauma
3 on the body I think could have been feeding of some type of
4 aquatic organisms.
5 Q.  Okay. But in terms of being able to use any of the
6 photographs to identify eggs, larvae, or being able to type it
7 or determine what species it is, were you able to do that?
8 A.  There was nothing shown in the photographs that gave me an
9 opportunity to do that.
10 Q.  Okay. So had a defense attorney involved in this case
11 contacted you after the autopsy had been performed and said,
12 Doctor Haskell, I need you to review the evidence in this case
13 and help me determine based on your entomological studies the
14 time of death, would you have had anything to work with?
15 A.  We would have had the autopsy reports to work with with
16 the reference to larvae, and we would have the climatological
17 data that would be available. Obviously, the -- the species
18 identification would -- would not have been possible because
19 we didn't have the specimens. But there could have been some
20 estimate based on -- on those descriptions alone.
21 Q.  If you don't know what species it was, how can you give an
22 estimate?
23 A.  Well, because we know what -- we know what species would
24 be most common in the area, and we would use the total range of
25 the species that would be common and present in the area and


1 then have that as the wide, wide window for that estimate. We
2 couldn't be nearly as precise, but we could still do it.
3 Q.  Okay. Would an -- would an estimate based on those type
4 of factors be within nineteen hours?
5 A.  It should be.
6 Q.  Okay. And so if we have a time -- from the time they
7 disappeared is from -- to the time the bodies are discovered is
8 nineteen and a half hours, are you gonna be able to get any
9 more exact than that out of the information that was provided
10 here to be able to give any sort of opinion based on a
11 reasonable degree of scientific certainty more exact than
12 nineteen hours?
13 A.  I think so.
14 Q.  Based on this evidence -- not knowing what the species is?
15 A.  By using the total range of species that would be present
16 at that time of year in this area -- which we know -- we know
17 what species would be present as the most common ones. There
18 -- there could be some narrowing of this nineteen hour
19 interval.
20 Q.  Within a reasonable degree of scientific certainty?
21 A.  With a reasonable degree of scientific certainty, it's
22 possible.
23 Q.  Okay. Well, if you don't know whether it's larvae that
24 was laid directly or eggs that turned into larvae, how can you
25 make that determination?


1 A.  I'm going by what the medical examiner -- the forensic
2 pathologist stated. He said he saw larvae. Okay, we would
3 have to -- I would have to -- I'm forced -- forced to go with
4 that premise.
5 Q.  You would have to be forced to determine which species
6 that was that you -- that was evidenced by the larvae, correct?
7 A.  Well, we would take the total -- total number of species
8 available at that time and work off of that.
9 Q.  Okay. But for instance, a blowfly -- or a fleshfly could
10 land on a dead body right now and deposit larvae that could be
11 visualized, correct?
12 A.  That's possible, yes.
13 Q.  Okay. So -- and then if there was larvae that was the
14 result from a blowfly, it might have been deposited there -- if
15 I wrote it down right -- twelve, sixteen, eighteen hours
16 earlier and then turned into a larvae, correct?
17 A.  Well again, I haven't done the analysis. So I -- I don't
18 know. I would have to sit and do the analysis to -- to be more
19 precise in this answer. But, again, just off the top of my
20 head, working -- seeing what I have to work with in the
21 descriptions in the autopsy reports, I'm stating that I think
22 with a reasonable degree of scientific certainty it would be
23 possible to eliminate or confirm what species would be present
24 or not and then make an -- an intelligent estimate based on
25 that. That's what -- that's all I'm saying.


1 Q.  But you can't eliminate fleshflies or blowflies from both
2 being present, can you?
3 A.  Again, it would -- it would dictate sitting down and
4 analyzing the data -- the temperature data, the species that
5 would be present and, again, I haven't not -- I have not done
6 that.
7 Q.  Okay. So you don't know if you could -- if it would be
8 possible based on the evidence available to give an opinion
9 that would narrow it down any closer than nineteen hours or
10 not?
11 A.  No, I had just said that it would be possible. In my
12 estimation without doing the data -- you're asking me if it
13 were possible to do that. I'm saying that it would be
14 possible. I think it would be possible. I may do it and find
15 out maybe it's not possible but we don't -- we don't know until
16 we do that.
17 Q.  So since you haven't done that yet, you just -- you think
18 it would be possible but you don't know.
19 A.  Based -- based on my opinion, that would be possible.
20 Q.  What is the difference between a larvae in terms of
21 visualization, the color of a larvae and the color of an egg?
22 A.  Eggs are white or cream colored and first -- first stage
23 maggots that are new hatchlings out of eggs I think are very,
24 very difficult to see and are oftentimes missed even if they're
25 in larger aggregations -- several hundred if not several


1 thousand -- they're often missed by the investigators doing the
2 case. And so it's much easier to see eggs than it would be
3 larvae -- a first stage larvae. Now, when you get to a second
4 or third stage --big maggots -- everybody sees them.
5 Q.  Okay. To the untrained eye, is it -- is there some
6 difficulty in discerning which is which when they're at their
7 early stages?
8 A.  You mean eggs and larvae? I think that would be possible.
9 Q.  Okay. So it's possible for the untrained eye to mistake
10 larvae for eggs and vice versa?
11 A.  I think it would be possible to think that eggs were
12 larvae. Now, if you have the maggots crawling around, I don't
13 see how you could think they were eggs 'cause eggs don't crawl
14 around.
15 Q.  Right. But when we're talking about a small amount say in
16 an eye cavity or in a nasal cavity, it could be possible to
17 mistake eggs for larvae?
18 A.  I think it's very -- very likely.
19 Q.  Okay. And, of course, that would -- the accuracy of that
20 determination you would be dependent on whatever findings were
21 made by the coroner or the forensic pathologist in that regard,
22 correct?
23 A.  Run that by again, please.
24 Q.  You would be dependent upon the accuracy of the coroner's
25 determination as to whether it was eggs or larvae in -- in


1 determining any time frames that these would be beneficial to
2 you in ascertaining?
3 A.  Well, it would be based on their ability to determine
4 whether they're eggs or larvae, yes.
5 Q.  Okay. And you say that for the untrained person is
6 sometimes a common mistake?
7 A.  It can be.
8 Q.  Just one -- one other question. We know that the water
9 temperature was sixty degrees and that's going to be some
10 thirty-eight degrees cooler than the -- than the normal body
11 temperature of a living human being, correct?
12 A.  Ninety-eight, yeah, okay.
13 Q.  Okay. So a body that soon after death is immersed in
14 water at sixty degrees that will -- it will undergo a
15 significant cooling period; is that right?
16 A.  I would think it would be, yes.
17 Q.  Okay. And does that cooling period, does that -- I know
18 you put -- if you have something that -- an injury that you
19 want to reduce swelling or want to reduce inflammation, a lot
20 of times you put ice on it or cool the area of the injury.
21 Does that have any effect on the human body when it's -- such
22 as insect bites that occur in the body that's dumped into
23 water?
24 A.  It may have some effect. I'm not sure what.
25 Q.  In fact, it may -- is there any -- are you aware of any


1 studies on that or any literature on that?
2 A.  Not to my recollection at this point.
3 Q.  Okay. So you don't know whether the bodies being dumped
4 in sixty degree water could reduce or eliminate physiological
5 reactions to insect bites?
6 A.  I think it -- it's -- again, it's possible.
7 MR. DAVIS: One second, Your Honor.
8 Pass the witness, Your Honor.
11 Q.  You could actually look at a larvae, if one was collected
12 timely as a sample and preserved, and tell us if it was a
13 blowfly or a fleshfly.
14 A.  Absolutely.
15 Q.  And with whatever assistance that you might customarily
16 utilize, a distinction could be made in determining what
17 species of fleshfly or a blowfly as the case may be?
18 A.  There would be the -- a good possibility even with
19 preserved larvae, yes.
20 Q.  Under ordinary climatic conditions such as a day of
21 seventy, eighty degrees, do common blowflies hatch in a period
22 of less than three hours?
23 A.  No.
24 Q.  In your work as an entomologist in forming your opinions
25 and conclusions, does experimentation or the recreation of


1 events based on facts given to you, does that play some role?
2 A.  It sure does. Not every case. But in cases where there
3 are major questions it -- we try to answer the questions
4 through experimentation.
5 Q.  Is there any kind of experiment that would help you
6 determine what sort of carrion insects are available in small
7 creeks in the West Memphis, Arkansas, area in the early weeks
8 of June?
9 A.  There certainly could be --
10 Q.  What kind of experiments?
11 A.  -- experiments -- well, obviously, placement of dead
12 animals for one thing to recreate as closely as possible what
13 we may have the questions needing to be answered in this case.
14 Q.  In this case, there was no collection of specimens.
15 A.  No.
16 Q.  There was as nearly as you can tell no effort to utilize
17 the science of forensic entomology.
18 A.  That's correct.
19 Q.  Wasn't done?
20 A.  No.
21 Q.  And in your opinion should have been done.
22 A.  Absolutely.
23 Q.  Finally, when were you first contacted and asked to take
24 an interest in the tragedy in West Memphis that occurred in the
25 first week in May of 19937


1 A.  The first contact I had was sometime in 1994.
2 Q.  And how did that come about?
3 A.  A writer had contacted me. A gentleman by the name Paul
4 Morrison had contacted me by telephone and then by letter
5 asking if I could review some of the aspects dealing with this
6 case and see if we -- if I could find inconsistencies -- or if
7 there were inconsistencies and problems with the things that
8 were or were not done in this case.
9 Q.  So you and your science were available to people who were
10 interested in doing a thorough investigation as early as 1994
11 in this case?
12 A.  Absolutely.
13 Q.  And did you have correspondence with Mr. Morrison about
14 that?
15 A.  Yes, I did. There were some -- some -- I called a number
16 -- two -- one or two times additional. He had called to get
17 some updates or checkups on -- on what I had found. At the
18 time I was quite busy with other case work and he -- you know,
19 he was doing this on his own, and he had no funding, and so I
20 was unable to continue with much more than a cursory look at
21 the case at the time back in 1994.
22 Q.  And then took no further -- you took no further action
23 until your meeting with Mr. Stidham sometime --
24 A.  Until you --
25 Q.  -- more than a year ago?


