OCTOBER 27, 1998
IN THE CIRCUIT COURT OF CRAIGHEAD COUNTY, ARKANSAS
STATE OF ARKANSAS PLAINTIFF
VS. NO. CR-93-450A
DAMIEN ECHOLS DEFENDANT
HEARING ON RULE 37 PETITION
OCTOBER 27, 1998
FOR THE STATE: BRENT DAVIS
P. O. BOX 491
JONESBORO, AR 72403
ASST. ATTORNEY GENERAL JUSTICE BUILDING
LITTLE ROCK, AR 72201
FOR THE DEFENDANT: CHET DUNLAP COURT-APPOINTED ATTORNEY P.O. BOX 54 TRUMANN, AR 72472
MELISSA MARTIN ATTORNEYS AT LAW
55 WAUGH DRIVE, SUITE 900
HOUSTON, TX 77007
BEFORE THE HONORABLE: DAVID BURNETT, CIRCUIT JUDGE
BARBARA J. FISHER, C.C.R.
OFFICIAL COURT REPORTER
P.O. BOX 52l
PARAGOULD, AR 72451-0521
INDEX (VOLUME V)
WITNESSES FOR PETITIONER
BRENT TURVEY (CONT.)
Examination by Mr. Davis 868-990
Examination by Mr. Mallett 991-1001
Examination by Mr. Mallett 1002-1065
Examination by Mr. Davis 1057-1089
Examination by Mr. Mallett 1089-1096
47 Through 50 1022
53 Through 55 1055
56 And 57 1057
58 Through 61 1058
1 JONESBORO, ARKANSAS, OCTOBER 27, 1998, AT 9:30 A.M.
2 THE COURT: Are you ready? All right, any time
3 you're ready then, Mr. Davis.
4 CONTINUED CROSS EXAMINATION
5 BY MR. DAVIS:
6 Q. Mr. Turvey, just for purposes of the record. You're the
7 same Brent Turvey who testified yesterday?
8 A. I am.
9 Q. And you recognize you're still under oath?
10 A. I do.
11 Q. Okay. Do you have before you copy -- a copy of the report
12 that you furnished and prepared, I guess, for Mr. Stidham and
13 also for Mr. Mallett entitled Confidential Forensic Analysis
14 and Psychological Profile?
15 A. That's correct.
16 Q. Do you also have before you a copy of your resume that was
17 introduced into evidence yesterday?
18 A. I do not. I gave it back to the Judge.
19 MR. DAVIS: Barbara, do you have that copy?
20 THE COURT REPORTER: Yes. (HANDING.)
21 BY MR. DAVIS:
22 Q. Let me go back just briefly and ask you a few questions
23 about the qualifications listed in your resume.
24 Basically, your opinion in this case was rendered fifteen
25 months after you received your degree in forensic science from
1 New Haven University; is that right?
2 A. That's correct.
3 Q. Okay. So other than the experience that you gained while
4 you were undergoing your education in forensic science, the
5 experience that you had prior to the time that you made this
6 report and did your evaluation was fifteen months from the time
7 you graduated until the time you made the report?
8 A. Yes, with an explanation.
9 Q. Okay.
10 A. My explanation is that yesterday we discussed what I had
11 been doing as an undergraduate, and you only asked me about the
12 content of my degrees -- the title of my degrees. You did not
13 ask me what other experience I had in the forensic sciences,
14 and I just wanted to clarify that I had been studying sex
15 offender populations as an undergraduate. So just to clear
16 that up.
17 Q. Okay. And you indicated to me that you didn't have any
18 degrees or training in the area of sociology?
19 A. That's correct.
20 Q. Okay. Now, in referring to --
21 THE COURT: Yeah, you need to -- so the Court
22 reporter can hear you better.
23 MR. MALLETT: Mr. Turvey, you couldn't tell but
24 you were inadvertently turning sideways facing the
25 jury box. Actually, this is not the jury. These are
1 people simply interested in this public courtroom and
2 the proceedings. It is the Judge who is to receive
3 the evidence. So if you need to turn sideways
4 because of the small area and your large size, I
5 prefer you turn facing his Honor.
6 BY MR. DAVIS:
7 Q. Do you -- do you recall writing and preparing an article
8 for your business entity, Knowledge Solutions -- Knowledge
9 Solutions, where you wrote an article entitled, What is
10 Criminal Profiling?
11 A. Yes, with an explanation.
12 Q. Okay.
13 A. It's not -- it's not an article. It is a - just a Web
14 page summary. It's not to be a -- presented as a professional
16 Q. Okay. Do you recall in that article where it says, the
17 criminal profiler should ideally be cross trained in several
18 disciplines. The profiler need not necessarily be an expert
19 put should have a deep appreciation and intermediate
20 understanding of the tenets of at least the following
22 Does that sound like something you would have written?
23 A. It is.
24 Q. Is that accurate?
25 A. Yes, it is.
1 Q. Okay. And then it proceeds to list those as psychology,
2 the study of individual behavior?
3 A. Yes.
4 Q. Okay. And sociology, the study of group behavior, groups
5 being comprised of individuals.
6 A. Yes.
7 Q. Okay. And what studies do you have in the area of
9 A. I've taken undergraduate courses in sociology.
10 Q. Sociology one -- basic sociology -- the basic course you
11 have to have to get your undergraduate degree?
12 A. No, these were not required for my undergraduate degree,
14 Q. Okay. What sociology courses and training have you had?
15 A. The basic and intermediate level of undergraduate
16 sociology courses.
17 Q. And it also says, at least the following disciplines
18 forensic pathology, correct?
19 A. Yes.
20 Q. Okay. And you're not a forensic pathologist?
21 A. No, I'm not.
22 Q. Okay. And it says, further, that anyone without specific
23 training from qualified experts or experience in at least the
24 above fields is not in my opinion capable of the complex
25 processes involved in rendering a criminal profile.
1 A. That's correct.
2 Q. Okay. And as far as experience in the field of sociology,
3 you don't have any, do you?
4 A. Training in sociology, not -- not experience, no. I mean
6 Q. Okay.
7 A. Please quali -- could you qualify what experience means?
8 Q. Have you ever worked in the field of sociology as a
10 A. No, I have not.
11 Q. Okay. Any degrees in sociology?
12 A. No, I do not.
13 Q. Undergraduate courses at -- at an undergraduate level --
14 few courses in sociology, right?
15 A. That's correct.
16 Q. Okay. And your statement in this was that anyone without
17 specific training from qualified experts or experience in at
18 least the above fields is not in my opinion capable of the
19 complex processes involved in rendering a criminal profile.
20 A. That's correct.
21 Q. Yet you still contend that you fit the criteria in order
22 to do that?
23 A. I do.
24 Q. But --
25 A. As you read them, I do.
1 Q. Is Knowledge Solutions a for-profit entity?
2 A. Yes, it is.
3 Q. Okay. In other word, the more people you sign up to take
4 your courses, the more income you derive?
5 A. The more money Knowledge Solutions derives, yes.
6 Q. Okay. And you benefit from that because you're one of
7 three principal partners in the corporate entity of Knowledge
9 A. Yes, I do.
10 Q. Okay. And was Ms. -- you indicated earlier that yesterday
11 that Ms. Bakken, the individual who first alerted you to this
12 case, was someone who was taking a course from you?
13 A. Yes, she was.
14 Q. Okay. And what was her -- the information that she
15 provided to you? What -- what -- when she contacted you, what
16 information did she disclose to you?
17 A. She began to discuss generally her perception of the crime
18 and the details of the crime.
19 Q. And where is she from?
20 A. Where is she from?
21 Q. Right.
22 A. I believe, she resides in Los Angeles,
24 Q. Okay. Did she reside in California at that time?
25 A. I believe she did, yes.
1 Q. What was your understanding as to the source of her
2 knowledge or information regarding this case?
3 A. She explained to me that the source of her knowledge was
4 Dan Stidham.
5 Q. Okay. You -- you -- did you inquire of her how she
6 happened to get in contact with the defense attorney
7 representing one of the three defendants?
8 A. Yes, I did.
9 Q. Okay. And how was that?
10 A. She explained to me that she was designing the movie
11 poster for the film "Paradise Lost" and contacted -- and after
12 having seen the -- the film, she decided that she did not like
13 the explanations that were in the film, and the issue was not
14 resolved for her so she contacted the attorney.
15 Q. Okay. And did she re -- and you said that you had
16 approximately a thirty minute conversation with her before you
17 cut her off. And I think I wrote down the note that -- after
18 thirty minutes of biased hearsay, you decided to cut her off so
19 that it wouldn't affect you further?
20 A. Well, after about thirty or forty-five minutes and the
21 whole thing wasn't ---- wasn't biased hearsay but, yes, that's
22 approximately true.
23 Q. What was her slant on what she had gathered from the movie
24 -- what's in the film?
25 A. I don't know. I didn't let her give me her slant -- as I
1 understand your question.
2 Q. Why -- why was she inquiring of you as to information
3 regarding this? Did you get the impression that based on her
4 view of the movie that she felt like that the correct result
5 was achieved, or did you get the impression that she felt like
6 an incorrect result occurred in this trial?
7 A. Truthfully, I'd have to say that she was registering her
8 confusion to me.
9 Q. And did you view the movie?
10 A. Yes, with an explanation.
11 Q. Well, did you view the movie?
12 A. Yes, with an explanation.
13 Q. When?
14 A. I viewed the movie probably three months after I received
15 the material from Dan Stidham.
