MARCH 18, 1999

STATE OF ARKANSAS	PLAINTIFF
VS.	NO. CR-93-450A
DAMIEN ECHOLS	DEFENDANT

HEARING ON RULE 37 PETITION

MARION, ARKANSAS

MARCH 18, 1999

APPEARANCES

FOR THE STATE: BRENT DAVIS
                PROSECUTING ATTORNEY
                P.O. BOX 491
                JONESBOR0, AR 72403

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

FOR THE DEFENDANT: ALVIN SCHAY
                    ATTORNEY AT LAW
                    217 WEST SECOND ST.
                    LITTLE ROCK, AR 72201
                    72472

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

BEFORE THE HONORABLE: DAVID BURNETT, CIRCUIT JUDGE

BARBARA J. FISHER, C.C.R.
OFFICIAL COURT REPORTER
P. O. BOX 521
PARAGOULD, AR  72451-0521
(870) 236-8034

INDEX
3/18/98

WITNESS FOR PETITIONER
NEAL HASKELL
     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
MOTION AND RULING 55-57
WITNESSES FOR STATE
MIKE ALLEN
     Examination by Mr. Davis     57-66
     Examination by Mr. Mallett     66-69
     Examination by Mr. Davis     69-75
     Examination by Mr. Mallett     75-76
HARRY H. MINCER
     Examination by Mr. Davis     77-93
     Examination by Mr. Mallett     93-103
     Examination by Mr. Davis     103
KEVIN DUGAN
     Examination by Mr. Davis     104-117
     Examination by Mr. Mallett     117-125
3/19/99
WITNESSES FOR STATE
FRANK PERETTI
     Examination by Mr. Davis     127-139
     Examination by Mr. Mallett     139-151
WILLIAM STURNER
     Examination by Mr. Davis     151-156
     Examination by Mr. Mallett     156-159
STATE RESTS     159
COLLOQUY BETWEEN COURT AND COUNSEL     159-166
REPORTER CERTIFICATE     167