1 A.  Until you called, yes.
2 MR. MALLETT: Thank you very much.
3 MR. DAVIS: Just a couple of questions I forgot
4 to ask.
7 Q.  In the very early part of your testimony you said at one
8 time you were the only full-time forensic entomology consultant
9 in the country?
10 A.  That's correct.
11 Q.  Okay. When was that?
12 A.  It -- that would have been a period from about 1993 when I
13 finished my Ph.D. until just -- the time -- okay -- August of
14 this previous year when I took the second job -- the second --
15 second paying job as a college professor.
16 Q. And --
17 A.  I still consider myself a full-time forensic entomology
18 consultant but that's not my only job.
19 Q.  Okay. But from ninety-three until you recently took this
20 job you were the only full-time one in the country, right?
21 A.  That's correct.
22 Q.  Okay. And when did there -- what -- what is the group for
23 forensic entomologists -- what is your professional association
24 called?
25 A.  It's the American Board of Forensic Entomology that --


1 that we have a certification through and that's through the
2 American Board -- or American Academy of Forensic Sciences.
3 Q.  Okay. When did that certification -- when -- when was
4 there a certification given or was it created for the American
5 Board of Forensic Entomology?
6 A.  That came a little later. That came in ninety-six I
7 believe is when the -- the by-laws went into official
8 recognition with the State of Nevada.
9 Q.  Okay.
10 A.  In our -- in our corporate by-laws or the -- non -- non
11 -- whatever we -- we -- whatever the organization is legally
12 defined as.
13 Q.  Okay. So it was in ninety-six that -- that actually an
14 entity such as a board certified forensic entomologist came
15 into existence?
16 A.  Board certified, yes. Board certified forensic
17 entomologist; however, I was a board certified entomologist as
18 early as 1987 through the Entomological Society of America.
19 Q.  Okay. But the -- the specialty or the -- the
20 classification of board certified forensic entomologist did not
21 come into existence until after this case and the trial of this
22 case had already occurred?
23 A.  Yes.
24 MR. DAVIS: No further questions.


2 Q.  I'm sorry. There is an Entomological Society of America?
3 A.  That's correct.
4 Q.  And you have been certified by that group since 19877
5 A.  Yes.
6 MR. MALLETT: Thank you,
7 THE COURT: Anything else? Are you all through?
8 MR. DAVIS: Yes.
9 THE COURT: All right, you may stand down.
10 You're free to go. And we'll take a ten minute
11 recess.
12 (RECESS.)
14 MR. NEWTON: Are you ready to call back the
15 investigator?
16 THE COURT: If you all are ready.
17 MR. MALLETT: If we could just approach the
18 bench for a minute on the record.
19 THE COURT: All right.
21 BENCH.)
22 MR. MALLETT: I've talked to Mr. Davis about
23 handling the situation as follows.
24 I move that we reopen so that we may call Damien
25 Echols for the limited purpose of testifying to his


1 understanding of Exhibit Thirty-three, which is his
2 contract with Creative Thinking International, and
3 his anticipated use of the money that was paid as a
4 consequence of his signing the contract with Creative
5 Thinking International.
6 MR. DAVIS: Well, my position is, Your Honor,
7 that at the last hearing they rested with the one
8 caveat that they were gonna be allowed to present the
9 testimony of the forensic entomologist which I didn't
10 object to. But we had all sorts of time at that
11 point, and at that point they rested. They did not
12 put him on. They did not put on evidence of that
13 nature, and then we proceeded forward with the
14 state's case and --
15 THE COURT: Okay. Just -- just from a legal
16 technical standpoint, what you're wanting to do is
17 use parol evidence to modify a written contract too,
18 which you can't do. But I suppose in a hearing like
19 this it would be -- it would have been appropriate
20 but --
21 MR. MALLETT: I told the state that I expected
22 the Court to sustain the state's objection, and I
23 felt that I personally was protected as much as I
24 could be.
25 THE COURT: Well, I'm gonna sustain the


1 objection.
2 MR. MALLETT: As much as I could be protected.
3 THE COURT: Sure. I don't -- I mean, I think we
4 worry too much about lawyer protection anyway.
5 You've done a tremendous job. It'd be a crock to say
6 you hadn't.
7 MR. MALLETT: I wanted to make an offer and
8 allow the state to object.
9 THE COURT: Sure.
10 Call your next witness.
11 MR. DAVIS: Your Honor, the State would call
12 Mike Allen and I don't think Mike's been sworn in.
14 having been first duly sworn to speak the truth, the whole
15 truth, and nothing but the truth, then testified as follows:
18 Q.  Would you state your name, please, sir?
19 A.  I'm Mike Allen.
20 Q.  And, Mike, you're a criminal investigator with the West
21 Memphis Police Department; is that right?
22 A.  That's correct.
23 Q.  Okay. And you were working in that capacity back in May
24 of 1993; is that right?
25 A.  Yes, sir, I was.


1 Q.  Okay. And you were involved in the investigation
2 surrounding the disappearance of three eight-year-olds, Chris
3 Byers, Steve Branch, and Michael Moore?
4 A.  Yes, sir.
5 Q.  Okay. Now, you were out at the scene in the wood lot next
6 to the Blue Beacon when the bodies were discovered; is that
7 correct?
8 A.  Yes, sir.
9 Q.  Okay. Can you -- can you tell the Court when the bodies
10 were discovered, what was done with the bodies as they were
11 removed from the water?
12 A.  They were placed on the -- on the bank -- the embankment
13 out of the water.
14 Q.  Okay. And about what time that afternoon, do you recall,
15 that the bodies were located and removed from the water? I
16 know it wasn't all simultaneously, but about what time period
17 would that have occurred?
18 A.  Approximately 1:00 o'clock or shortly thereafter.
19 Q.  Okay. And when you say the bodies were placed up on the
20 bank, were they covered immediately or placed in any sort of
21 body bags or anything of that type?
22 A.  No, sir.
23 Q.  Okay. At some point -- did you stay out there for a
24 substantial period that afternoon?
25 A.  Yes, sir, I did.


1 Q.  Did you stay out there until the coroner arrived?
2 A.  Yes, sir.
3 Q.  Now, about how long was it before the coroner arrived at
4 the scene?
5 A.  It was after 4:0'0 o'clock that afternoon.
6 Q.  And if the record reflects that he pronounced them dead at
7 approximately 4:10, would that jibe with your memory?
8 A.  Yes, sir.
9 Q.  Okay. And were they -- during the time period that the
10 bodies remained on the bank, at any point was there -- was
11 there an attempt made to cover the bodies?
12 A.  Not at-- not at first but later that day they -- they
13 were covered.
14 Q.  And what type of covering was used?
15 A.  I believe some form of plastic.
16 Q.  Okay. And was this something that would completely seal
17 the bodies from insects or outside elements, or was it just
18 something laid over the bodies?
19 A.  Just something that would have been laid over the bodies.
20 Q.  Okay. I'm gonna show you what are marked as State's
21 Exhibits Three, Four and Six and ask you if you can identify
22 those for us, please, sir. (HANDING TO WITNESS.)
23 A.  (EXAMINING.) In photo number -- yes, sir. I can identify
24 these.
25 Q.  Okay. And are those pictures of at least bodies of two of


1 those boys that were removed -- shortly after they were removed
2 from the water?
3 A.  Yes, sir. The -- the body -- the number four photograph
4 is.
5 Q.  And which body is that?
6 A.  I believe this is Michael Moore. It doesn't -- doesn't
7 show on here.
8 Q.  Okay. You're not sure as to which one at this point?
9 A.  I'm not for sure. No, sir.
10 Q.  It's been a long a time since you've reviewed those
11 photographs?
12 A.  Yes, sir.
13 Q.  Okay. And number five, can you describe what it depicts
14 -- number four, I'm sorry.
15 A.  Number -- there's four, three and six here.
16 Q.  Okay. Number four, what does it depict?
17 A.  The -- the removal of the body from the water. I am in
18 the ditch here (INDICATING). This is Detective Bryn Ridge that
19 placed the body on the bank.
20 Q.  Okay. And the body -- did the body remain in that
21 relative location as far as being uncovered during daylight
22 hours for a period of time that afternoon?
23 A.  Yes, sir.
24 Q.  Could it be as long as an hour, an hour and a half?
25 A.  I would say from a little after 1:00 o'clock until after


1 -- well after 4:00 that afternoon.
2 Q.  Okay. Now, what about State's Exhibit Three?
3 A.  (EXAMINING.) This is another one of the bodies and later
4 that afternoon the black plastic that -- the plastic that they
5 covered the bodies in. This-- this picture would actually
6 have been taken when the -- when the coroner arrived, I
7 believe. I believe this is Kent Hale in the photograph here.
9 Q.  Okay. And the black plastic we see in there is the
10 covering that was used to cover the bodies?
11 A.  Yes, sir.
12 Q.  Okay. If you would, the last picture, State's Exhibit
13 Six.
14 A.  (EXAMINING.) This is -- these same photographs appear to
15 be similar, yes, sir, with the same thing.
16 Q.  Okay. Now, when you remained out there after the bodies
17 were -- let me ask you this: Do you recall, were there flies
18 out there in the woods or in the area during that time period,
19 or do you remember?
20 A.  I honestly don't remember. I'm sure -- we were in, you
21 know, a wooded area but as far as -- as -- I'm sure there were,
22 but I don't -- I don't -- don't know.
23 Q.  Okay. What did you all do from the time that the bodies
24 were discovered, what investigative procedures did you use to
25 try to gather evidence from the -- from the ditch area where


1 the bodies were found?
2 A.  We sandbagged this particular stream -- or this particular
3 ditch and sandbagged it back, I guess it would be -- it's kind
4 of southwest from where the bodies were located -- and pumped
5 the water out of this ditch to see if there was any -- any
6 other evidence that we could find beneath the water surface.
7 Q.  And did you -- did you sandbag it down the stream from
8 where the bodies were located or upstream?
9 A.  It would have been downstream where the ditch flowed into
10 the bayou.
11 Q.  Okay. And after that was sandbagged, did you bring in a
12 pump to pump the water out of that area?
13 A.  Yes, they -- they sandbagged that area and they brought in
14 a -- a pump to pump the water up over the sandbags into the
15 ditch that ran into the bayou.
16 Q.  Okay. Was there a screen placed over the pump that was
17 pulling the water out in order to catch or preserve anything
18 that may have been sucked into the pump?
19 A.  Yes. We -- we -- we had them affix something to that so
20 that -- that no evidence would be lost through – through that.
21 They did attach some type of screen to that -- to the opening
22 of the -- the pipe that pumped the water out.
23 Q.  Okay. And how -- how much water -- after the pumping
24 process was done, how much water remained in the bottom of the
25 ditch area where the three boys were found?


1 A.  Not -- not a lot of water. It was -- it was muddy but
2 other than it -- we got the majority of the water out.
3 Q.  Okay. Were you able to visualize the bottom of the ditch
4 once you had pumped it down to that point?
5 A.  Yes, sir.
6 Q.  Okay. Do you recall seeing any crawfish, any fish
7 flopping on the ground, any aquatic animals -- did you notice
8 any of those in the ditch after you pumped it down to this
9 level?
10 A.  No, sir.
11 Q.  Okay. No crawdads scurrying across the bottom or fish
12 flopping on the bottom of the ditch?
13 A.  No, sir.
14 Q.  Okay. If they had been there, were you in a position to
15 have observed that if they had in fact been there at the
16 bottom of the ditch?
17 A.  Yes, sir.
18 Q.  Okay. And was the reason you pumped this out and went
19 through this process with the screen, what type of evidence
20 were you looking for?
21 A.  Any type of weapons or we -- we did have a child that was
22 dismembered -- you know -- looking -- that and weapons.
23 Q.  Okay. And did you actually -- after the water had been
24 pumped out, were there efforts to rake the bottom to gather any
25 evidence that might be there?