16 Q. Okay. And did you receive any information regarding the
17 content of the movie prior to that time?
18 A. Yes, with an explanation. My explanation being that I was
19 told that the movie was made. I was told who made it, and I
20 was told generally about what types of things were depicted in
21 the film. That there were some segments of the crime scene
22 video and that sort of thing. I was not -- it did not impart
23 upon me a slant or bias of any kind. I didn't get -- I didn't
24 actually get a flavor for the content of the movie.
25 Q. Now, you said that after you talked with Ms. Bakken, you
1 also talked with Dan Stidham.
2 A. Yes.
3 Q. Okay. What was Dan Stidham's -- what did he relate to you
4 in terms of his position regarding the validity of the
5 convictions obtained as a result of the trial of Damien Echols
6 and Jesse Misskelley?
7 A. In truth again, he was of the same frame of mind as Cathy
8 Bakken who registered confusion because he felt that his -- he
9 did not know what had happened. He felt like a forensic
10 scientist had not looked at the material. He felt that he
11 didn't adequately understand what occurred, and one of the
12 first things I told Dan is, I said, "Dan, now if I get this
13 material and I don't -- and it comes back looking like
14 something you don't want to hear, you're gonna have to hear it
15 from me."
16 And he said, "I don't have a problem with that."
17 And I said, "Good, then I'll take the material."
18 Q. Did he indicate to you that he felt like other people were
19 responsible for this crime?
20 A. Again, he registered his confusion. He did not have -- he
21 did not seem to have a take one way or another with me. That
22 was my impression.
23 Q. Well, did he go any further than to say, Brent, I'm just
24 so confused, or did he tell you what he was confused about and
25 what he thought the basis for the confusion was?
1 A. He talked in generalities about it, but didn't really
2 have the appreciation for any of the evidence in the case so he
3 really didn't have -- other than the courtroom proceedings --
4 he didn't really have a basis for any specific conversation.
5 That would have to come at a later date after I had reviewed
6 the materials.
7 Q. Mr. Stidham didn't have an appreciation for any of the
8 other evidence in the case?
9 A. Not to my perception, he didn't.
10 Q. The defense attorney that was involved in the Misskelley
12 A. That's correct.
13 Q. Now, in your -- did you review -- out of the information
14 that he sent you -- as I understand it, he sent you autopsy
15 photos; is that right?
16 A. That's correct.
17 Q. And he sent you crime scene photos?
18 A. That's correct.
19 Q. And he sent you some criminal investigation reports. Do
20 know if you received all of 'em?
21 A. I'm not aware that I received all of them.
22 Q. Okay. Now -- how voluminous was the material that he sent
23 you? Can you give us some estimate in terms of pages?
24 A. No, I can't.
25 Q. Okay. And was it -- was it -- was it boxloads of
1 material? Was it an envelope of material?
2 A. It was at least three boxloads over time.
3 Q. Over time? Before October when you rendered your opinion,
4 when -- how much did you have?
5 A. I had those boxes, yes.
6 Q. Now, did he give you witness statements?
7 A. Yes, he did.
8 Q. All witness statements?
9 A. I -- I could not say for sure all witnesses. I know what
10 I got. I don't know that I got all of them.
11 Q. Okay. Did you review testimony from the trial testimony
12 taken under oath?
13 A. In fact, I --- I actually didn't review testimony taken
14 under oath --
15 Q. Okay.
16 A. -- until after I rendered my report.
17 Q. So your report doesn't take into consideration the
18 testimony that was rendered at trial?
19 A. Not all of it, no.
20 Q. Okay. Well, if you didn't read testimony until after your
21 report, then your report wouldn't contain any references or
22 wouldn't be based whatsoever on any testimony that was rendered
23 at the trial, correct?
24 A. My report is not, no.
25 Q. Okay. Because you didn't have access to that information
1 before you rendered your report?
2 A. Yes, with an explanation. I had access to some, but it
3 was not germane to issues of physical evidence. I didn't have
4 it all, and the stuff that I had wasn't germane to the issues
5 that I was -- that I am qualified to opine about.
6 Q. What testimony did you have?
7 A. I believe I had some hearing information regarding Richard
8 Ofshe and that wasn't for me not an issue. I didn't want to --
9 I didn't even read the Misskelley -- quote -- unquote
10 confession. So anything to do with the potential -- I tried to
11 limit my bias by not including suspect information or defendant
12 information in my analysis. I only go from what I see at the
13 crime scene.
14 Q. Okay. So at the time you rendered your report, you hadn't
15 even reviewed any of the confession of Jesse Misskelley?
16 A. No, I had not.
17 Q. Okay. Either before the crime was committed, before the
18 trial, or after the trial occurred?
19 A. I'm sorry, could you repeat that question?
20 Q. Okay. At the time you rendered your opinion that's
21 contained in this report, you had not reviewed the confession
22 of Jesse Misskelley given shortly before the arrest of Damien
24 A. Absolutely not. It would have biased my opinion.
25 Q. Okay. Nor any confessions given by Jesse Misskelley after
1 his conviction?
2 A. No.
3 Q. Okay. And have you done that up to this point?
4 A. I have read the confession -- actually, on the flight out
5 here for this hearing.
6 Q. Okay.
7 A. For the first time. It was the first time I ever read it.
8 Q. When you say, "the confession," which confession are you
9 talking about?
10 A. I'm referring to the very first one.
11 Q. Have you reviewed, or are you aware of other subsequent
13 A. I'm aware that there's a second one given on the same day
14 that -- that's where the police asked him to -- to change his
15 mind because they didn't like his first one. I'm aware of that
16 one, yes.
17 Q. Are you aware of subsequent confessions after his
19 A. I'm not -- I have no -- I have no -- I have no written
20 document suggesting that there's another confession, no.
21 Okay. And so you haven't seen it. You've heard rumor of
22 it. Is that accurate?
23 A. I've heard some hearsay about some potential confession.
24 But, again, this is not germane to my analysis, so --
25 Q. Okay. So confessions aren't really something that you
1 consider in terms of making your opinion -- rendering opinions?
2 A. That -- I'm not qualified to do that, no.
3 Q. Okay. Hare you -- you refer in your resume to articles
4 that you have written and the ones that are listed -- you have
5 a -- a sheet entitled -- I believe it's on page twenty of your
6 resume -- which says, "Published Works."
7 A. (EXAMINING.) Yes.
8 Q. Okay. And all of those show dates of 1999, correct?
9 A. That's correct.
10 Q. Okay. So is it fair to say that when you list this in the
11 resume of published works, that those are not works that have
12 been published as of this date?
13 A. That is correct. They're to be published.
14 Q. Okay. So that would be more accurately reflected as to be
15 published works, correct?
16 A. Yes.
17 Q. Okay. Have you ever had any articles published in any
18 peer review articles where it's subject to review by peers in
19 the areas of criminal profiling or forensic pathology -- or
20 forensic science -- excuse me?
21 A. No, with an explanation.
22 Q. Okay.
23 A. My explanation is that I have generated articles for peer
24 use so -- not peer reviewed articles but for peer use -- Just a
25 minor --
1 Q. Okay. I notice at the bottom of that page number twenty
2 there is -- it says they have -- there's also some articles
3 archived by the Royal Canadian Mounted Police and one of them
4 is entitled, "A Utopic Determination of Oral Sex" by Brent E.
5 Turvey, M. S., published December fifth of 1994.
6 A. That's correct.
7 Q. Okay. Now, when it says, "M. S.," is that indicating a
8 Master of Science in forensic sciences?
9 A. That's correct.
10 Q. Okay. December fifth of 1994 when you published that, you
11 wouldn't have had that degree, would you?
12 A. No, I would not.
13 Q. Okay.
14 A. Not at the time. It was not put up on the Website until
15 much after that.
16 Q. Okay. And the other article, "The Impressions of a Man,
17 An Objective Forensic Guideline for Profiling Violent Sex,
18 Serial Material Sex Offenders," which is also shown published
19 in March of 1995, by Brent E. Turvey, M. S. You wouldn't have
20 been a master -- had your degree -- Master of Science degree in
21 forensic science at that point either, would you?
22 A. No, I would not. Again, I did -- I did not put it up on
23 the Website until after I had graduated.
24 THE COURT: Are these in periodicals, or are
25 these articles that you've written for -- for the --
1 the Websites?
2 THE WITNESS: These are not in periodicals.
3 They are articles -- the -- the ten articles that are
4 listed from page twenty to twenty-one of the -- of
5 the resume, are written for peer use, and they're
6 published on the Website, and all of them have been
7 archived by the Royal Canadian Mounted Police in
8 their official library.
9 BY MR. DAVIS:
10 Q. In other words, they downloaded 'em off your Knowledge
11 Solutions site and archived them in their materials, correct?
12 A. Yes, after receiving written permission from myself.
13 Q. And in fact, most of the articles you list there as being
14 archived by the Royal Canadian Mounted Police are also listed
15 on page fifteen as published works which you published -- for
16 your -- for the library section of Knowledge Solutions; is that
18 A. Excuse me, page fifteen?
19 Q. Right. If you look at the list on page fifteen and your
20 list on page twenty, I believe it is, the one we were just
21 referring to.
22 A. (EXAMINING) Page fifteen of my document has training and
23 seminars attended.
24 Q. Well, I've -- I've flipped back over to your first resume.
25 I'm sorry. You listed those in your first resume under -- I'm
1 looking at page fifteen -- under a title of "Published Works."