	3
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.
18	(WITNESS BEING SWORN BY COURT.)
19	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:
22	DIRECT EXAMINATION
23	BY MR. MALLETT:
24	Q.  Good morning, sir. Resuming the Rule 37 proceedings on
25	behalf of petitioner Damien Echols, will you please introduce
	4
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.
	5
1	MR. MALLETT: I haven't had a chance to show it
2	to the state.
3	BY MR. MALLETT:
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.
10	MR. MALLETT: Yes, sir. (HANDING TO MR. DAVIS.)
11	THE COURT: Any objection?
12	MR. DAVIS: No, Your Honor.
13	THE COURT: All right, it may be received
14	without objection.
15	(PETITIONER'S EXHIBIT NUMBER SIXTY-FOUR IS
16	RECEIVED IN EVIDENCE.)
17	BY MR. MALLETT:
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
	6
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.
22	BY MR. MALLETT:
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.
	7
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
	8
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
	9
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.
	10
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
	11
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?
	12
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
	13
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
	14
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?
	15
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
	16
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?
	17
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
	18
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
	19
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.
	20
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
	21
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?
	22
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
	23
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
	24
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
	25
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.
	26
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
	27
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.
	28
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?
8	THE WITNESS: When?
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.
	29
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."
6	(PETITIONER'S EXHIBIT NUMBER SIXTY-FIVE IS
7	MARKED FOR IDENTIFICATION.)
8	THE COURT: It should have the wind in there.
9	BY MR. MALLETT:
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.
24	(PETITIONER'S EXHIBIT NUMBER SIXTY-FIVE IS
25	RECEIVED IN EVIDENCE. )
	30
1	BY MR. MALLETT:
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
	31
1	testimony?
2	A.  Absolutely not.
3	Q.  Okay.
4	MR. MALLETT: Thank you. No further questions,
5	Your Honor.
6	CROSS EXAMINATION
7	BY MR. DAVIS:
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.
	32
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?
	33
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 --
	34
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
	35
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.
	36
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.
	37
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
	38
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
	39
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.
	40
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
	41
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
	42
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.
	43
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
	44
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
	45
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?
	46
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.
	47
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
	48
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
	49
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
	50
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.
9	REDIRECT EXAMINATION
10	BY MR. MALLETT:
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
	51
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
	52
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?
	53
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.
5	RECROSS EXAMINATION
6	BY MR. DAVIS:
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 --
	54
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.
25	REDIRECT EXAMINATION
	55
1	BY MR. MALLETT:
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.)
13	(RETURN TO OPEN COURT.)
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.
20	(THE FOLLOWING DISCUSSION WAS HELD AT THE
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
	55
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
	57
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.
13	MIKE ALLEN
14	having been first duly sworn to speak the truth, the whole
15	truth, and nothing but the truth, then testified as follows:
16	DIRECT EXAMINATION
17	BY MR. DAVIS:
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.
	58
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.
	59
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
	60
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
	61
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.
8	(INDICATING.)
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
	62
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?
	63
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?
	64
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.
10	BY MR. DAVIS:
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
13	TO WITNESS.)
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
	65
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.
5	(THE FOLLOWING DISCUSSION WAS HELD AT THE
6	BENCH.)
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.
23	(RETURN TO OPEN COURT.)
24	THE COURT: Okay. They may be received.
25	(STATE'S EXHIBITS NUMBER THREE, FOUR, AND FIVE
	66
1	ARE RECEIVED IN EVIDENCE.)
2	MR. DAVIS: Your Honor, with that I would pass
3	the witness.
4	THE COURT: All right.
5	CROSS EXAMINATION
6	BY MR. MALLETT:
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
	67
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
	68
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 --
	69
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.
9	REDIRECT EXAMINATION
10	BY MR. DAVIS:
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
	70
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
	71
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.
8	MR. DAVIS: (HANDING TO MR. MALLETT.)
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.
17	REDIRECT EXAMINATION
18	BY MR. DAVIS:
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
	72
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" --
	73
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?
7	THE COURT: Yes.
8	BY THE WITNESS:
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.
16	BY THE WITNESS:
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.
	74
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.
6	BY MR. DAVIS:
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.
24	(STATE'S EXHIBIT NUMBER SEVEN IS RECEIVED IN
25	EVIDENCE.)
	75
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.
7	RECROSS EXAMINATION
8	BY MR. MALLETT:
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
	76
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.
	77
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.
4	(RECESS.)
5	(RETURN TO OPEN COURT.)
6	MR. DAVIS: Your Honor, Doctor Mincer needs to
7	be sworn in.
8	HARRY H. MINCER
9	having been first duly sworn to speak the truth, the whole
10	truth, and nothing but the truth, then testified as follows:
11	DIRECT EXAMINATION
12	BY MR. DAVIS:
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
	78
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.
	79
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.
9	(STATE'S EXHIBIT NUMBER SEVENTEEN M IS RECEIVED
10	IN EVIDENCE.)
11	BY MR. DAVIS:
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.
	80
1	BY MR. DAVIS:
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.
	81
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.
14	MR. DAVIS: (HANDING TO MR. MALLETT.)
15	MR. MALLETT: (EXAMINING.)
16	THE COURT: Any objection?
17	MR. MALLETT: No, Your Honor.
18	THE COURT: All right, they may be received
19	without objection.
20	(STATE'S EXHIBITS NUMBER EIGHT M, NINE M AND TEN
21	M ARE RECEIVED IN EVIDENCE.)
22	BY MR. DAVIS:
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
	82
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
	83
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.
24	MALLETT.)
25	MR. MALLETT: (EXAMINING.)
	84
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.
9	(STATE'S EXHIBITS NUMBER ELEVEN M, TWELVE M AND
10	THIRTEEN MARE RECEIVED IN EVIDENCE.)
11	BY MR. DAVIS:
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
	85
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.
5	MR. DAVIS: (HANDING TO MR. MALLETT.)
6	MR. MALLETT: (EXAMINING.) No objection.
7	THE COURT: All right, they may be received
8	without objection.
9	(STATE'S EXHIBITS NUMBER FOURTEEN M, FIFTEEN M,
10	AND SIXTEEN MARE RECEIVED IN EVIDENCE.)
11	BY MR. DAVIS:
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
	86
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
	87
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
	88
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.
	89
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
	90
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
	91
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
	92
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
	93
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.
11	BY THE WITNESS:
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.
24	CROSS EXAMINATION
25	BY MR. MALLETT:
	94
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.
	95
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
	96
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.
	97
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?
17	A.  No. (HANDING TO MR. MALLETT.)
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.
	98
1	MR. MALLETT: (HANDING TO MR. DAVIS.)
2	MR. DAVIS: (EXAMINING.) I have no problem.
3	THE COURT: All right.
4	(PETITIONER'S EXHIBIT NUMBER SIXTY-SIX IS
5	RECEIVED IN EVIDENCE.)
6	BY MR. MALLETT:
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.
13	BY MR. MALLETT:
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.
	99
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 --
	100
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?
	101
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
	102
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 --
	103
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.
12	REDIRECT EXAMINATION
13	BY MR. DAVIS:
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
	104
1	he's scheduled to be here at 3:00.
2	(RECESS.)
3	(RETURN TO OPEN COURT.)
4	KEVIN DUGAN
5	having been first duly sworn to speak the truth, the whole
6	truth, and nothing but the truth, then testified as follows:
7	DIRECT EXAMINATION
8	BY MR. DAVIS:
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
	105
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.
	106
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.
	107
1	BY MR. DAVIS:
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
5	WITNESS.)
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.
15	(STATE'S EXHIBIT NUMBER EIGHTEEN D IS RECEIVED
16	IN EVIDENCE.)
17	BY MR. DAVIS:
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?
	108
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
	109
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
	110
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
	111
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?
14	(HANDING TO WITNESS.)
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.
	112
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.
4	(STATE'S EXHIBITS NUMBER NINETEEN D, TWENTY D,
5	TWENTY-ONE D, AND TWENTY-TWO D ARE RECEIVED IN
6	EVIDENCE.)
7	BY MR. DAVIS:
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
	114
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
	115
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
	116
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
	117
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.
17	CROSS EXAMINATION
18	BY MR. MALLETT:
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
	118
1	with the --
2	THE COURT: Here it is. (HANDING TO MR.
3	MALLETT.)
4	BY MR. MALLETT:
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
	119
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
	120
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.
	121
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 --
	122
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.
	123
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
	124
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.
	125
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.
9	(ADJOURNMENT.)
	10

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