1 A.  Yes, sir.
2 Q.  And during that time period you were present and didn't
3 observe any type of aquatic animals or -- either dead or alive
4 -- in the bottom of that ditch?
5 A.  No, sir.
6 THE COURT: Would the screen have caught any
7 aquatic animals -- fish, crawdads, or other biting
8 type water animal?
9 THE WITNESS: Yes, sir.
11 Q.  I'm gonna show you what is marked as State's Exhibit
12 Number Five and ask if you can identify that for us? (HANDING
14 A.  (EXAMINING.) This is the location where we found the
15 three bodies. This -- this is Detective Ridge here
16 (INDICATING). This is the sandbagged area here (INDICATING).
17 And the hose that they used to -- to pump the water out.
18 Q.  Okay. And this is at a point in the pumping process where
19 the ditch is not pumped dry but you're in the process of doing
20 that?
21 A.  That's correct.
22 MR. DAVIS: Your Honor, the state would move
23 for the introduction of State's Exhibits Three, Four,
24 Five and Six. Actually, Your Honor, I think I would
25 just move for the introduction of State's Exhibits


1 Four -- Three, Four and Five because I think actually
2 Six is a duplication.
3 MR. MALLETT: May we approach, Your Honor?
4 THE COURT: All right.
7 MR. MALLETT: It's my standard National
8 Enquirer request that after the use at these
9 hearings they be put in an envelope and sealed so
10 that the families not find them public -- published
11 by the news media in some way.
12 THE COURT: Well, I don't know what the news
13 media would have any access to 'em at all.
14 MR. MALLETT: To the Court's file?
15 THE COURT: No. Not -- not -- not to the
16 evidence.
17 MR. MALLETT: Okay.
18 MR. DAVIS: I have no objection to that, Your
19 Honor.
20 MR. MALLET: No objection. No objection.
21 THE COURT: Okay. I'm not gonna allow it unless
22 there is some order from a higher court.
24 THE COURT: Okay. They may be received.


2 MR. DAVIS: Your Honor, with that I would pass
3 the witness.
4 THE COURT: All right.
7 Q.  Is it Sergeant Allen?
8 A.  Lieutenant Allen.
9 Q.  You've been promoted?
10 A.  Yes, sir.
11 Q.  Congratulations. You've been in law enforcement how long
12 now?
13 A.  I started my law enforcement career actually in 1978. I
14 came to work for the Crittenden County Sheriff's Office in
15 1981. I worked there until 1988 when I went to work for the
16 West Memphis Police Department. And worked for the West
17 Memphis Police Department since 1988 in the capacity as a
18 criminal investigator.
19 Q.  And you were using all of your training and skills as a
20 criminal investigator on that day in May when you discovered
21 this evidence floating -- a person floating in the creek down
22 there in West Memphis?
23 A.  Yes, sir.
24 Q.  Were you the person in charge of collecting evidence, or
25 was there someone who was superior to you once the discovery of


1 the bodies was made?
2 A.  Inspector Gitchell was -- was in command of the crime
3 scene.
4 Q.  So Inspector Gitchell would be in charge of supervising
5 the officers and instructing the officers on the gathering of
6 evidence?
7 A.  Yes.
8 Q.  And supervising the officers and instructing the officers
9 on the preservation of evidence?
10 A.  Yes, sir.
11 Q.  And Inspector Gitchell was there when the bodies of the
12 victims were laid upon the bank of the ditch or creek there?
13 A.  Yes, sir.
14 Q.  And he was available to you at all times from then at
15 least until the time the coroner arrived?
16 A.  Yes, sir, I believe he stayed with us all day.
17 Q.  And the coroner arrived to pronounce the bodies -- the --
18 the death of the victims?
19 A.  They were contacted -- he was contacted for that and the
20 removal of the -- of the bodies from that scene.
21 Q.  And after -- you remember being jogged a little bit that
22 it would be consistent with his pronouncing them sometime
23 shortly after 4:00 -- around 4:10 when he got there?
24 A.  That's -- yes, sir.
25 Q.  And it was after that that the bodies were covered with


1 the plastic -- covered with black plastic?
2 A.  Sometime that afternoon. I don't -- do not re -- recall
3 what time but they were -- were covered with black plastic
4 prior to the coroner's arrival.
5 Q.  Okay. And do you have some notes or report that you could
6 refer to that would assist us in knowing at what time they were
7 covered with black plastic?
8 A.  I do not know if that -- if that particular time would be
9 in any report.
10 Q.  And you don't have an independent recollection --
11 A.  I don't have any reports with me, no, sir.
12 Q.  And you don't have an independent recollection of your own
13 what time they were covered?
14 A.  I know it was that afternoon and it was sometime after we
15 recovered the bodies because someone had to actually go and get
16 the black plastic. So it would have been several hours, I'm
17 sure.
18 Q.  Well, there was a period of three hours, more or less,
19 between when you first found the floating evidence and the
20 coroner pronounced them, correct -- one --
21 A.  From one to four, yes, sir.
22 Q.  Right. So that several hours could be no more than about
23 three -- give or take a few minutes.
24 A.  Somewhere -- I -- like I said, I do not have the exact --
25 the exact time. I'm going from --


1 Q.  You know it wasn't immediately upon discovering the
2 victims because someone -- not you -- but some other person
3 brought the black plastic to the place.
4 A.  Someone else, yes, sir.
5 Q.  And you don't have any independent recollection of what
6 time that was placed on the victims?
7 A.  No, sir.
8 MR. MALLETT: Thank you.
11 Q.  Mr. Mallett asked you -- a couple of times he said, "when
12 you discovered the floating evidence." If you would, Officer
13 Allen, when you -- before the bodies are discovered, was there
14 -- and you all are at this ditch area looking for these three
15 young men, what first -- what -- was there any evidence that
16 you saw floating at that point that alerted you that these --
17 the three might be in this ditch?
18 A.  There was a small tennis shoe. You could not see -- I was
19 standing at the side of the bank before I -- I actually stepped
20 into the water to -- to grab the tennis shoe and at that point
21 you could not see the bodies through the water. I mean, the
22 bodies were submerged.
23 Q.  Okay. And your -- you realize that bodies are there after
24 you get in to retrieve the tennis shoe, you then actually --
25 you don't see the bodies, they don't come to the top until you


1 actually make contact with one, correct?
2 A.  I actually stepped into the water and at that point felt
3 something with my leg and actually lifted my foot up and one of
4 the bodies floated to the -- the surface of the water.
5 Q.  Okay. So all three were submerged until you or Officer
6 Ridge, one, retrieved them from the water?
7 A.  Yes, sir.
8 MR. DAVIS: Nothing further, Your Honor.
9 THE COURT: Refresh my recollection. Where were
10 the bicycles recovered?
11 THE WITNESS: Back in the -- the actual bayou
12 itself which would have been not in this same ditch.
13 This ditch drained into the bayou where the pipe was
14 that -- that crossed from West McAuley -- the dead
15 end of West McAuley -- the bayou ditch -- there's a
16 pipe that runs across there. The bicycles were
17 actually in the bayou ditch.
18 THE COURT: And what distance from the spot
19 where the bodies were recovered?
20 THE WITNESS: Just guessing, I would say fifty,
21 seventy-five yards.
22 THE COURT: Okay. Anything else?
23 MR. DAVIS: Your Honor, if it would help the
24 Court, I do have a photograph of the area that Mr.
25 Allen might want to use in describing what he just


1 told -- answered in response to the Court's question.
2 THE COURT: Okay. I -- I -- that's the way I
3 recalled it, but I wanted to be sure I remembered
4 correctly. I know where that location is. If you're
5 doing it just for my benefit -- you might want to let
6 Mr. Mallett see.
7 MR. MALLETT: I'm interested in the picture.
9 MR. MALLETT: I'd appreciate the state being
10 allowed to do a short direct on that.
11 THE COURT: That'd be fine.
12 MR. DAVIS: Okay.
13 THE COURT: Since I opened it.
14 MR. MALLETT: If I may stand close so I can see
15 where he indicates places one the photograph?
16 THE COURT: Yes, sir, that'd be fine.
19 Q.  Mike, I'm gonna show you what's marked as State's Exhibit
20 Seven. Is that an aerial view of the -- of the wood lot --
21 what you've described as the bayou and also a portion of the
22 Blue Beacon Truck Stop? (HANDING TO WITNESS.)
23 A.  (EXAMINING.) The -- this is what I was referring to
24 (INDICATING). This here being the Blue Beacon Truck Wash here
25 (INDICATING). This is what I was referring to as West McAuley


1 where it dead-ends (INDICATING). There is a -- if you can see
2 in this photograph there's a -- like a water-type pipe that
3 goes across this bayou ditch. This is the main bayou ditch
4 here (INDICATING) that runs pretty much east and west. This --
5 in this wooded area --
6 Q.  Let me just -- as a point of reference for the record.
7 When you say "the main bayou ditch," you're talking about the
8 line of green foliage that transects about halfway down the
9 picture -- the total width of that photograph, correct?
10 A.  Yes, sir.
11 Q.  Okay.
12 A.  This bluish-greenish looking building here (INDICATING)
13 being the Blue Beacon. The interstate being out -- well,
14 basically here (INDICATING) running east and west. This -- the
15 actual ditch that drains into this bayou runs back from the
16 pipe here (INDICATING) back east and runs kind of in a north --
17 northeasternly (sic) direction.
18 Q.  So the victims would have been located somewhere -- found
19 somewhere in this area?
20 A.  Yes, sir, up in this area here (INDICATING.) The ditch --
21 somewhere right in here is where the ditch runs back up north
22 and it would have been in this -- in this particular area up
23 here. (INDICATING.)
24 Q.  If I may on -- on State's Exhibit Seven, if I may put a
25 "V" --


1 MR. MALLETT: Excuse me. May I suggest that
2 the officer who was personally there be allowed to
3 mark on the exhibit --
4 THE COURT: All right.
5 MR MALLETT: -- where it is to his best
6 recollection?
9 A.  Just -- I would want to be general because it's by no
10 means not to scale, I'd like to just draw kind of an area
11 probably referenced to -- to more like in that given area right
12 there. (INDICATING.)
13 MR. MALLETT: Indicating a circle --
14 THE WITNESS: Indicating --
15 MR. MALLETT: -- you've drawn on the picture.
17 A.  Indicating the -- the area, you know. Not being able to
18 see through the -- the leaves -- the trees, but in that general
19 area.
20 Q.  Okay. And is this the pipe that you're referring to?
21 A.  Yes, sir. The pipe that I'm referring to right here that
22 -- that crosses the -- that crosses the bayou.
23 MR. DAVIS: Okay. Could I draw an arrow to
24 that and write the word "pipe." I think my pen's
25 gonna work better on this photograph.


1 MR. MALLETT: There's no dispute where the
2 pipe is but when you get to bicycle, I'd like the
3 witness to do the "B".
4 THE COURT: Okay.
5 MR. DAVIS: That's fine.
7 Q.  Okay. Now, in -- in relationship to where the pipe is
8 noted in the photograph crossing what you referred to as the
9 bayou, where were the bicycles found in relationship to that?
10 A.  The bicycles were found in the bayou ditch in -- there was
11 another officer -- I think Officer Griffin and -- and another
12 officer and as far as my direct knowledge, I was not at this
13 location when they pulled the bicycles out. I'm not sure
14 whether this side or this side (INDICATING). I know that it
15 was within an area real close to this pipe (INDICATING).
16 Q.  Okay. Somewhere in the -- in the bayou under the -- in an
17 area close to one side or the other of the pipe?
18 A.  Yes, sir.
19 Q.  Okay.
20 MR. DAVIS: Your Honor, move for the
21 introduction of State's Exhibit Seven.
22 THE COURT: All right, it may be received.
23 MR. MALLETT: No objection.