2 A. I do not have that document so I can't comment on it.
3 Q. Okay. This is a page -- page fifteen out of the original
4 resume that you forwarded to me. (HANDING TO WITNESS.)
5 A. (EXAMINING.) Yes.
6 Q. And I believe that one's dated 8-4 of '97?
7 A. Yes, it is.
8 Q. And it reflects that those works that are listed there
9 were published originally for your Knowledge Solutions'
10 Website; is that correct?
11 A. They were published in the library of our On-Line News --
12 archive, yes, that's correct.
13 Q. So you basically published those for your students to use?
14 A. For students and professionals, yes.
15 Q. Okay. But not subject to peer review by other people in
16 the areas of forensic science or criminal profiling, correct?
17 A. No, that's not actually correct. Just a minor point, as
18 they're out there they are being critiqued by other people, and
19 I constantly get feedback from people on them including
20 forensic scientists and other criminal profilers, so -- but
21 published, they were not peer reviewed, that's
23 Q. Have you ever testified as an expert in the area of
24 criminal profiling in a criminal case before a jury?
25 A. No, I have not.
1 Q. Okay. Have you ever been qualified to testify as an
2 expert in the area of criminal profiling?
3 A. No, I have not.
4 Q. Okay. Have you ever attempted to qualify as an expert in
5 the area of crim -- criminal profiling and have your testimony
6 submitted to a jury for purposes of determining if, in fact,
7 you're an expert in that area?
8 A. Yes, I have.
9 Q. Okay. What were the results?
10 A. It only happened one other time.
11 Q. Was that in Oregon?
12 A. Yes, it was.
13 Q. Is that the Hale case?
14 A. That's correct.
15 Q. Okay. And was there a preliminary hearing to determine if
16 in fact your testimony would be acceptable as an expert in that
18 A. Yes, it was.
19 Q. And did you, in fact -- was there a preliminary hearing at
20 which time you testified and the judge made a ruling that he
21 would not use your testimony?
22 A. Yes, he did.
23 THE COURT: Was -- did Ofshe testify in that
24 case, too?
25 THE WITNESS: No, sir. No. The issue was just
1 whether or not -- well, I won't get into it. I
3 BY MR. DAVIS:
4 Q. Well, let me inquire just a second. In that case there
5 were multiple defendants, right7
6 A. Yes, there were.
7 A. A rape/homicide?
8 Q. Yes, it was.
9 A. Okay. And multiple victims?
10 A. Yes, it was.
11 Q. Okay. And is it -- and this may be boiling it down to
12 somewhat simplification -- but was -- were you testifying
13 attempting to testify as an expert in behalf of one of the
14 particular co-defendants?
15 A. I was retained by one of the -- I was retained by an
16 attorney who represented one of the co-defendants, yes.
17 Q. Okay. And was the subject of your testimony going to be
18 based on your profiling of that particular individual that the
19 type of crime that was committed and the acts that occurred
20 would not have been consistent with the criminal profile that
21 you developed of that particular person?
22 A. No, it was not.
23 Q. Okay. So your testimony was going to be how -- how -- how
24 was it your testimony was going to affect -- what relevance did
25 you envision your testimony would have regarding that case?
1 A. Motive
2 Q. Okay. Was that based on your criminal profile of your --
3 that individual wouldn't have had the motive to commit that
5 A. That was not going to be my testimony, no.
6 Q. Was it going to be your testimony that the person that you
7 were testifying in behalf of did have the motive for that
9 A. No, that was not to be my testimony either.
10 Q. Okay. What was your testimony going to be?
11 A. My testimony was going to be that the crime scene behavior
12 suggested a particular motive.
13 Q. Okay. And how was that going to benefit the client that
14 you were being requested to testify for?
15 A. I don't know that it would have.
16 Q. I mean--
17 A. I'm not an attorney. I don't know.
18 Q. Okay.
19 A. I don't know how the attorney was going to -- to use that.
20 Q. Well, do -- and if you Just have no idea how come they
21 wanted you to testify then you could tell us, but did you --
22 draw any conclusions based on why that they called you,
23 they asked you questions at this hearing -- you consulted with
24 the attorneys representing that defendant, right?
25 A. Yes.
1 Q. Okay. How -- did you not glean any impression as to why
2 they thought you might be a helpful witness for the defendant?
3 A. I gleaned an impression.
4 Q. Okay. What was that impression?
5 A. My impression was that they were going to paint a picture
6 of motive to explain the behavior that occurred at the crime
7 scene. That my -- that my opinion would come in to help
8 explain the crimes -- the criminalist reconstruction that had
9 been done.
10 Q. And was the reason your testimony would have been -- at
11 least, perceived as beneficial, -- because that motive that you
12 would have described through your criminal profiling would have
13 been more consistent with one defendant than with another?
14 A. It's possible that they would have made that argument. I
15 would not have.
16 Q. Okay. But that was the reason they wanted to put you on
17 so that they could say that the motive was more consistent with
18 another co-defendant rather than the one they were
20 A. I'm sure it was.
21 Q. Okay. And the court in that case determined that your --
22 you did not qualify as an expert to testify in that area?
23 A. The Judge determined that criminal profiling was not
25 Q. So the extent of your experience after you graduated with
1 your degree in forensic science has been limited to
2 consultations and investigation but not testifying as an expert
3 in court?
4 A. That's correct. I don't typically testify in any of my
6 Q. Okay. Even though you've attempted to and not be allowed
7 to, correct?
8 A. Only one time.
9 Q. Now, you listed -- you listed on your resume the number of
10 case consultations that you've been involved in?
11 A. That' s correct.
12 Q. Okay. And this would be so that we could glean what type
13 of experience you had from the time you graduated with your
14 degree in forensic science up until the time you rendered this
15 report, correct?
16 A. That's the hope, yes.
17 Q. Okay. And you listed a number of these cases -- you
18 listed one where -- 5-97, public defender's office in
19 Anchorage, Alaska -- I'm not sure it's on your second one, but
20 it's on your first one.
21 A. (EXAMINING) Okay.
22 Q. The case of rape/homicide, role, criminal profiling
24 A. Yes.
25 Q. Okay.
1 A. I don't have it on this one but I do have it -- I believe
2 I have it on the first one.
3 Q. Okay. And so I can rely that that was something that you
4 felt like was important in developing your experience and
5 expertise in this area?
6 A. Yes.
7 Q. Okay.
8 A. Some -- somewhat. It was a very limited involvement.
9 Very -- it was just a -- a two hour phone conversation
11 Q. Okay. And you listed as the contact person, Frank --
12 Frank Wake for chief investigator?
13 MR. MALLETT: I want to apologize for
14 interrupting. I am concerned to realize that what
15 Mr. Davis is doing is cross examining the witness
16 about a resume that is not in evidence. So he's
17 asking him about words on paper that are not before
18 the Court and the Court can't review. It's an
19 exhibit not in evidence. I think it's certainly
20 outside the scope of our presentation and our
21 indicated reason for presenting Mr. Turvey briefly
22 yesterday. If the Court wishes to allow him to
23 continue in going beyond the scope of the direct, we
24 would suggest that the exhibit be marked and put into
25 evidence so the Court will have the pieces of paper
1 that he's asking the questions about. Otherwise, the
2 Court will have no way of looking at the real
3 evidence that he's questioning from.
4 THE COURT: Well, you didn't really produce the
5 witness as an expert or, at least, you didn't tender
6 him to the Court as an expert in any recognizable
7 field of expertise. And I'm very liberal in allowing
8 people that have a body of knowledge to testify under
9 our rules.
10 And here Mr. Davis seems to be challenging his
11 -- his -- his credibility and his expertise in the
12 field of profiling, and I think if -- if this witness
13 supplied him with more than one copy of a --- a resume
14 or C. V. that -- that it's fair game for him to
15 question him about it.
16 THE WITNESS: I did not.
17 THE COURT: Well, somebody certainly did. I
18 don't know who did.
19 I understood you to say you got it from the
20 witness; is that correct, Mr. Davis?
21 MR. DAVIS: Your Honor, I either got it from him
22 from Dan Stidham. It's on his letterhead.
23 THE COURT: Well, I guess --
24 MR. MALLETT: Now, may---
25 THE COURT: -- what you're saying is, is you
1 him to introduce whatever the first copy is?
2 MR. MALLETT: Well, what he's asking from but I
3 -- that is first. And I'm making the second point,
4 and that is that we did not ask the Court to accept
5 Mr. Turvey as an expert, nor did we ask Mr. Turvey to
6 state as evidence for this record as an expert any
7 profile --
8 THE COURT: Well, what did you tender him for
10 MR. MALLETT: To explain to the Court why the
11 history of why it came to pass that it was suggested
12 that if a pathologist, an odontologist, should have
13 reviewed the records before the original trial and
14 only for that reason. And that was the gist of his
15 testimony yesterday. So Mr. Davis is cross examining
16 him about matters that we didn't introduce into
18 MR. DAVIS: Your Honor -- your Honor, if I may
20 THE COURT: Yes.
21 MR. DAVIS: I think the -- the relevance of his
22 testimony is premised on his qualifications,
23 and in his qualifications which he testified to
24 yesterday and which are contained in numerous of the
25 writings that he's produced -- experience --
1 THE COURT: Well, you're -- what you're saying
2 is that he's been offered to -- as Mr. Mallett said
3 -- to bolster or support the notion that an
4 odontologist or other expert should have been
5 marshaled in the first trial to -- to determine if
6 such evidence existed, and your contention now is is
7 that if he possesses that type of expertise to -- to
8 suggest that some other expert be employed that --
9 that his whole testimony is premised upon his ability
10 to --- to review a crime scene and to make those
12 So, yeah, I'm gonna allow you to cross examine
13 him on that. I think it does go to that issue
14 whether or not he's really able to -- to make that
15 type of suggestion.
16 MR. MALLETT: Well, I --
17 THE COURT: So -- so I think that's a proper
18 basis for cross.
19 MR. MALLETT: Well, I certainly think the Court
20 xxx broad discretion particularly in a court-only
21 hearing in determining what the Court considers
22 relevant and what the Court would give proper weight.
23 And we renew our second request which is that if
24 he's gonna cross examine him from a piece of paper
25 not in evidence, it be put into evidence and the
1 witness be given a chance to review it.
2 MR. DAVIS: Your Honor, I don't think I'm
3 required to put this --
4 THE COURT: You're not required to put it in
5 evidence. You are required, however, to make a copy
6 of that information available to him, ask him if he's
7 knowledgeable about it, if he's familiar with it, and
8 if it purports to be some effort that -- that he made
9 to announce or to promote his credentials, then, yes,
10 I '11 allow you to present it to him. If he
11 acknowledges it's his, then you can cross examine him
12 on it.
13 MR. DAVIS: I asked him about it and he said he
14 acknowledged he put it in that resume, I think.
15 THE COURT: Well, that's -- I'm -- I'm gonna
16 allow you to do that. So I guess I'm overruling your
17 objection partially.
18 BY MR. DAVIS:
19 Q. And if that reflects that the contact on that case out of
20 Anchorage, Alaska, would have been Frank Wake, Chief
21 Investigator, does that sound accurate?
22 A. To my understanding, yes.
23 Q. Okay. And would it surprise you if Frank Wake upon being
24 contacted didn't recognize your name and indicated --
25 MR. MALLETT: We would object to his now
1 testifying for a person who is not as a witness as an
2 introduction of improper hearsay.
3 MR. DAVIS: That wasn't the question, your
5 THE COURT: I don't think it's a hearsay
6 objection. So I'm gonna overrule that. You may ask
7 a ques -- the question. Go ahead.
8 BY MR. DAVIS:
9 Q. Would it surprise you upon being contacted that Wake
10 indicated that he never used your services or sent you a bill
11 or that you provided any beneficial information regarding that
13 MR. MALLETT: We would renew the objection to
14 that question, your Honor.
15 THE COURT: Well, the way you finished the
16 question, I'm gonna sustain the objection. Your
17 question --
18 MR. DAVIS: Would it surprise -- okay. Okay.
19 BY MR. DAVIS:
20 Q. Would it surprise you if Mr. Wake upon being contacted
21 indicated that you -- that they never used your services?
22 MR. MALLETT: I'm sorry. Now he's testifying
23 again. To do -- seeking to do indirectly what the
24 rules clearly prevent him to do directly, and we
25 renew the objection.
1 THE COURT: Sustained.
2 BY MR. DAVIS:
3 Q. What services did you provide in that case in your two
4 hour phone conversation?
5 A. Mr. Wake inquired about a very horrible rape/homicide of
6 college co-ed, and he inquired to me as to the fetishistic
7 aspects of mud in the orifices of her -- of her body that were
8 found, and whether or not I felt that these were -- were they
9 fantasy, if these were related to m. o. -- the general aspect
10 of the case. He spoke for like two hours. It was a very
11 lengthy conversation.
12 THE COURT: Did he contact you, or did you
13 contact him?
14 THE WITNESS: He contacted me.
15 THE COURT: All right.
16 BY MR. DAVIS:
17 Q. And did you review any materials in regard to that case?
18 A. No. He decided at the end that what I had given him was
19 sufficient. They wanted to -- the question was, they had a
20 suspect in custody, and I think he was looking for a reason to
21 let the guy go because they didn't think he was a good suspect.
22 Q. Okay. Based on a two hour phone conversation, were you
23 able to render opinions to him that you felt like shed light
24 and were valuable to what he was requesting?
25 A. I gave him direction to what I gave him. I did not give
1 him conclusions. I gave him some directions. Some things to
2 look for. Some things to review himself.
3 Q. Okay. You also list one for the North Little Rock Police
4 Department -- let me look and see if it's on --
5 A. I think--
6 Q. Yes, it's on your second one, too. (EXAMINING.) I
7 believe on page thirteen.
8 A. (EXAMINING.) Yes.
9 Q. It says, criminal profiling consultant, threshold
10 assessment given, suspect developed and arrested.
11 A. Yes. Though just to clarify. The suspect arrest and
12 development is not necessarily subsequent to anything that I
13 contributed to the case. That's just the disposition of the
15 Q. Okay. Isn't it true in that case you never did any
16 criminal profiling, did you?
17 A. That's not true.
18 Q. Okay. And so if people in that department indicated that,
19 they would not be correct?
20 A. They would be grossly incorrect.
21 Q. Okay. Was that based on -- was that a telephone call?
22 A. Again -- again, yes. It was only about a three hour
23 telephone conversation. He asked me to generate -- he had
24 arrested -- well, let me back up. It was a very brutal rape/
25 homicide of a security guard in a Sears parking lot. And Vern
1 Geberth was also -- also working on the case -- being asked to
2 look at it certain aspects for relationship to another case
3 that was occurring in another county. They thought it might be
4 a serial offender. They contacted me indirectly through
5 another party. They asked me for my opinion, and I prepared
6 them a small cursory threshold assessment of about two pages
7 and sent it to them because I felt that they probably already
8 interviewed the suspect and that they needed to go back and do
9 a complete victimology. So again, I -- I requested that -- I
10 gave them investigative direction. I did not prepare a full
11 criminal profile as we have before us here, but I did do what I
12 would consider to be work-related criminal profiling. I gave
13 them investigative direction. And, in fact, they had already
14 interviewed the suspect. They went back. They got blood, and
15 they made the arrest, and I was subsequently contacted by the
16 Lieutenant in that case, and he was very appreciated --
17 appreciative of my help. So it would surprise me if he hadn't
18 heard of me.
19 Q. So a three hour telephone conversation was the content of
20 your assistance and experience in that case?
21 A. In that particular case, yes.
22 Q. Okay. And in the other one that was listed -- and, in
23 fact, it is shown on your resume that's been introduced on page
24 thirteen -- 5-97 on page thirteen of the resume dated 5-18 of
25 '98 -- that was a two hour conversation?
1 A. Approximately two hours, yes.
2 Q. Okay. So in those two matters that you've listed as part
3 of your resume showing your experience, we're talking about
4 five hours of telephone conversations with no review of any
5 paper or documentary files?
6 A. That was the only two phone conversation profiles I've
7 ever done, but, yes.
8 Q. Okay.
9 A. And I didn't give full profiles. All I gave in both cases
10 were substantive investigative direction.
11 Q. And the -- on page nine of that resume where it talks
12 about your experience from 3-97 to 5-98, for the law office of
13 Terri Wood, P.C., where you say your role was forensic
14 analysis, criminal profiling consultant and trial strategy.
15 Full profile developed. Strategy on-going. State of Oregon
16 versus Conan Wayne Hale.
17 A. Oh, yes.
18 Q. That's the case where you weren't allowed -- wasn't
19 qualified to testify, correct?
20 A. They -- yes, with an explanation. The explanation being
21 that the judge did not rule that I was not qualified as a
22 criminal profiler. He ruled that criminal profiling is non-
24 Q. So that the evidence itself would not be admissible?
25 A. Yes, that's correct.
1 Q. And I also believe in the first and, again, let me see if
2 it's in your second one, too -- (EXAMINING). In the first
3 resume you indicated some involvement in the blue light rapist
4 case here in Arkansas.
5 A. I believe I had that under things I had reviewed for the
6 press, not under professional case consultations.
7 Q. Okay. I stand -- I stand corrected on that.
8 A. Yeah. I don't -- and I delineate those two things.
9 Things that are done for the press are just for a matter of --
10 so that my clients know what things I've spoken out on public
11 on so they can go and find out and hear whether or not I'm
12 making wild accusations and things like that -- not as --not
13 as --- not to bolster any professional credentials or anything
14 like that.
15 Q. Okay. And on your resume on page twelve, it says, 8-97,
16 to 11-97 -- I'll butcher this name, I'm sure -- but Piscataway
17 Police Department --
18 A. Piscataway.
19 Q. Piscataway, New Jersey.
20 A. Oh, yes.
21 A. Sadistic rape of a twenty-one-year-old female.
22 Q. Oh, yes.
23 Q. Okay. And you indicate that your role was forensic
24 analysis of crime scene including wound pattern analysis and
25 criminal profiling consultant, full profile developed, suspect
2 A. Oh, yes.
3 Q. Okay. And then it says, the above case was determined to
4 be related to a series of sadistic rape, homicides of
5 prostitutes in New Jersey and other states. Now, that was your
6 conclusion, right?
7 A. That was not only my conclusion, that was the conclusion
8 of the detective on the case.
9 Q. It says, state law enforcement unwilling to accept this
10 evaluation and no action has been taken.
11 A. That's correct.
12 Q. Okay. So basically, the state law enforcement agencies
13 that are charged with making the decisions disregarded what you
14 -- your input in that case?
15 A. The local police department who had authority over the
16 case did not disregard my suggestions. There were very clear
17 indications that a aerial killer was operating and continues to
18 operate in that area. The issue was that James McCormick, the
19 state profiler, had not been consulted initially on the case.