1 MR. DAVIS: Do you need it back?
2 MR. MALLETT: I was -- did you have another
3 question?
4 MR. DAVIS: No, I'm through.
5 MR. MALLETT: If I may?
6 MR. DAVIS: Sure.
9 Q.  Somebody took you and showed you for purposes of assisting
10 your knowledge of the investigation where the bicycles had been
11 found, the --
12 A.  Yes, and also, I had -- I have seen photographs of them
13 recovering the bicycles. Yes. They -- from my understanding,
14 they threw something off there and actually kind of -- kind of
15 fished.
16 Q.  The bicycles were located in a place that they could have
17 been -- arrived in the water of the bayou without ever going
18 across the pipe?
19 A.  I could not answer that question on -- you know, I don't
20 know.
21 Q.  You don't know if they got in from the upper part of the
22 picture or the lower part of the picture based on where they
23 were found -- you're not sure?
24 A.  I could not say either way.
25 Q.  Okay. And then this pipe -- to orien -- orient ourselves


1 is virtually square dead in the middle of the photograph that
2 is the exhibit.
3 A.  Yes.
4 Q.  And leading to that pipe is a roadway with a pavement
5 apron --
6 A.  This is West McAuley here (INDICATING) -- the street here.
7 These are Mayfair Apartments. Yes, sir.
8 Q.  And West McAuley is fully paved to its full width until it
9 gets up to a traffic barrier where it dead-ends in a brushy
10 area before arriving at the bayou.
11 A.  Yes, sir.
12 Q.  And I guess you can remember from your own recollection
13 that there's a little footpath running down here at the end of
14 that street to where the pipe was?
15 A.  Yes, sir.
16 Q.  Okay. Thank you.
17 MR. MALLETT: Nothing further.
18 THE COURT: All right, you may stand down.
19 Call your next witness.
20 MR. DAVIS: Your Honor, our next witness is
21 Doctor Mincer and he'll be here at 1:00 o'clock. In
22 fact, I think it would -- if the Court might recess
23 until 1:10 or 1:15, when he gets here I may be able
24 to mark some of these exhibits that would expedite a
25 little bit.


1 THE COURT: Is there nothing else we can do
2 then? That's fine with me if there's not.
3 All right, court will be in recess until 1:15.
6 MR. DAVIS: Your Honor, Doctor Mincer needs to
7 be sworn in.
9 having been first duly sworn to speak the truth, the whole
10 truth, and nothing but the truth, then testified as follows:
13 Q.  Would you state your name, please, sir?
14 A.  I'm Harry H. Mincer.
15 Q.  Okay. And is that Doctor Harry H. Mincer?
16 A.  Yes, sir.
17 Q.  Okay. And, Doctor, what is your -- tell the Court
18 basically your education, background and what you do for a
19 living.
20 A.  I'm a dentist. I have a Ph.D. in pathology. And I teach
21 dental and medical students at the University of Tennessee in
22 Memphis. I'm a professor of oral pathology and an associate
23 professor of pathology. I'm also the forensic odontology
24 consultant to the medical examiner of Shelby County, Tennessee.
25 Q.  And in regard to your experience in the field of forensic


1 odontology, can you briefly explain to the Court your
2 background in that particular field?
3 A.  I've been a consultant to the medical examiner of Shelby
4 County since 1966, and a for great portion of that time, the
5 state medical examiner of Tennessee was -- was the same as the
6 medical examiner of Shelby County. And I was also, therefore,
7 consultant to the state medical examiner.
8 I'm also co-leader of the Dental Identification Mass
9 Disaster Team in Tennessee. As a matter of fact, I'm a member
10 of the Arkansas Mass Disaster Dental Identification Team.
11 I'm a diplomate of the American Board of Oral -- I mean,
12 of oral pathology but also of the American Board of Forensic
13 Odontology. In fact, I'm president of the board -- American
14 Board of Forensic Odontology this year.
15 Q.  And that's -- that's for the year of 19997
16 A.  Yes, sir.
17 Q.  Okay. And how long have you been a practicing -- or a
18 dentist and also, how long have you practiced in the field of
19 forensic odontology?
20 A.  I've been a dentist since 1955, and I've practiced
21 forensic odontology since 1966.
22 Q.  Let me show you what is marked as State's Exhibit
23 Seventeen M and ask if that is an accurate up-to-date CV that
24 you provided me yesterday afternoon. (HANDING TO WITNESS.)
25 A.  (EXAMINING.) Yes, sir, that appears to be.


1 Q.  And as you described it, that's ten pages in small print,
2 twenty if you made it larger; is that right?
3 A.  Yes.
4 MR. DAVIS: Do you need to see this, Ed?
5 MR. MALLETT: No, sir.
6 MR. DAVIS: Your Honor, I would introduce this
7 as State's Exhibit Seventeen M.
8 THE COURT: All right, it may be received.
12 Q.  Doctor Mincer, have you testified in the past and
13 qualified as an expert witness in the field of forensic
14 odontology?
15 A.  Yes, sir.
16 Q.  Okay. On a number of occasions?
17 A.  Yes, sir.
18 Q.  And were you asked -- or were you asked to examine --
19 MR. DAVIS: Excuse me. Let me back up one
20 second, Your Honor.
21 At this time we would proceed to question Doctor
22 Mincer as an expert in the field of forensic
23 odontology.
24 MR. MALLETT: No objection.
25 THE COURT: All right, you may proceed.


2 Q.  Were you asked to examine certain evidence regarding the
3 deaths of three eight-year-old boys in West Memphis back in May
4 of ninety-three?
5 A.  That's my understanding.
6 Q.  Okay. When were you first contacted regarding this case
7 in order to examine certain evidence?
8 A.  In August of 1998 I was called by telephone by Doctor
9 Kevin Dugan of Little Rock and he asked -- he said he was gonna
10 send me some material and asked me to look at it. On the
11 twenty-sixth of August I received three photographs -- five-by-
12 seven color photographs -- and a letter asking me to determine
13 if I thought any of the wounds on this young white boy were
14 bite marks.
15 Q.  Okay.
16 A.  Human bite marks.
17 Q.  Okay. Was there any -- were you asked to or influenced in
18 regard to your opinion at that point when these -- when this
19 information was supplied to you -- was there any information
20 supplied as to indicate how your opinion should come down?
21 A.  No. In fact, I didn't know who they were -- who the
22 photographs represented until later.
23 Q.  Okay. Now, you've indicated that there were three
24 photographs provided, and were those provided by Doctor Dugan?
25 A.  Yes, sir.


1 Q.  Okay. And are these the photographs that are marked
2 State's Exhibits Eight M, Nine M and Ten M?
3 A.  They are.
4 Q.  Okay.
5 MR. DAVIS: Your Honor, at this time we would
6 move for the introduction of those photographs as
7 representing what Doctor Mincer was provided
8 initially by Doctor Dugan.
9 MR. MALLETT: I only want to see them if I may
10 so I can be sure how they correspond with other
11 evidence.
12 MR. DAVIS: Okay.
13 THE COURT: All right.
16 THE COURT: Any objection?
17 MR. MALLETT: No, Your Honor.
18 THE COURT: All right, they may be received
19 without objection.
23 Q.  Now, Doctor Mincer, after you received those photographs,
24 what did you do in order to try to utilize those photographs
25 and make a determination if there was or was not bite marks


1 presented there?
2 A.  Well, I examined all the injuries and wounds, and at one
3 point I made one-to-one, life-size reproductions of them on a
4 computer and by using the ruler -- the scale in the picture --
5 I made one-to-one color prints and also black and white prints
6 of these photographs.
7 Q.  Okay. Were you -- was there any particular wound in these
8 photographs that you were particularly honed in on, or were you
9 just looking at the photographs generally to determine if you
10 saw anything in there that you believed was in fact a bite
11 mark?
12 A.  The most obvious wound that appeared at the first glance
13 to maybe be a bite mark was a heart shaped mark over the left
14 eyebrow on the forehead.
15 Q.  Okay. And did you examine that to determine -- if you
16 could determine if in your opinion based on a reasonable degree
17 of medical certainty that that was in fact a bite mark?
18 A.  After examining all three photographs and all of the
19 wounds, I came to the conclusion with reasonable certainty that
20 it was not a human bite mark.
21 Q.  Okay. Now, have you had an opportunity to review the
22 videotape testimony of Doctor David -- I believe he's out of
23 Georgia?
24 A.  Yes, I have.
25 Q.  Okay. And you've heard his explanation for why in his


1 opinion within a reasonable degree of medical certainty this
2 was a bite mark. Do you disagree with those findings?
3 A.  I do. I believe it is not a bite mark.
4 Q.  Okay. And do you believe -- based on your opinion and
5 your expertise, do you think there's any basis for using that
6 injury as a comparison with dental impressions to exclude or
7 include any individuals?
8 A.  Well, if it's not a bite mark, then there's no point in
9 using dental impressions to compare with it.
10 Q.  Okay. Now, you indicated that you made one-to-one color
11 and black and white blow-ups; is that correct?
12 A.  Yes, sir.
13 Q.  Okay. Do you have those with you?
14 A.  I do.
15 Q.  Okay. And I'm showing you what is marked as State's
16 Exhibits Twelve M, Thirteen M, and Eleven M. (HANDING TO
17 WITNESS.) Are -- are those the color blow-ups that are the
18 one-to-one representations that you made from the autopsy
19 photos provided by Doctor Dugan?
20 A.  (EXAMINING.) They are.
21 Q.  Okay.
22 MR. DAVIS: Your Honor, at this time -- after I
23 show Mr. Mallett these photographs -- (HANDING TO MR.