20 They went directly to me. And he felt insulted so he came and
21 put a stop to the case. That's it.
22 Q. So that's the only -- no -- no criminal prosecution or
23 pursuit, it was just because of petty jealousies over toes
24 being stepped on?
25 A. I don't -- I don't understand Mr. McCormick's reasoning
1 one way or the other and I won't pretend to -- to express that
2 here. I can only speculate.
3 THE COURT: You didn't profile him?
4 THE WITNESS: No, sir, I did not.
5 BY THE WITNESS:
6 A. The law enforcement in that case -- the local P. D. -- was
7 very disappointed in the state police, and they're still very
8 angry with them.
9 Q. All right. Now, if you would, return -- flip over to your
10 report regarding this particular case.
11 A. Excuse me?
12 Q. Your report_ -- if you could refer to it.
13 A. Oh.
14 Q. Kind of start at the top, front page.
15 A. (EXAMINING.)
16 Q. Actually, I'm -- where it says on page three, Examination
18 A. (EXAMINING.) Yes.
19 Q. Okay. And it says, an equivocal forensic examination of
20 all -- and then it lists a number of items -- available crime
21 scene and autopsy photos, crime scene video, investigators'
22 reports, witness statements, family statements, autopsy
23 reports, and numerous other sources. You've indicated earlier
24 that you didn't have all witness statements, right?
25 A. I've indicated that I didn't know that I had them all.
1 don't -- I don't have a comprehensive list that says what
2 exists in this case.
3 Q. All right.
4 A. I know what I got, but I don't know that it's everything.
5 There's no way that I could know that.
6 Q. Okay. And your source for receiving those -- that
7 information was what?
8 A. Excuse me?
9 Q. What was the source that you received that information
11 A. The source was Dan Stidham.
12 Q. And is it some concern to you in being sure that your
13 report reflects objective findings that you're assured that you
14 receive all information relevant to the case?
15 A. All information that I request, yes.
16 Q. Okay. Which would be all witness statements based on your
17 page three there?
18 A. Yes.
19 Q. Okay. And you never checked to see if you, in fact, had
20 received that?
21 A. I went through the -- well, there's absolutely no way for
22 reports were generated or not generated, I
23 mean, unless there is a comprehensive list and I received no
24 such list.
25 Q. Did you request it?
1 A. Yes, I did as a matter of fact.
2 Q. Okay. Did you check to see if you had all of those things
3 on that list?
4 A. I didn't get any list.
5 Q. Okay. Can you explain -- give an explanation why you
6 didn't receive a list of all witnesses that had been
7 interviewed and statements taken?
8 A. Dan said one did not exist.
9 Q. Okay.
10 A. And that he could not be sure if -- if he had all the
11 witness statements and witness -- stuff in the case, so his
12 uncertainty and my uncertainty are compounded and it goes down
13 the line. I do not know -- I can only examine and evaluate
14 what I have in front of me. I do not have the ability to
15 examine or opine on things that are -- that I don't know about.
16 Q. Okay. Well, let's turn to page nine which is your --
17 starts the report regarding the autopsy report on James M.
19 A. (COMPLYING.)
20 Q. The first category there -- or the first subject matter
21 after you describe the victim, in the purpose of doing this
22 report is the time of death estimates. Is that correct?
23 A. Can I take a moment to read that? Which paragraph are you
24 looking at?
25 Q. I'm locking on page nine --
1 A. Yes.
2 Q. -- there's -- there's three paragraphs. It's headed sub-
3 section B, autopsy report of James M. Moore ---
4 A. Yes.
5 Q. -- and it lists what information you took this -- where --
6 the sources for your information, what the purpose of this
7 report is, and then describes generally James Moore, and then
8 it goes into what is called time of death estimates.
9 A. (EXAMINING.) Yes.
10 Q. Okay. And in your time of death estimates you refer to --
11 A. Can -- can I -- I don't mean to interrupt you, and I don't
12 mean to be coy or evasive, but just to clarify. This is not me
13 giving a time of death estimate. This is a subject heading.
14 Do you understand what I mean by the difference between the
16 Q. Well, your -- your report contains certain observations
17 you made --
18 A. Yes.
19 Q. -- about evidence that was --
20 A. Yes.
21 Q. -- introduced either at the trial or autopsy reports --
22 A. That's correct.
23 Q. -- or coroner's report, correct?
24 A. That's correct.
25 Q. And the time of death estimates, you put in here, that
1 this could place the time of death, which can only be given as
2 a range in James Moore, at sometime after daybreak on May sixth
3 of 1993, based on certain findings.
4 A. It could but it could put them other places as well and I
5 -- at the end of the report, that's why I state, you really
6 can't tell. And that was the whole point. Again, the point of
7 this document is to give Dan Stidham insight and investigative
8 direction, not to form firm conclusions about -- one way or the
9 other. It's to point him in a direction. Say, here's what you
10 ought to be doing. Here's what -- here's what information you
11 ought to be looking at.
12 Q. Okay. Well, if I understood your testimony yesterday
13 of the important things that you felt like your job would be in
14 a case like this and why it would be important to consult
15 someone like you, would be so that you could guide them to
16 people who could provide expertise in a particular field,
18 A. Yes, it would be.
19 Q. Okay. But you would agree, based on this report in terms
20 of the time of death, that based on your experience and
21 understanding as to how to ascertain an estimate
22 that in this case, you just couldn't
23 determine it.
24 A. Yes, but I'm not a forensic pathologist so it would be
25 more comfortable to have that coming from a forensic
2 Q. Okay. Are you here saying that it would be -- that a
3 defense attorney to do what was proper would need to provide
4 certain relevant information to a forensic pathologist to get
5 him to give an opinion as to time of death and see if what the
6 -- what the medical examiner said was accurate?
7 A. Could you repeat that question, please?
8 Q. Okay.
9 A. It kind of went around a little bit.
10 Q. I can shorten it up a lot. Do you think the defense
11 attorney should have consulted a forensic pathologist?
12 A. Yes, I do.
13 Q. Okay. Were you aware he did?
14 A. I became aware after the involvement in the first hearing
15 that they had sent a small body of material to a forensic
16 pathologist who billed them for a couple of hours, and they
17 just asked him, can you give us the time of death, and he said,
18 no. But that's not the only thing I would have asked them to
19 have a forensic pathologist review. There's a lot more in this
20 case than the time of death issues.
21 Q. Okay. Well, did you -- were you aware that they had
22 specifically asked him if Doctor Peretti's estimate in terms of
23 his testimony regarding time of death, if that was plausible or
24 if he agreed with that, or if he could buttress that statement?
25 A. I'm not aware of what his opinion was on that.
1 Q. Okay. Were you aware that his opinion was, in fact, that
2 the time of death occurred sometime the evening before,
3 somewhere around 8:30?
4 MR. MALLETT: Excuse me, your Honor, objection.
5 I don't believe that's the state of the record. I
6 think it misstates the record. I'm willing to state
7 what I believe the record reflects, and for Mr. Davis
8 to suggest to the witness that they have a definitive
9 opinion about time of death from the Atlanta
10 pathologist falling within a specific range, is to
11 misstate the record and it misleads the witness.
12 It is unfair and I object to it.
13 MR. DAVIS: I'll -- I'll withdraw the question,
14 your Honor.
15 THE COURT: All right.
16 BY MR. DAVIS:
17 Q. So basically you're saying on this report, based on your
18 experience, you couldn't ascertain what a -- time of death
19 based on the factors you had available?
20 A. Actually, the -- the report states that -- that the
21 information given in Doctor Peretti's report is equivocal. It
22 not suggest a particular time of death given what Doctor
23 Peretti referenced. So, yes -- in short, yes.
24 Q. When you said a time -- at the above -- as the above
25 suggests, a time of death of any kind is very difficult to
1 estimate giving the differences in metabolic processes between
2 individuals, giving varying individual anatomy and giving
3 varying environmental factors, the presentation of stages of
4 rigor mortis and/or livor muftis used to make such estimates
5 are not absolute and should be treated as guidelines, not hard
6 and fast biological principles to be blanketedly generalized
7 from case to case.
8 A. That's correct.
9 Q. Okay. And so in -- is it fair to say that basically from
10 your view of the evidence on the issue of time of death, from
11 your area of expertise, it was a toss-up? There wasn't
12 sufficient information to give a specific estimate as to time
13 of death.
14 A. Yes, but I hesitate to offer my opinion as a conclusive
15 one. I don't want to put myself forward as a forensic
17 Q. Okay. So --
18 A. So --- so based on my experience, yes.
19 Q. Okay.
20 A. But mine is not experience as a forensic pathologist.
21 Q. Okay. So basically what you're telling us is, is that the
22 opinions you rendered in regard to time of death in this report
23 are opinions of someone who is less than qualified to render
24 opinions in such areas?
25 A. Yes, with an explanation. The --
1 MR. MALLETT: I'm -- I'm sorry. I think what's
2 confusing to the witness is that we don't know which
3 opinions, if any, are relating to it. We would ask
4 that Mr. Davis identify the opinion and then ask him
5 if that's his opinion because --
6 THE COURT: Well, yeah, we can ask him to do
8 MR. MALLETT: --- in his opinions, I get lost.
9 THE COURT: I understood the question to be:
10 With regard to the witness's opinion stated in his
11 report. And --
12 MR. MALLETT: I think he stated several opinions
13 in his report. Could he identify what opinion he's
14 talking about.
15 MR. DAVIS: Regarding the time of death on James
16 M. Moore.
17 MR. MALLETT: What -- what opinion is expressed
18 about the time of death regarding James M. Moore? I
19 thought his testimony was he didn't express any
20 opinion about the time of death, that the evidence
21 was incomplete.
22 THE COURT: it's vague and amorphous.
23 MR. MALLETT: Vague and amorphous, I guess.
24 THE COURT: Okay.
25 MR. MALLETT: Vague and amorphous. I think that
1 was his testimony. And so then to suggest that he
2 stated an opinion that there was a time of death is
3 unfair and misleading because that's not the
4 witness's testimony.
5 THE COURT: Go ahead. Restate your question. I
6 mean, I --
7 THE WITNESS: I'm sorry. I don't mean to be
9 BY MR. DAVIS:
10 Q. So you didn't give an opinion as to time of death in your
12 A. I gave an opinion as to what Doctor Peretti had presented
13 in his report.
14 Q. And did you speculate as to whether that opinion was
15 accurate, or inaccurate, or was subject to question?
16 A. Yes, I did.
17 Q. Okay. And what -- and -- and you indicated that it was?
18 A. Yes, I did.
19 Q. And your suggestion -- had you been involved in this case
20 at that time -- would be for the attorney to consult a forensic
22 A. Yes, it would.
23 Q. And specifically in asking in regard to time of death to
24 review these -- this information contained in Doctor Peretti's
25 report and the coroner's report, right?
1 A. That among many other things, yes.
2 Q. Okay. And is it -- that your knowledge was, in fact,
3 Doctor Peretti's report, the coroner's report, autopsy photos,
4 and other material provided to Doctor Kris Sperry for the exact
6 A. I don't have -- I don't have a firm knowledge of what
7 Doctor Kris Sperry received, no.
8 Q. Okay. So if, in fact, that information was given to them
9 you would be satisfied that that would comply with what you
10 would have suggested had you been on this case at that time?
11 A. Absolutely not.
12 Q. Okay.
13 THE COURT: What else would you have
14 recommended he do?
15 THE WITNESS: well, sir, as I suggest, one of
16 the things that needed to be done in this case by a
17 qualified forensic pathologist is a full
18 comprehensive analysis of the wounds in this case
19 which were not elucidated at all. Uh -- excuse me --
20 not elucidated to -- to my satisfaction by Doctor
21 Peretti or anyone else involved in the case. I felt
22 that there were a lot of wounds and a lot of injuries
23 that just went unexplained, and I would liked to have
24 had a forensic pathologist's insights on individual
25 wounds and individual areas of wounds on these -- on
1 these children. That raised a lot of questions to
2 me, so -- and that would take a great deal more than
3 the two or three hours that Doctor Sperry spent.
4 It would also require an extensive review of
5 victim history which I understand Doctor Sperry did
6 not receive.
7 BY MR. DAVIS:
8 Q. Victim history in determining time of death?
9 A. I -- as I already stated, time of death is only one issue
10 among many.
11 Q. Okay. But -- but the things -- what I'm trying to focus
12 on is yesterday you said that the areas that you were asked to
13 focus on this case were to determine what could have or should
14 have been done by defense attorneys --
15 A. That's correct.
16 Q. -- but wasn't done.
17 A. That's correct.
18 Q. Or may not have been done.
19 A. That is correct.
20 Q. Okay. And one of the things you told us yesterday was to
21 consult a forensic pathologist regarding a second opinion as to
22 time of death.
23 A. One among many things that a forensic pathologist should
24 be doing, yes.
25 Q. Okay. And what I'm asking you is: In this case, assuming
1 hypothetically that they did consult Doctor Kris Sperry and
2 they did provide him with autopsy reports, they did provide him
3 with the coroner's reports, they did provide him with autopsy
4 photographs, and specifically asked him, can you review these
5 to determine -- give us an estimate, or to provide us
6 information regarding your estimate as to time of death, would
7 that have been what you would have suggested that they do?
8 A. Again, you asked this question already once and my answer
9 was, no, it would not be, because there's more at issue and
10 more at stake here for the forensic pathologist than just the
11 time of death, so, no.
12 Q. So you don't think if a forensic pathologist was asked to
13 review that and he needed additional information in order to
14 render or provide an opinion, that a forensic pathologist isn't
15 in a position to request that additional information?
16 A. I can't speculate as to what Doctor Sperry felt he was in
17 a position to request or not request. That's -- you'll have
18 to ask him that.
19 Q. Okay. So your standard is that their efforts to consult a
20 forensic pathologist and to provide that information fell short
21 of what was necessary.
22 A. In my opinion, yes.
23 Q. Okay. And that's based on your degree in forensic
24 sciences and your fifteen months experience at that time?
25 A. At that time, yes.
1 Q. Wound pattern analysis is the next section.
2 A. Yes, sir.
3 THE COURT: Did Mr. Mallett go into any of
5 MR. MALLETT: I don't believe I intended to
6 qualify him as an expert or offer his opinions on
7 those subjects.
8 THE COURT: Well, he's himself said he's not an
9 expert in these fields. All he's doing is making
11 MR. MALLETT: We thought that the real gist of
12 his testimony to assist the Court in performing its
13 statutory duty is for him to say that he gives
14 investigative direction as he did to Dan Stidham, and
15 he believes that the defense attorney should have
16 consulted with a forensic pathologist. He may have
17 more to say in that line. But as to his medico --
18 medical opinions, we did not seek to accredit him nor
19 ask his opinions.
20 THE COURT: I think what Mr. Davis is trying to
21 point out to the Court that while he professes to
22 have no real expertise in the field of forensics or
23 -- that he takes it upon himself to criticize the
24 results of forensic pathologists, and that's what
25 he's trying to point out to the Court, and I think
1 he's gone a good enough job of that that we could
2 probably move on to something else.
3 THE WITNESS: Your Honor, may I make -- may I
5 MR. MALLETT: I think that --
6 THE WITNESS: Yes.
7 MR. MALLETT: --- the way we do this is that Mr.
8 Davis now is asking questions.
9 THE COURT: If you want to go into the report, I
10 mean, I suppose you can, but I don't see any real
11 need to do so. But go ahead if you want to.
12 BY MR. DAVIS:
13 Q. You refer in the wound pattern analysis -- you talk about
14 the ligatures and the injuries caused by the ligatures,
16 A. Now, where are you referring to?
17 Q. well, under -- you do that in regard to each one of the
18 victims, right?
19 A. Yes.
20 Q. Okay. And basically differentiate between those who
21 sustained deep bruising injuries to the wrists and ankles with
22 those that had some injuries but not as deep and severe. Is
23 that fair?
24 A. Yes, that's a fair statement.
25 Q. Okay. And, in fact, on two of the victims -- I believe,
1 the Branch boy and the Byers -- you found -- you indicated in
2 your report that the injuries to the wrists and ankles were
3 deep -- tha -- the ligatures had left deep injuries which were
4 indicative that the boys were still alive or conscious at some
5 point during the time the ligatures were applied.
6 A. Yes.
7 Q. Okay. And with Moore it's different. The ligatures were
8 not -- did not leave embedded marks.
9 A. It appeared to me in the information I was given, yes.
10 Q. Okay. And I'm referring now to page eleven wherein the
11 last paragraph of your report it says -
12 A. I'm sorry. Where are you?
13 Q. The last paragraph of the section on the -- the wound
14 pattern analysis on page eleven, third paragraph down from the
16 A. (EXAMINING.) Okay.
17 Q. The second full paragraph. And you say, together these
18 facts, the -- about the ligatures and about the placing the
19 bodies in the water -- suggest that the purpose of the ligature
20 in this victim's case is to keep the victim from moving around
21 or being able to swim should he regain consciousness once he'd
22 been thrown to the water. It is this examiner's opinion that
23 the assailant in this case demonstrated all manner of awareness
24 and cognizance at this location. The assailant knew that this
25 victim was not dead when they threw the victim into the water
1 and that the ligatures would assist to complete the act of
2 deliberate homicide should the victim become conscious.
3 A. That is my -- my opinion, yes.
4 Q. How do you get to that opinion?
5 A. Again, given what we just went through, you skipped right
6 to the last paragraph, so I got that opinion by basing it on
7 all the facts that I suggested in the -- in the page leading up
8 to it.
9 Q. Well, wasn't that the same opinion that you gave in regard
10 to Branch and Byers -- basically at the end -- that you said
11 that the ligatures were placed for that purpose to show that --
12 and it showed that the perpetrator had awareness and
13 consciousness that they might come to and that this would
14 prevent them from swimming?
15 A. That's my opinion, yes.
16 Q. Okay. Well, how -- how does someone with your field of
17 expertise reach that conclusion and not just reach the
18 conclusion that they were tied up for purposes of committing
19 the crime that were committed upon them?
20 A. Because in my experience, based on other cases I've looked
21 my training and my education, that is not very
22 often the case. In this -- in this case, we also have
23 defensive injuries which means that while they were being
24 injured, they were fighting back. So --
25 Q. But your testimony -- your -- your report on Moore was
1 that he was rendered unconscious nearly immediately -- based or
2 your findings.
3 A. Yes.
4 Q. Okay. And then how do you jump from that to say that
5 these ligatures were placed on three boys that -- that you
6 start saying that the perpetrator was cognizant and aware and
7 that he did this to insure that they would drown in case they
8 came to -- how do you get to that point? I mean, what
9 scientific basis or expertise qualifies you to jump in there
10 and make those conclusions?