1 MR. DAVIS: Your Honor, at this time, I would
2 move for the introduction of State's Exhibits --
3 THE COURT: Eleven through thirteen?
4 MR. DAVIS: -- Eleven, Twelve and Thirteen.
5 THE COURT: Any objections?
6 MR. MALLETT: No, Your Honor.
7 THE COURT: All right, they may be received
8 without objection.
12 Q.  And, Doctor Mincer, what is marked as State's Exhibits
13 Fourteen M, Fifteen M and Sixteen M, are these black and white
14 one-to-one blow-ups of the same three autopsy photos?
15 A.  Yes, sir.
16 Q.  Okay. Now, why is it -- as a forensic odontologist -- why
17 do you make copies both in black and white and color?
18 A.  Well, if there are different shades of red and pink and
19 any color on colors often you can see 'em better -- the shades
20 of gray in black and white -- and that was the principal reason
21 -- look at it both ways to see -- so I could get a better idea
22 of where they were.
23 Q.  Okay.
24 MR. DAVIS: And, Your Honor, at this time we
25 would move for the introduction of fourteen, fifteen


1 and sixteen M into evidence.
2 THE COURT: Any objection?
3 MR. MALLETT: No, sir. I would like to see then
4 briefly if I could.
6 MR. MALLETT: (EXAMINING.) No objection.
7 THE COURT: All right, they may be received
8 without objection.
12 Q.  Now, Doctor, if you could, using those photographs -- and
13 it's primarily the Judge that needs to hear this -- could you
14 explain to the Court why in your opinion there is – the injury
15 to the forehead is not consistent with a bite mark?
16 A.  Well, at first glance it shows an arch which is what
17 you're actually looking for in a bite mark.
18 Q.  Excuse me one second. Doctor Mincer, would this
19 photograph help you in using that to point out these things to
20 the Court? I believe that's a blow-up -- (HANDING TO WITNESS.
21 A.  (EXAMINING.) All right. There they are although it's
22 much clearer on the -- on the smaller -- which is about the
23 same size mark. It's much clearer on this -- that specific
24 mark than it is here. But I may show it a little bit later.
25 This arch and then underneath it are two smaller arches


1 and in the middle of the cross thing -- and, of course, the
2 cross thing doesn't go in a bite mark at all so I discounted
3 that.
4 Also, the first thing you try to determine which are the
5 upper teeth and which are the lower teeth so you can ascertain
6 what position the biter -- if there is a biter -- is standing
7 in relationship to the victim. And I was unable to tell which
8 were the upper and which were the lower because the lower teeth
9 are narrower than the upper teeth, and these look wider than
10 those perhaps. So I couldn't tell if these were the upper and
11 those were the lower or vice versa. (INDICATING.)
12 Secondly, most of these teeth are very -- a very thin
13 line. In fact, all except this one big line -- big wound
14 there, and almost nobody's teeth are that sharp to make a very
15 thin line. Everybody's teeth when you touch 'em with your
16 tongue have a flat surface which is worn into 'em because if
17 they were that sharp, I guess you'd bite yourself all the time.
18 So -- but those -- that's really too fine a line for the usual
19 bite mark.
20 Secondly, you look for individual teeth. Now these two
21 lines here (INDICATING) could be considered individual teeth
22 and if these are the lower teeth, that would mean either
23 there's a space between the lower teeth or because of the
24 curvature of the body -- this being at the point of the eyebrow
25 -- this tooth didn't mark. But already you're making reasons


1 -- you're bringing in factors that you really don't see.
2 You're trying to explain things that -- that don't occur as a
3 part of it. So I can't explain that.
4 There are also two marks out here (INDICATING) which makes
5 this not a curve but a line. So that's another point that
6 takes away from it being a bite mark.
7 Q.  Doctor Mincer, you -- you viewed the videotape of Doctor
8 David's testimony, correct?
9 A.  Right.
10 Q.  Okay. And those two additional marks that you're saying
11 that would make that a straight line, in his testimony he
12 doesn't say that those have anything to do with the bite mark,
13 right?
14 A.  Yes, I think that's true.
15 Q.  Okay. And do they appear to be similar to the wounds that
16 you see closer to the nose?
17 A.  Yes, there seems to be a line of marks there.
18 Q.  Okay.
19 A.  Also, as I said, this is the only thing -- and it's really
20 too wide for a tooth. You can explain it by saying it's a
21 tooth that bit harder than the other teeth, but again, you're
22 factoring in something that we don't know.
23 Really to see a bite mark -- I mean, you can find curved
24 lines in wounds but to say it's a bite mark, you have to see
25 individual teeth, and I can't tell in this thin line at the to


1 where a tooth ends and where another tooth ends. Normally, you
2 have two front teeth which are about the same width, and the
3 two teeth next to 'em which are about the -- are also equal in
4 width to each other. I don't see anything there that makes me
5 think I have two teeth of the same size here (INDICATING) and
6 two teeth of the same size next to 'em. That's assuming, as
7 Doctor David said, that these are the four front -- two teeth.
8 I -- the biggest reason I thought it wasn't a bite mark,
9 however, were if you look at this picture --
10 Q.  Okay. Now, you're referring now to a blow-up which the
11 blow-up of what you've been previously referring to as State's
12 Exhibit Nine M; is that right?
13 A.  Yes, sir.
14 Q.  Okay. And using that if you could explain to the Court
15 your biggest concern regarding this not being a bite mark.
16 A.  My biggest concern of it not being a bite mark -- if you
17 look at this one with this curve and this curve and this curve
18 and this curve (INDICATING) -- there are curved lines all over
19 this poor victim and even deep gashes which also have a similar
20 curvature which show up better on the side view -- the left
21 side of the face.
22 Q.  Doctor, could you refer to that exhibit number on that?
23 A.  Exhibit Thirteen M is the blow-up, and that's the blow-up
24 of the original Ten M.
25 Q.  Okay.


1 A.  The curvature of these are very similar. I have seen
2 personally two cases and at the meeting every February of the
3 forensic organization -- people -- several cases have been
4 demonstrated in which if you have multiple wounds and in some
5 cases the wounds were insect bites -- in one of the cases I
6 worked on -- they were insect bites and another -- well, a
7 fellow showed a picture of crab bites from Florida from the
8 Gulf of Mexico in which there were multiple wounds of all sizes
9 and configurations and it's not -- the conclusion was you would
10 expect to see somewhere a curved pattern similar to a human
11 bite. But with reasonable certainty to expect that all of
12 these other wounds were made by some other instrument and that
13 one wound was made by a human bite, would be beyond reason.
14 And that's mainly the reason I didn't think that this wound
15 which somewhat resembles a human bite mark is a human bite
16 mark.
17 If -- and in my opinion -- if this was the only picture I
18 had -- not this one but this one (INDICATING) -- I could say
19 this might be a human bite mark. But that's as much as I
20 could say -- it might be. And if you said it was -- it might
21 be you could never either rule anyone in or out with something
22 you said might be a bite mark because if you're not certain or
23 even probable that it's a bite mark, that's as far as you can
24 go is to say it might be a bite mark. However, after looking
25 at all of the pictures, I have said that in my opinion it is


1 not a human bite mark.
2 Q.  And that's within a reasonable degree of medical
3 certainty?
4 A.  Yes, sir.
5 Q.  Now, Doctor, let me switch over to one other area just a
6 second. There were some questions asked about the protocol
7 that if you see something that could be a bite mark that you
8 naturally would swab it for -- to detect if -- or determine if
9 there is amylase on it. What -- what do you think about that
10 in the situation where these three victims were recovered from
11 submerged -- a -- submerged in a ditch?
12 A.  Well, I would think that if they'd been submerged in a
13 ditch, you couldn't recover any amylase. I understand that
14 Doctor David said he knew of cases where it was recovered. I
15 know of no such cases. Someone in the water though you would
16 think the amylase would wash off.
17 The second point is that nowadays on bite marks they
18 really don't swab for amylase any more. They swab -- swab for
19 DNA because you want as much material -- DNA will identify the
20 -- the biter -- the assailant -- whereas amylase will only tell
21 you whether -- give a clue -- doesn't tell you for certain --
22 that whether or not it's probably a bite mark because your
23 saliva has more amylase than anything else. If you've got a
24 high quantity of amylase, the assumption is -- it's presumed
25 that it is -- that somebody got saliva on 'em and a bite


1 mark would be the logical way to do it. But now they do DNA.
2 They don't do saliva because they don't want to dilute or take
3 away any of the saliva that can be used to detect the DNA and
4 thereby definitely identify the assailant or who deposited the
5 saliva.
6 Q.  If you were presented with these photographs -- or as you
7 see these photographs you had been asked to examine that body,
8 would you have recommended swabbing that area to determine if
9 there was amylase present?
10 A.  It -- I can't say -- you know, if I -- if I didn't think
11 it was a bite mark, I would see no point in swabbing it for
12 saliva for whatever use.
13 Q.  Well, as you've examined that, do you think it's a bite
14 mark?
15 A.  I do not.
16 Q.  Okay. Therefore, if you had been presented with this
17 wound pattern, do you think in your expertise and experience
18 and training that you would have thought it proper to swab
19 that?
20 A.  I don't -- I would not.
21 Q.  Now, is -- is the identification of the injuries as bite
22 marks -- is that an exact science?
23 A.  No. There -- depending on how good the bite mark is. We
24 just -- well, at the last meeting we did a workshop. We had
25 good bite marks and bad bite marks. Good bite marks meaning


1 those that looks like the teeth are represented. They have
2 both arches against each other and so forth. And bad ones --
3 I would classify this -- if it were a bite -- I mean, if that's
4 all I had was this one picture and I could say it's possibly a
5 bite mark -- that would be considered a bad bite mark. And
6 particularly in bad bite marks there was not agreement.
7 In fact, a fellow -- one of the diplomates -- one of the
8 board certified diplomates -- presented a case in which there
9 were six board certified forensic odontologists -- a case in
10 Louisiana -- in which three identified the assailant as having
11 made the bite, and another three said it's not a bite mark at
12 all. This was before a jury, and I don't even know the
13 outcome, but the point is that particularly on poorly formed
14 bite marks there's often disagreement among experts.
15 Q.  And even six experts in your field split down the middle
16 in terms of some saying they could positively use it for
17 identification and inclusion of a suspect while three others
18 didn't even think it amounted to a bite mark.
19 A.  Yes, sir.
20 Q.  Now, if a defense attorney -- and this is a hypothetical
21 for you -- but do defense attorneys or attorneys, period, come
22 to you seeking your input and advice regarding if things are or
23 are not bite marks?
24 A.  Yes, sir.
25 Q.  Okay. And if a defense attorney had come to you and


1 consulted you and presented you with these photographs and
2 said, Doctor Mincer, with all of your experience, training and
3 knowledge, do I need to be con -- is -- is this a bite mark?
4 Can you tell me or could you provide testimony that would
5 indicate within a reasonable degree of medical certainty this
6 is a bite mark? Could you have done that for him?
7 A.  Well, hopefully, I'm consistent and I would say, I do not
8 believe it to be a bite mark -- whoever presented me the
9 material.
10 MR. DAVIS: One second, Your Honor.
12 A.  And at the time -- usually I'm asked to prove it is a bite
13 mark. And at the time Doctor Dugan presented it to me I didn't
14 know -- that's the way it's supposed to be when you get a
15 second opinion. You're not supposed to have any information
16 about what he thinks and which is what occurred.
17 Q.  Okay. And so you didn't know if he had said, yes, this is
18 or, no, this isn't?
19 A.  No, all I knew was he said, do you see anything you think
20 is a bite mark.
21 Q.  Okay.
22 MR. DAVIS: One second, Your Honor.
23 Pass the witness, Your Honor.


1 Q.  Good afternoon, Doctor Mincer.
2 A.  How are you, sir?
3 Q.  Doing fine, thank you, and you?
4 A.  Not bad.
5 Q.  I was very interested in your anecdote about a case in
6 which six odontologists sat as jurors. I presume it's sort of
7 a lay jury sitting, and I presume sort of as an exercise at one
8 of your conventions; is that correct?
9 A.  No, this was -- this was a true -- a real case.
10 Q.  And in a real case that you've related to to give an
11 illustration, there were six board certified odontologists and
12 three found a bite mark and three found no bite mark. It
13 really happened?
14 A.  Three found a bite mark to the extent they identified the
15 biter and three said it was not a bite mark.
16 Q.  Do you know -- do you know whether it was true that it was
17 a biter --
18 A.  I do.
19 Q.  -- or it was true that it was not a bite mark?
20 A.  No, I know three were probably wrong.
21 Q.  So you disagree with Doctor David in this case?
22 A.  Right.
23 Q.  All right. The experts are entitled to disagree in
24 the field of forensic odontology, right?
25 A.  Yes, sir.