11 A. Just my training and experience. It's not --
12 based on scientific -- again, this is not based on scientific
13 reasoning. This is based on my experience and my training and,
14 again, it's offered as an investigative insight or direction
15 for the attorneys to go. It's not offered as a conclusive,
16 hard, one hundred percent opinion. It is one possibility based
17 on my experience.
18 Q. It's what might have been?
19 A. It's what might have been. That's correct.
20 Q. Okay. And the "might" in there in terms of how likely it
22 was to have been in that way is premised upon your degree of
24 A. My education and my training and my expertise, yes, my
25 Q. But then in the next section is on sexual assault and rape
2 A. Yes.
3 Q. Okay, If you'll look at the second paragraph and I think
5 A. (EXAMINING.) Oh, wait a minute, geez. Yeah, I see what
6 you're saying.
7 Q. Okay. See in that second paragraph where you're kindly
8 ripping into -- that's a bad choice of words -- you're --
9 you're being some critical of Mr. Hale, the coroner, for saying
10 in his coroner's report that the victims may have been sexually
12 A. Yes.
13 Q. Correct?
14 A. Yes.
15 Q. And, in fact -- and what you say in there was, what may
16 have occurred is not at issue. Isn't that what you say in your
18 A. For Mr. Hale, yes.
19 Q. Okay. What I -- the question I have for you is: When you
20 say in your report in criticism of Mr. Hale's report that what
21 may have occurred is not in issue, doesn't your forty page
22 report contain reference after reference of what possibly could
23 have been, what might have been, what may have been, what might
24 have occurred?
25 A. Yes, sir, it does.
1 Q. Okay. And is there a difference in terms of what benefit
2 that is to a defense attorney in what may or possibly could
3 have occurred versus what Mr. Hale put in his report?
4 A. Yes, with an explanation.
5 Q. Okay.
8 A. My explanation is that Mr. Hale was a deputized coroner
7 and I am not. I was not acting in an official capacity for the
8 state to render opinions that would be used at trial.
9 Q. Okay. But, I mean, when he says, "may," that's an
10 equivocal finding, correct?
11 A. When he says, "may?"
12 Q. Right.
13 A. If he says, "may," yes, I would assume that's an equivocal
15 Q. Just like yours?
16 A. But I'm not acting as a coroner in the case. Yes, it is
17 just like mine.
18 Q. You're advising defense attorneys on how they should
19 prepare their case?
20 A. I'm advising defense attorneys as to what potential
21 evidence exists and what direction they can - they can
22 potentially take in terms of finding out more about what
23 happened and establishing the facts of the case.
24 Q. You also refer in that section, and you do in regards to
25 other of the victims, to a lack of mosquito bites --
1 M-E-S-Q-U-I-T-O -- we have mosquitoes around here -- a lack of
2 mosquito bites on the body and that -- that the lack of
3 mosquito bites is significant to you.
4 A. Yes, it suggested to me the need for them to seek out a
5 forensic entomologist.
6 Q. Okay. And are you aware -- can you tell me what expertise
7 that -- or literature or -- that you consulted to determine
8 that lack of mosquito bites can somehow -- that a mosquito bit
9 that occurs one afternoon will manifest itself the next day?
10 A. I did not refer to a text or a journal article on that
11 specific subject. That's why I suggested that they refer to a
12 forensic entomologist, because I am not one -- to answer that
13 specific question and other questions relating to the
14 entomological evidence in this case.
15 Q. Okay. And part of that would involve the physiological
16 reaction of the body to an insect bite, correct?
17 A. You know, I'm -- I'm not willing to -- to opine on that
18 because I am not an forensic entomologist.
19 Q. Okay.
20 THE COURT: Well, you've given an opinion that
21 one was needed. If they were not bites, what could
22 that tell you?
23 THE WITNESS: Oh --
24 THE COURT: What evidence was there that would
25 suggest that a bug man needed to be consulted is what
1 I would like to know?
2 THE WITNESS: I apologize. I didn't understand
3 the question.
4 BY THE WITNESS:
5 A. Could you re -- restate the question?
6 Q. Okay. Was your suggestion -- your -- your -- you
7 indicated in this report that the significance of no mosquito
8 bites may have been that it occurred somewhere else, or they
9 weren't out there for any prolonged period of time?
10 A. Right. All of the people that were alive who were
11 searching the -- the crime scene, there were a number of
12 reports of people who were out there searching that evening for
13 bodies. Many of them reported that they had bitten many,
14 multiple times, and that it was so thick out there they were
15 breathing them in and out.
16 Now, if the victims were not -- showed no evidence of
17 mosquito bites, that could suggest -- that might suggest that
18 they weren't out there while they were breathing heavily and
19 alive or -- or conscious because I believe mosquitoes are
20 attracted by the CO2.
21 Q. Okay. So --
22 A. So I would want them to consult a -- I would want the
23 defense to consult a forensic entomologist to resolve that
25 Q. Okay. So in terms of your expertise, you don't know if
1 the mosquito bites can be inflicted after death or not?
2 A. No, and that's, again, why I would have one consult a
3 forensic entomologist.
4 Q. And you don't know what the effect of death immediately
5 after a mosquito bite might have on its physiolog -- the
6 body's physiological change?
7 A. No, I do not.
8 Q. Okay. So when you threw that out there, that was just the
9 area that could be looked into?
10 A. That's an area that I suggested that they look into. It
11 was something that I felt needed to be analyzed and reviewed by
12 a qualified forensic entomologist.
13 Q. And you don't know if that -- what the effect of that
14 would be whether there would be something fruitful there or
16 A. Again, I'm not a forensic entomologist.
17 Q. Okay.
18 A. It's out of my --
19 Q. So that's just a thought you threw out?
20 A. It's one of my suggestions, yes.
21 Q. Is that anywhere in literature that mosquito bites or
22 lack of insect bites may be important in terms of an
23 investigative tool?
24 A. Again, I'm not aware of a specific literature --
25 reference, no, but then that's why I suggested that they
1 contact forensic entomologist to discuss that issue.
2 Q. Okay.
3 THE COURT: Are you gonna be a whole lot
5 MR. DAVIS: Yes, your Honor.
6 THE COURT: Well, we're gonna take a recess
8 All right, court will be in recess for ten
1l (RETURN TO OPEN COURT.)
12 BY MR. DAVIS:
13 Q. Mr. Turvey, let me refer you now over to page fourteen of
14 your report and it's the section under wound pattern analysis
15 on this -- and this refers to the victim, Steve Branch.
16 A. (EXAMINING.)
17 Q. Are you there?
18 A. Yes, I am.
19 Q. Okay. Now, if I understood your testimony yesterday, when
20 you first received the material regarding the autopsy photos,
21 did you indicate that the pictures of Steve Branch were some of
22 the very first ones you examined?
23 A. Yes, I did.
24 Q. Okay. And if I understand, you characterized --
25 understood your testimony, as soon as you looked at the picture
1 of the face of Steve Branch, based on your experience and
2 knowledge and training, as soon as you looked at it, the
3 thought bite mark jumped in your mind?
4 A. Bite mark, yes, with an explanation.
5 Q. Okay.
6 A. My explanation being that I am not qualified to determine
7 the difference between a human bite mark and an animal bite
8 mark which is why I immediately said, okay, hopefully, a
9 forensic odontologist had looked at these.
10 Q. Which one were you looking at?
11 A. Which one?
12 Q. Yeah.
13 A. I was looking at the entire area.
14 Q. Okay.
15 A. There wasn't a particular one. There -- there were
16 several areas that could have had -- that could have been
17 injuries that were the result of bite marks.
18 Q. Okay. And, in fact, you found areas that you thought were
19 bite marks on other victims, too, didn't you -- or at least
21 A. Suspected, but there's no way to tell for sure.
22 Q. Okay. And you put in your report that you were concerned
23 that this was evidence that the medical examiner may have just
24 overlooked, right?
25 A. It's possible -- that's one possibility. I -- I don't
2 Q. Okay. Were you aware of any efforts performed by the
3 medical examiner's office to specifically examine all three of
4 the bodies for the purpose of ascertaining if there were any--
5 any injuries consistent with bite marks?
6 A. I -- I have no report that says to me that they -- whoa.
7 I apologize. Let me back up for a second.
8 There is a mention of the tooth impressions on the victims
9 -- of the inside of the victims' mouths --
10 Q. Right.
11 A. -- that were the result of their own lips being pressed
12 against their teeth. However, outside of that, I have no
13 knowledge of any -- any efforts made by the medical examiner in
14 this case to analyze the bodies for foreign bite marks.
15 Q. Okay. And would you expect that if you immediately
16 concluded -- just upon your first perusal of these photographs
17 -- that you immediately -- it came to your mind the possibility
18 of bite marks, would you expect that a forensic pathologist
19 would have the same reaction?
20 A. I'm sorry. You started changing the question there in the
21 middle. Could you ask that again? I didn't --
22 Q. Okay. When you looked at the photographs of Steve Branch,
23 immediately the lights go off, you say in your head that --
24 that we may have bite marks here.
25 A. Yes.
1 Q. Okay. And would you also expect a forensic pathologist
2 looking at those same photographs to have the same reaction?
3 A. I would hope but with an explanation. Can I -- can I
5 Q. Sure.
6 A. My -- my experience is that sometimes they see 'em and
7 sometimes they don't.
8 Q. Okay. But one of the things you would want to do
9 initially is to send those photographs to a forensic
10 pathologist and you could -- you could expect that a
11 pathologist would tell you if he thought there were bite marks
12 there, right?