1 Q.  In fact, forensic carries with it the idea of testifying
2 in a court of law, doesn't it?
3 A.  Yes.
4 Q.  So that if there's a jury, the jury can consider what the
5 experts say along with all the other evidence in the case in
6 arriving at a decision?
7 A.  Yes, sir.
8 Q.  All right. And what a forensic odontologist does -- or
9 any other forensic person -- is testify to his opinions which
10 reflect the best application of his skill, his training, and
11 his experience, right?
12 A.  Right.
13 Q.  And they don't all the time agree, right?
14 A.  Right.
15 Q.  And a person on trial for his life -- you would hope in
16 the United States of America -- would have access to resources
17 so that if there was a forensic expert available, then he would
18 have that forensic expert look at the evidence and see if he
19 might have some testimony that would be helpful to the defense.
20 You believe in that, don't you?
21 A.  Yes, sir.
22 Q.  All right. And you believe that -- in the cases at least
23 that you've worked on -- you've been approached from time to
24 time by good lawyers who would ask you if you could give
25 testimony that would be beneficial to their side of the


1 lawsuit, right?
2 A.  Yes.
3 Q.  And sometimes you can give testimony that helps the side
4 that approaches you and sometimes you cannot.
5 A.  Yes.
6 Q.  And you just tell the truth the best you can in every
7 case.
8 A.  Yes, sir.
9 Q.  Now, Doctor Tom David for example, he's a member of the
10 association to which you've been elected president for this
11 year, right?
12 A.  Right.
13 Q.  He has the same board certification in forensic odontology
14 that you do?
15 A.  Right.
16 Q.  He's practiced medicine for many years -- excuse me,
17 dental medicine for many years, right?
18 A.  Right -- as far as I know.
19 Q.  Attends the same conventions that you attend?
20 A.  Yes.
21 Q.  And so far as you know, is a man of good personal
22 integrity and character?
23 A.  Yes.
24 Q.  This is just a case where two people disagree, right?
25 A.  Right.


1 Q. Now, for purposes of this hearing, you were contacted by a
2 dentist from Little Rock who mailed you three pictures.
3 A.  Yes, sir.
4 Q.  When was that?
5 A.  In August of ninety-eight.
6 Q.  And when did you tell him that you were certain upon your
7 reputation that these were not bite marks?
8 A.  According to -- on September first I sent him a fax.
9 Q.  Did your fax tell him that you could not say they were
10 bite marks?
11 A.  The fax says that, "I examined and concluded that none of
12 the wounds can be determined to be bite marks and with a
13 reasonable certainty they are not bite marks."
14 Q.  Do you have that fax with you?
15 A.  Yes.
16 Q.  Would you have any objections to my looking at it?
18 Q.  (EXAMINING.) Would you read what --
19 MR. MALLETT: Can I mark this as an exhibit and
20 move its admission and ask that we be allowed to
21 substitute a -- to the copy and return the original
22 to Doctor Mincer?
23 THE COURT: Any objection?
24 MR. DAVIS: I don't know. I don't know what it
25 is.


2 MR. DAVIS: (EXAMINING.) I have no problem.
3 THE COURT: All right.
7 Q.  Doctor Mincer, we're going to admit this as an exhibit and
8 then we're gonna substitute a copy and return your original
9 with your permission.
10 A.  Fine.
11 MR. MALLETT: Is it admitted, Your Honor?
12 THE COURT: Yes.
14 Q.  Page one of Defense Sixty-six appears to be a transmission
15 verification report which makes me think that accompanying
16 papers were sent by facsimile transmission.
17 A.  Right.
18 Q.  And the second is a page in handwriting with the word,
19 "Harry" on it, correct?
20 A.  Right.
21 Q.  And this says, "Kevin, throw out the other one and keep
22 this one. This is what I sent the D. A. in Jonesboro."
23 A.  Right.
24 Q.  That's your handwriting?
25 A.  Right.


1 Q.  And then the one that is attached is a medical legal
2 opinion dated August thirty-first, 1998, correct?
3 A.  Right.
4 Q.  Then is there a different medical legal opinion that you
5 did not send the D. A. in Jonesboro?
6 A.  Apparently, but I don't know what it was, if it was a
7 typographical error or what it was.
8 Q.  Okay. You don't remember whether it was a typo or some --
9 A.  It's the same one. It's the same thing, isn't it?
10 Q.  Well, I see on the back of page two there's some printing
11 A.  Right.
12 Q.  So is this probably the one that you sent -- that you
13 first typed?
14 A.  Probably.
15 Q.  All right. Now, the opinion you expressed then back on
16 August thirty-first, 1998, after you received three photographs
17 on August the twenty-sixth, 1998, was based on your review of
18 those three five-by-seven color photographs.
19 A.  Right.
20 Q.  We have in evidence these other exhibits -- certain other
21 exhibits -- which are blow-ups --
22 A.  Right.
23 Q.  -- in color and in black and white.
24 A.  Right.
25 Q.  So that twelve M, thir -- eleven M and thirteen M --


1 A.  This didn't have nothing to do with -- these are just
2 pictures of other bite marks.
3 Q.  Okay. But the -- the color exhibits that were introduced
4 today, they were made in March eleven, 1999 -- that's last
5 week.
6 A.  Right.
7 Q.  And the black and white exhibits were also made March
8 eleven, 1999, last week?
9 A.  Yes.
10 Q.  So you expressed your opinion upon your reputation on
11 August twenty-six -- five days after receiving three
12 photographs in the mail --
13 A.  Right.
14 Q.  -- and then the trial exhibits which have been introduced
15 were created last week.
16 A.  Right. These -- these trial exhibits. The originals are
17 the originals.
18 Q.  Would you expect that in a case involving dramatic
19 markings -- I'll withdraw that and start to do it this way:
20 In your experience has it happened with some frequency that a
21 pathologist upon seeing damage to a person has asked you for
22 your opinions whether you observed the presence or absence of
23 possible bite marks?
24 A.  Yes.
25 Q.  That's what you've been doing since 1966?


1 A.  You mean, he's doing the autopsy and he calls me over to
2 look at something?
3 Q.  Right, asking you as a consultant for the pathologist.
4 A.  Yes.
5 Q.  And when you look as a consultant -- when you look at
6 materials acting -- acting as an odontology consultant, you use
7 what you have learned by going to conventions of the American
8 Board of Forensic Science, right?
9 A.  Right.
10 Q.  You use what you have learned by studying materials
11 published by the American Board of Forensic Odontology,
12 correct?
13 A.  Right.
14 Q.  You utilize your extensive personal experience in
15 examining human bite marks or potential human bite marks?
16 A.  Right.
17 Q.  And you use all of that experience, all of that skill to
18 form opinions --
19 A.  Right.
20 Q.  -- knowing that there may be other people who are honest
21 and ethical and experienced and hard-working who would reach
22 opposite conclusions, right?
23 A.  Right and what we hopefully do is demonstrate to the jury
24 -- or the Judge in this case -- why our opinion is better than
25 the -- than the other attorney -- or the other expert's


1 opinion.
2 Q.  And if there's going to be a trial before a jury and not
3 like today but like in some other occasions, there's gonna be a
4 trial before a jury, you would expect that a lawyer that was
5 doing his job would have a forensic odontologist take a look at
6 the evidence to see if there was a possibility of human bite
7 marks being present.
8 A.  Well, if I -- I mean, you're asking me -- if -- if I
9 didn't think it was a bite mark, I don't think they need
10 another odontologist. I don't think they need any odontologist
11 if it's not a bite mark. If that's -- if that makes any sense.
12 I -- I mean, you -- you have an odontologist who said he thinks
13 it's a bite mark, so --
14 Q.  You know, they say --
15 A.  -- you have it.
16 Q.  -- in baseball -- the umpire says in baseball, some of 'em
17 are balls and some of 'em are strikes, but they're nothing
18 until I call them. You've heard that before, haven't you?
19 A.  Right. And --
20 Q.  So we don't have any evidence relating to bite marks in
21 competent evidence until we have a forensic odontologist look
22 at the evidence.
23 A.  Well, I don't get called until somebody else looks at it
24 first and makes the determination. So -- I mean, that's how it
25 works and --


1 Q.  And you're called because somebody interested in their
2 side of the lawsuit thinks your opinion might be helpful?
3 A.  No, I'm called by the medical examiner who's looking at
4 it.
5 Q.  Did you indicate to Mr. Davis that you are sometimes
6 called by defense lawyers?
7 A.  I am sometimes, yes.
8 Q.  Because they're interested in knowing whether your opinion
9 would benefit their side of the lawsuit?
10 A.  Oh, okay, that's true.
11 MR. MALLETT: Thank you very much.
14 Q.  Doctor Mincer, you said that you were originally contacted
15 by Kevin Dugan, and he is a forensic odontologist although not
16 board certified; is that right?
17 A.  Yes.
18 Q.  Okay.
19 MR. DAVIS: No further questions.
20 THE COURT: All right, you're free to go, sir.
21 Thank you very much.
22 Call your next witness.
23 MR. DAVIS: Again, our next witness is Doctor
24 Dugan who is coming from North Little Rock and he'll
25 be here at 3:00 o'clock. He might be here early but


1 he's scheduled to be here at 3:00.
5 having been first duly sworn to speak the truth, the whole
6 truth, and nothing but the truth, then testified as follows:
9 Q.  Would you state your name, please, sir?
10 A.  Kevin Michael Dugan.
11 Q.  Okay. And is it Doctor Kevin Dugan?
12 A.  Yes, sir.
13 Q.  Okay. And, Doctor Dugan, what kind of doctor are you in
14 terms of your field of speciality?
15 A.  General dentistry.
16 Q.  Okay. And how long have you been practicing dentistry?
17 A.  About twenty years.
18 Q.  Okay. And where do you practice?
19 A.  In North Little Rock, Arkansas.
20 Q.  Okay. And can you tell the Court where you went to dental
21 school, when you graduated, that sort of thing?
22 A.  I went to dental school at the University of Tennessee in
23 Memphis, and I graduated in June of 1979.
24 Q.  And have you also in addition to your work as -- in
25 general dentistry, have you also gained some experience and


1 been involved in forensic dentistry as a forensic
2 odontologist?
3 A.  Yes, sir, I have.
4 Q.  Okay. And can you briefly explain to the Court the
5 training and background and experience you've had in that
6 particular field?
7 A.  I've been involved in forensic dentistry since
8 approximately 1990 which is when I first started working full
9 time with the medical examiner's office in Little Rock. I did
10 my first identification in 1983 but I -- I didn't really start
11 working full time with it until 1990. In that capacity working
12 with the M. E.'s office I identified individuals who have been
13 burned beyond recognition, skeletonized remains, et cetera, and
14 whenever there are any suspicious marks on people's bodies that
15 may be a bite mark, they call me to the M. E.'s office for me
16 to look at those also.
17 I've gone to several continuing education courses, which
18 is on my CV, but I've gone to a course that Doctor Mincer
19 taught, a course in Florida by a fellow named Doctor Levine.
20 There's a week long course that the Armed Forces Institute of
21 Pathology puts on. There's a week long course that's in San
22 Antonio, Texas, that I've been to. There's a convention every
23 year by the American Society of Forensic Odontology that I've
24 attended for the last four years. I think that's about all the
25 courses I can remember right now.


1 Q.  Okay. And so how long have you been working in
2 association with the Arkansas State Medical Examiner's Office
3 as a forensic odontologist?
4 A.  For nine years.
5 Q.  Okay. And during the course of those nine years, do you
6 have an idea as to approximately how many cases that you've
7 been involved on in terms of assisting them with your
8 professional opinion regarding certain issues?
9 A.  I do approximately thirty identifications every year,
10 which is probably about two hundred and fifty to two hundred
11 and eighty identifications that I've done. And I've probably
12 worked with about a dozen or so bite mark cases.
13 Q.  Okay. And have you testified and qualified as an expert
14 in the field of forensic odontology and testified in courts
15 before?
16 A.  Yes, sir, I have.
17 Q.  Okay. On how many occasions?
18 A.  Approximately four occasions.
19 Q.  Okay. Have some of those occasions been in regard to bite
20 mark evidence?
21 A.  Yes, sir, they have.
22 Q.  Okay. Now --
23 MR. DAVIS: Your Honor, may I approach the
24 witness?
25 THE COURT: Yes.


2 Q.  Doctor Dugan, I'm gonna show you what is marked as State's
3 Exhibit Eighteen D. Is that a CV containing a listing of your
4 education, background, training, and experience? (HANDING TO
6 A.  (EXAMINING.) Yes, sir, it is.
7 Q.  Is that up-to-date?
8 A.  Yes, sir.
9 MR. DAVIS: Your Honor, at this point, we would
10 move for the introduction of State's Exhibit Number
11 Eighteen D.
12 MR. MALLETT: No objection.
13 THE COURT: All right, it may be received
14 without objection.
18 Q.  Now, Doctor Dugan, back in May of 1993, did you have
19 occasion to be called in to assist in the examination of the
20 bodies of three young eight-year-olds that were found dead here
21 in Crittenden County?
22 A.  Yes, sir, I did.
23 Q.  Okay. And how did that take place? Can you explain how
24 that occurred or what -- how you were contacted and brought in
25 the case?


1 A.  Well, I was -- I was at my office and whenever there's a
2 case that the M. E.'s office needs me on, they will call me at
3 my office and instruct me as to what time they need me over
4 there at their -- at the laboratory to work with them.
5 Q.  And you know -- is that what happened in this particular
6 instance?
7 A.  Yes, sir, it is.
8 Q.  Okay. When you went over there, can you describe for the
9 Court the circumstances that existed, where you viewed the
10 bodies, what the situation was?
11 A.  In the -- in the downstairs area in the morgue when I
12 entered the building, there were three young children who had
13 been murdered and they were -- the three bodies were on the
14 tables there for viewing.
15 Q.  Okay. Now, who -- do you recall if Doctor Peretti was
16 there when you arrived?
17 A.  Yes, sir, Doctor Peretti was there.
18 Q.  Okay. And tell us what was said to you in terms of your
19 direction or what you were supposed to do or what they -- what
20 he wanted from you in that particular instance.
21 A.  He wanted me to view the three bodies individually and see
22 if I saw anything that resembled a bite mark on any of the
23 three bodies.
24 Q.  Okay. Was there any particular injuries that were pointed
25 out to you or indicated we really want you to look at this one


1 or we really want you to look at that one, or was it just
2 generally look over these bodies and see if you see anything
3 that's suspicious for a bite mark?
4 A.  Well, the face of the one individual had many marks on it
5 that were circular that they particularly wanted me to view.
6 Q.  Okay. And did you do that and can you explain to us how
7 you viewed the bodies and what steps you took to determine or
8 ascertain if you thought there was anything there in the nature
9 of a bite mark?
10 A.  Well, when I was looking at -- at that body in particular
11 as I stated, there were many circular marks that were present
12 all over the neck, chin, cheek, above the eye, et cetera. And
13 they all seemed to me to have been made by a -- a circular
14 object that -- a hollow pipe or something that would have been
15 making such a -- such a mark on the face.
16 Q.  Okay. And did you examine -- were you asked to look at
17 the other two boys?
18 A.  Yes, I was, and I looked at them also and I didn't see
19 anything that -- that appeared to have any characteristics that
20 would be bite marks.
21 Q.  Okay. And at that -- after you conducted your
22 examinations and viewed the bodies personally, were you asked,
23 you know, do you see anything here that looks like a bite mark
24 to you?
25 A.  Yes, they -- they asked me that and I -- and I told them


1 that, no, I didn't see anything that looked like a bite mark.
2 Q.  Okay. Now, as a forensic odontologist -- that is what you
3 are, correct?
4 A.  Yes, sir.
5 Q.  Okay. Is it -- is it better in terms of being able to
6 make calls as to whether something is a bite mark or not, is it
7 better to have the body to examine than just a photograph?
8 A.  I feel that it is, yes, sir.
9 Q.  Okay. Why is that?
10 A.  Well, you're able to see the three dimensional aspect a
11 whole lot better because photographs, of course, are two
12 dimensional. And you're able to move the body around and --
13 and -- you know, see from all angles how this mark could have
14 been made and what could have made it.
15 Q.  Okay. And you had that opportunity in examining the
16 bodies of these three children, correct?
17 A.  Yes, sir, I did.
18 Q.  Okay. And your opinion to the doctors there upon that
19 initial examination was that you didn't think there was
20 anything there that would constitute a bite mark?
21 A.  That's correct.
22 Q.  And was that opinion within a reasonable degree of medical
23 certainty as -- as applied in your field?
24 A.  Yes, sir, it was.
25 Q.  Okay. Now, subsequent to that, after you found out that


1 there were other odontologists who had a different opinion and
2 that this issue was gonna come up at this hearing, did you go
3 back and examine the photographs or autopsy photographs to look
4 again at these injuries?
5 A.  Yes, sir, I did.
6 Q.  Okay. And did you make certain one-to-one blow-ups of
7 those photographs for purposes of demonstrating why in your
8 opinion these aren't bite marks?
9 A.  Yes, sir. I had the medical examiner's office make those
10 for me.
11 Q.  Okay. I'm gonna show you what have been marked as State's
12 Exhibits Twenty D -- Nineteen D, Twenty D, Twenty-one D and
13 Twenty-two D and ask if you can identify those items for us?
15 A.  (EXAMINING.) Yes, sir. These are the pictures that I
16 worked with in order to re-examine and -- and assess and see
17 what my opinion would be today of those marks.
18 Q.  Okay. And let me ask you this: Did you have an occasion
19 to view a videotape of the testimony that was presented by
20 Doctor David at a previous hearing in this Rule 37 matter?
21 A.  Yes, sir, I did see that.
22 Q.  Okay. And did you hear his explanation and his opinion as
23 to why he thought that these -- that this was a bite mark on
24 the forehead of the child Steven Branch?
25 A.  Yes, sir, I saw that.


1 Q.  Okay. Do you agree or disagree with his opinion?
2 A.  I disagree with his opinion.
3 Q.  Okay. Now, the exhibits that are in front of you, are
4 those blow-ups of photographs, are they one-to-one in terms of
5 ratio representation?
6 A.  All -- all of these photographs are one-to-one
7 representations.
8 Q.  Okay.
9 A.  So they should be life-size.
10 Q.  Okay. And have you added layovers on each one of the
11 photographs -- or overlays to demonstrate certain matters that
12 you thought were important?
13 A.  Yes, sir, I have on each one of them.
14 Q.  Okay.
15 MR. DAVIS: Your Honor, at this time we would
16 move for the introduction of State's Exhibits
17 Nineteen through Twenty-two, I believe that is, and
18 ask that he be allowed to use those in his
19 explanations for the Court.
20 MR. MALLETT: With the understanding that these
21 are demonstrative exhibits prepared by the witness to
22 assist in his testifying at trial and not records of
23 the examination performed at the time of the original
24 autopsies.
25 THE COURT: Well, I think that's what he
1 stated.
2 All right, they may be received for those
3 purposes.
8 Q.  Okay. Let me clarify one thing, these photographs are --
9 are blow-ups or one-to-one representations of actual autopsy
10 photographs; is that correct?
11 A.  Yes, sir, these are one-to-one representations of the
12 autopsy photographs. They aren't blow-ups. They are one-to-
13 one representations.
14 Q.  Okay. Okay. Using those photographs, would you explain
15 to the Court why it is that your -- in your examination of
16 these -- the face -- the injuries to Stevie Branch -- why you
17 concluded that your opinion beyond a -- to a reasonable degree
18 of medical certainty indicates these are not bite marks. Could
19 you explain to the Court why that is your opinion?
20 A.  Well, sir, the -- the main thing that struck me when I
21 viewed the remains was the fact that there were numerous
22 circular marks present on the face. And what I've done with --
23 with these photographs is to take and make this clear -- take
24 this clear plastic to place over the photograph and then to
25 look at these back and forth and make a -- a mark where I saw


1 what appeared to be a circular mark that would have been made
2 by whatever object made these marks.
3 Q.  Okay. You're now referring to what exhibit number?
4 A.  This is Exhibit Nineteen D.
5 Q.  Okay. And that's a frontal shot of the face of the
6 victim, Steve Branch?
7 A.  Yes, sir, it is.
8 Q.  Okay.
9 A.  And so as I said, I just -- I just made the circular marks
10 to show that there's numerous similar marks present on the face
11 that seem to have been made by the same object that made the
12 mark over the -- over the eye that we seem to be interested in.
13 I then did the same thing with -- this is Twenty D -- with
14 the side photo and once again did the same exercise and -- and
15 looked for circular patterns that would be present and then
16 outlined them here to show that there is numerous similar
17 patterns that are present on the face that would seem to have
18 been made by the same instrument.
19 Then I also did the same with -- which is number Twenty-
20 one D -- I took and did the same exercise, and there are
21 numerous marks on the neck and on the chin that also can be
22 shown to have that same circular pattern present with them.
23 Then on Twenty-two D, which is the one-to-one of the mark
24 above the eyebrow, what -- what is the most interesting to me
25 about that particular mark is the fact that if you look


1 closely, you can see that there is a line that starts here and
2 continues all the way around and continues on over to here.
3 (INDICATING.) And the reason that I feel that this cannot be a
4 bite mark is because human teeth don't make a continuous line.
5 They'll make an interrupted circular pattern rather than just
6 one straight line that is practically pencil thin that has been
7 made on the forehead in this instance.
8 Q.  And so what you would expect to see with human teeth marks
9 would be an interrupted line where there's interruption for the
10 spacing between the teeth, correct?
11 A.  Yes, sir, there would be interruptions in between the
12 teeth.
13 Q.  And what you described on that exhibit as -- that you've
14 shown us, is that it has an uninterrupted longer, thinner line
15 than what you would expect of human teeth?
16 A.  Yes, sir. And, also, the fact that the -- that the line
17 begins to make a circle and actually starts to come back around
18 on itself, and human teeth don't do that. They have a circular
19 shape, but it's gonna be maybe, you know, a fourth of a circle
20 whereas this starts to be a half of a circle, and human teeth
21 don't make half circles.
22 Q.  Now, is there -- are there other criteria that when you
23 look at these photographs and with these exhibits that you
24 think distinguishes these injuries from those of a bite mark?
25 A.  Well, mainly the fact that I stated that when you have I


1 teeth present that are gonna be making marks, the teeth
2 themselves are gonna be making -- the anterior teeth -- the
3 upper and lower incisors are gonna make rectangular shapes that
4 are -- that are somewhat individualized where you can see a
5 mark by the individual teeth. And when you get over to where
6 the eyeteeth are, you're gonna have a slightly triangular shape
7 to those. And I don't see any of those distinctive
8 representations of triangular shapes and rectangular shapes
9 that human teeth would be making.
10 Q.  Now, after -- you initially told us that you examined the
11 bodies and rendered an opinion to the medical examiner at that
12 point, correct?
13 A.  Yes, sir.
14 Q.  Okay. And then after this -- the -- the dispute over
15 whether or not this is a bite mark occurs, you examine these
16 photographs and formulate again -- or reinforce your original
17 opinion that in fact these are not bite marks.
18 A.  Yes, sir, my opinion is even stronger now than it was when
19 I first viewed the body.
20 Q.  Okay. And your opinion is based on what degree of
21 certainty?
22 A.  Well, the highest degree of medical certainty that I have
23 is that this is not a bite mark.
24 Q.  Okay. Did you -- have you in fact staked your reputation
25 on this in terms of how certain you are that this is not a bite


1 mark?
2 A.  Yes, sir, I have.
3 Q.  Okay. Now, after you reached those conclusions, did you
4 in fact send some of the photographs off to Doctor Harry Mincer
5 to get a second opinion from him?
6 A.  Yes, sir, I did.
7 Q.  Okay. Now, when you sent those to Doctor Mincer, did you
8 in any way indicate or represent to him what your decision had
9 been regarding these photographs?
10 A.  No, sir, I -- I expressed no opinion whatsoever when I
11 sent those photographs to him.
12 Q.  Okay. And did you receive back from him an opinion that
13 was consistent with the one you had reached?
14 A.  Yes, sir, I did.
15 MR. DAVIS: One second, Your Honor.
16 Pass the witness.
19 Q.  Doctor Dugan, good afternoon.
20 A.  Good afternoon.
21 Q.  Are you a friend of Doctor Peretti's?
22 A.  Yes, sir, I am.
23 Q.  You're a professional colleague and also a social friend?
24 A.  Yes, sir.
25 Q.  I noticed on your resume some reference to your position


1 with the --
2 THE COURT: Here it is. (HANDING TO MR.
5 Q.  -- crime laboratory. (EXAMINING.) You recite you are
6 Chief Forensic Odontologist, Arkansas State Crime Lab, 1990 to
7 present, correct?
8 A.  Yes, sir.
9 Q.  What is the salary of the Chief Forensic Odontologist?
10 A.  They pay me as per each case that comes in. There is a
11 certain set amount for identification and then there's a
12 certain set amount for a bite mark case.
13 Q.  Ah, so you work as Chief Forensic Odontologist on a
14 piecework basis?
15 A.  Yes, sir.
16 Q.  And in the ten years you've had twelve bite mark cases
17 total?
18 A.  Approximately.
19 Q.  They keep a record then of the fact that you have been
20 called over for compensation purposes?
21 A.  Yes, sir, they do.
22 Q.  And when you come, of course, you want to earn the
23 compensation, right?
24 A.  Yes, sir.
25 Q.  And one of the things that you do in your work outside of


1 your work as Chief Forensic Odontologist is private dentistry.
2 A.  Yes, sir.
3 Q.  When you do private dentistry, you'd keep a -- a file on
4 each one of your patients.
5 A.  Yes, sir.
6 Q.  Recording the information collected from your patient on
7 each visit to the dentist.
8 A.  Yes, sir.
9 Q.  And when you work as Chief Forensic Odontologist for the
10 Arkansas State Crime Lab, you keep a file on each time you are
11 called over to provide forensic odontological service?
12 A.  No, sir. All those files are kept at the M. E. 's office.
13 Q.  Okay.
14 A.  Any paperwork I generate is left with the medical
15 examiner's office.
16 Q.  Of course, you understand that the work you're doing is
17 important because it relates to court cases?
18 A.  Yes, sir.
19 Q.  And have you brought with us (sic) the notes you made on
20 or about May the sixth, 1993, when you performed the
21 odontological examination as part of your responsibility as
22 chief examiner for odontology?
23 A.  I have no paperwork from that, no, sir.
24 Q.  So then if you got ill, got promoted to a Surgeon General
25 of the United States, or -- perish the thought -- died in a car


1 wreck, you left no report, no memorandum, no summary of the
2 work you performed and for which you claimed an entitlement to
3 be paid?
4 A.  I don't believe I was ever paid for this case and no,
5 there's no paperwork of -- that I'm aware of that I generated
6 for this case.
7 Q.  All right. Then if you were not paid for this case, I
8 take it that your visit to the crime lab on this case was in
9 some char -- in some way different than all the other cases
10 that you'd been called over to work on --
11 A.  No, sir.
12 Q.  -- because you didn't apply for payment.
13 A.  No, sir.
14 Q.  All right.
15 A.  You seem to feel that payment is the primary goal here
16 and that's incorrect. There are probably a half a dozen bite
17 mark cases or identification cases or consultations that I've
18 given in which I've never been paid.
19 Q.  How long have you had this official title, Chief Forensic
20 Odontologist -- like on your business card, on your --
21 A.  No, sir.
22 Q.  -- door -- how long have you had it on your resume?
23 A.  Oh, I don' t -- I couldn't say.
24 Q.  I'll bet you didn't have it on your resume in 19907
25 A.  Oh, no, sir.


1 Q.  And not in 1991?
2 A.  Probably not.
3 Q.  1992?
4 A.  I dare say I didn't have a resume typed up in 1990 or
5 ninety-one or ninety-two.
6 Q.  Okay. Was there a resolution passed by the legislature
7 or some legislative committee creating the position Chief
8 Forensic Odontologist for Ark -- for Arkansas State Crime Lab?
9 A.  No, sir.
10 Q.  Tell me who it was that anointed you with the title that
11 you've had since 1990 and when you got the title.
12 A. I don't know if I was ever anointed with the title. I
13 just believe that it was given to me one day just in
14 conversation.
15 Q.  All right. Who were you talking to?
16 A.  Probably just some of the folks at the medical examiner's
17 office. I don't know if you would really designate it as a --
18 an official title that would be recognized as the fact that
19 they would have a Chief Forensic Odontologist.
20 Q.  Well, it just strikes me that it might be a momentous day
21 in the life of a professional to be awarded the title Chief
22 Forensic Odontologist, Arkansas State Crime Lab, that you've
23 had since 1990, and I was curious to know when you acquire the
24 title.
25 A.  I can't say it would have been a momentous day because --


1 Q.  Would it have been as late as 1995?
2 A.  I don't think I have an answer to the question you're
3 asking.
4 Q.  Do you recall who was in that group of people that decided
5 you could claim that title --
6 A.  No, sir.
7 Q.  -- and publish to all the world that you carry that title?
8 A.  No, sir, I don't.
9 Q.  You -- you say that it is preferable to view an actual
10 body than to view photos of a body.
11 A.  Yes, sir.
12 Q.  But in the situation about which the Judge is hearing
13 testimony today, you sought a second opinion.
14 A.  Yes, sir.
15 Q.  And you sought that second opinion through Mr. -- Doctor
16 Harry Mincer.
17 A.  Yes, sir.
18 Q.  A man that you knew and respected?
19 A.  Yes, sir.
20 Q.  And you believe that by looking at photographs he could
21 form -- or might be able to form an opinion?
22 A.  I feel that he could form an opinion looking at
23 photographs, yes, sir.
24 Q.  You sent him three photographs?
25 A.  Yes, sir.


1 Q.  And he told you within a week that he had an opinion?
2 A.  I don't know the passage of time, but he did contact me
3 and stated that he had an opinion.
4 Q.  And you sought him for a second opinion because in the
5 field of odontology it is common for experts to disagree?
6 A.  Yes, sir.
7 Q.  That's one of the things that you've learned in the
8 conventions you've attended and the seminars you've attended
9 and the cases you've read about is experts often disagree.
10 A.  That's possible, yes, sir.
11 Q.  And forensic odontology has to do with testifying in court
12 about the results of odontological evaluations?
13 A.  Yes, sir.
14 Q.  All right. So two experts are better than one, right?
15 A.  I don't know if they are or not, but two opinions may be
16 better than one. I don't know.
17 Q.  You suggested Doctor Mincer for a second opinion?
18 A.  Yes, sir.
19 Q.  Do you know Doctor Tom David?
20 A.  I do know him.
21 Q.  Do you believe that he is an honest man?
22 A.  I don't know anything of him other than I do know him. I
23 don't have an opinion --
24 Q.  Do you believe that he has-- do you believe that he has
25 adequate professional credentials to be a board certified


1 odontologist?
2 A.  Yes, sir, I do.
3 Q.  Is he the sort of forensic odontologist who might have one
4 opinion and another forensic odontologist like Doctor Harry
5 Mincer -- also board certified -- could have a contrary opinion
6 and both could be telling the truth the way they see it?
7 A.  I would hope that both would be presenting their opinion
8 as truthfully as possible, yes, sir.
9 Q.  And you -- and you acknowledge that it's entirely possible
10 for men of high skill and high integrity to simply disagree
11 about what they observe?
12 A.  Yes, sir, that's possible.
13 Q.  And let the jury decide?
14 A.  Yes, sir.
15 Q.  And you think that poor people should be entitled to
16 access to experts who can assist them in presenting their case?
17 A.  Yes, sir.
18 MR. MALLETT: Thank you very much.
19 THE COURT: You're free to go. Thank you very
20 much.
21 THE WITNESS: Thank you, sir.
22 THE COURT: Call your next witness.
23 MR. DAVIS: Your Honor, our next witness is
24 Doctor Peretti, and he will be here at 9:30 in the
25 morning.


1 THE COURT: All right. I guess we'll recess
2 until in the morning. Will they be here at 9:30?
3 MR. DAVIS: Yeah, he's gonna be here at 9:30 and
4 Doctor Sturner is supposed to be here at 10:15,
5 10:00, something like that.
6 THE COURT: And that's all the witnesses you'll
7 have?
8 MR. DAVIS: Yes, sir.


May 1998

June 1998

October 1998

March 1999

May 5, 1998 June 9, 1998 October 26, 1998 March 18, 1999
  June 10, 1998 October 27, 1998 March 19, 1999
    October 28, 1998