13 A. I would hope so.
14 Q. Okay. And so what a defense attorney in that position --
15 if he has these autopsy photos -- he sends 'em to a forensic
16 pathologist and says, if you see anything here that you think
17 is of importance, let me know.
18 A. I'm not aware of that happening in this case, but, yes --
20 Q. Okay. That would be a thing to do, right?
21 A. Sure.
22 Q. Okay. And you would expect if bite marks were this
23 obvious that they jump out at you on the first perusal of the
24 photographs that you could get -- you could rely on getting
25 some input back from the pathologist regarding that area?
1 A. I'm not sure I understand the question.
2 Q. Okay. You would expect a pathologist to give you some
3 guidance if you submitted those type of materials to him?
4 A. It depends on what you ask the pathologist to do and how
5 much money you paid him, I suppose. If you only asked him one
6 question and that's all you asked, I wouldn't expect him to
7 give you anything beyond that question necessarily. It depends
8 on the forensic pathologist and what was asked of him.
9 Q. Well, let me -- I mean, you tell me. I mean, did -- would
10 you think that a serious, reputable forensic pathologist would
11 review autopsy photos and if he saw something that was
12 obviously what he considered to be a bite mark, that he
13 wouldn't bring that atten -- to the attention of somebody who
14 requested him to review this for purpose of assisting them in
15 preparation for trial?
16 MR. MALLETT: In the interest of time, under
17 Rule 403, we would object to this line of
18 questioning. This being beyond the stated skill of
19 the witness and the purpose for which he was called
20 to testify. I think under 403 the Court has
21 permission to consider --
22 THE COURT: Relevancy?
23 MR. MALLETT: -- the relevancy and -- and
24 efficient use of the Court's time.
25 THE COURT: Well, avoid repetitious and
1 unnecessary questions.
2 But I am interested -- you made a comment about
3 it depends upon how much you pay him. Do you think a
4 forensic pathologist's testimony is predicated upon
5 how much he's paid?
6 THE WITNESS: I'm --- I'm sorry, your Honor, I
7 did not mean to imply that, no.
8 THE COURT: Well, it certainly sounded like it.
9 THE WITNESS: Yeah. I apologize. What. I meant
10 to say -- just to clarify -- is that - what I meant
11 to imply that it depends if you say, I'm gonna
12 pay, you know, pay for a couple of hours here. Can
13 you give us a ques -- give us an answer on a
14 question? You know, on this specific question,
15 that's what he's gonna do, and he may not go outside
16 -- but again, I'm not a forensic pathologist so I
17 don't know what's going through the mind of a
18 particular forensic pathologist. You'd have to ask
19 that person.
20 BY MR. DAVIS:
21 Q. But the -- one of the first steps you would take if you
22 suspected bite marks is to send it to somebody like a forensic
23 pathologist to determine do they concur with your opinion?
24 A. No. No, that would not be my first step.
25 Q. You would -- you would go directly to the odontologist?
1 A. Yes, I would.
2 Q. Okay. And not -- not send the photograph for examination
3 or perusal by -- by a forensic pathologist?
4 A. It depends on the forensic pathologist. If the forensic
5 pathologist was also a board certified forensic odontologist,
6 then I'd be happy to send them to him.
7 THE COURT: Where do you find a forensic
8 certified odontologist?
9 THE WITNESS: You go to the American Board of
10 Forensic Odontology.
11 THE COURT: I didn't know one existed.
12 BY MR. DAVIS:
13 Q. Now, are you familiar with Doctor Sturner that's with the
14 Arkansas -- that is a medical examiner for the State of
15 Arkansas -- Chief Medical Examiner?
16 A. I am familiar with his work, yes.
17 Q. Okay. And, in fact, in our phone conversation you said
18 that he had a very high reputation in terms of the quality of
19 his work and the skill and expertise in which he performs his
21 A. As a forensic pathologist, absolutely. He's very well
22 regarded in the community.
23 Q. Now, you indicated when you viewed the pictures of Steve
24 Branch, that you noted more than one area that you thought were
25 bite marks.
1 A. Yes.
2 Q. Okay. Did that encover -- did that cover more than the
4 A. Not to my recollection, no.
5 Q. Okay.
6 A. Just the face.
7 Q. Did you notice what you believed to be bite marks on other
8 areas of the bodies of other victims?
9 A. Yes, I did.
10 Q. Okay. And did that enter into some of the opinions you
11 formulated that there were bite marks on multiple victims?
12 A. Potentially bite marks, yes.
13 Q. Okay. So if that turns out not to be accurate in terms of
14 any testimony presented, then that would have an effect on some
15 of the ultimate conclusions and opinions that you drew?
16 A. If that turns not to be a fact in that, yes, that would
17 have an effect.
18 Q. Okay. Now, I'm -- I'm referring to page sixteen of the
19 report regarding the sexual assault and rape indicators
20 regarding Steve Branch.
21 A. (EXAMINING) Yes.
22 Q. Okay. And is it fair to say that in your report that you
23 concluded that the injuries to the penis of Steve Branch were
24 the result of self-masturbation or masturbation play.
25 A. Those are two possibilities, yes.
1 Q. Okay.
2 A. Very strong possibilities.
3 Q. And you state in the report, it is the experience of this
4 examiner that this particular type of abrasion injury is
5 commonly seen as the result of repeated manual masturbation
6 without sufficient lubrication.
7 A. That's correct.
8 Q. What is that experience that you're basing that testimony
10 A. Photographs of other injuries of other victims, other
11 cases that I've -- I've studied or seen.
12 Q. And is there literature that you refer to that would show
13 you injuries similar to this as a result of self-masturbation?
14 A. Certainly.
15 THE COURT: To seven- and eight-year-olds?
16 THE WITNESS: Yes.
17 THE COURT: Okay.
18 BY MR. DAVIS:
19 Q. And would there also be small lacerations to the head of
20 the penis in such injuries?
21 A. That's a possibility, yes.
22 Q. Okay. And you concluded that that is a possibility that
23 it was self-masturbation?
24 A. It's a possibility, yes.
25 Q. Okay. And it's a possibility since one of the other
1 victims had an attack or physical injury to the genital area,
2 that this was the result of injuries inflicted by -- by one of
3 the perpetrators, correct?
4 A. That is a possibility, yes.
5 Q. Okay. And so it's based on your experience and expertise
6 that you determined that it was more possible that this was
8 A. Yes, with an explanation. My explanation is that this
9 injury suggests to me something, and as I am not an expert in
10 child sexual assault, I'm not an expert in child abuse. I
11 recommended that they consult an expert in that area.
12 Q. Okay.
13 A. And so this, again, was a -- as ruled -- I just refer to
14 it as a red flag for me -- something that needed to be
15 investigated further.
16 Q. Okay. But when you say that it suggested something to
17 you, it -- in your report you say, it suggested that this was a
18 highly sexualized eight-year-old.
19 A. If that's the case. If -- if this is self-masturbation
20 you have a highly sexualized -- sexualized child, yes.
21 Q. Okay. And if it's not self-masturbation, then it's
22 evidence of injuries caused by the perpetrator7
23 A. That's correct.
24 Q. Okay. And so your latter premise that it's -- it's a
25 highly sexualized eight-year-old, it's premised upon your
1 conclusion being right that this was self-masturbation?
2 A. Absolutely, which is why we would require the assistance
3 of an expert in child sexual abuse and sexual abuse trauma.
4 Q. And your opinion, as you said, was a poss -- this was a
6 A. That's correct.
7 Q. Now -- now, I'm referring you to the notes or parts of
8 your report regarding Chris Byers.
9 A. Which page?
10 Q. Let me see -- I believe it's on page nineteen.
11 A. (EXAMINING.)
12 Q. You indicated that in one of the pictures that you saw a
13 clear impression of the knife that you felt like was evidence
14 that had been overlooked?
15 A. I don't know that it was overlooked. But that's -- that's
16 possible that it was overlooked, yes.
17 Q. Okay. And where -- where was this injury -- I believe you
18 describe it as to the right --
19 A. Anatomically, it's on the right-hand side of the excision
20 wound where the genitals of a -- where the genitals would be if
21 they had not been removed. So if you're looking at the
22 picture, it's on the left -- top left-hand corner of that
23 picture. It's a little square area, and it's really hard to
24 see in this bad photocopy.
25 Q. And are you saying that's the hilt of the knife?
1 A. Potentially the hilt of a knife, yes, because it would
2 make an impression like that when it was plunged down.
3 Q. Okay. And so the knife would have had to have been
4 plunged -- there would be an associated wound the length of
5 the knife at least from the blade -- tip of the blade to the
6 hilt, correct?
7 A. I would assume so if that were the resultant wound.
8 Again, this is why I would want a forensic pathologist to look
9 at this and make an opinion because it's another red flag to
11 A. Okay. So this is just something you'd suggest somebody
12 look at?
13 A. Absolutely. Again, this is one of the things that I would
14 have the forensic pathologist look at.
15 Q. Okay. And you would want to know if there's an associated
16 wound and the depth of that wound associated with that injury
17 to get some idea as to the length of the knife, right?
18 A. Yes, I would.
19 Q. Okay. Do you recall doing any examination of the autopsy
20 report to determine any wounds -- any entry wounds and the
21 depth of those wounds?
22 A. Again, that's what I am -- this is a red
23 flag to me suggesting the need for an expert in forensic
24 pathology so that's what I would hope that they would do. And
25 this report is designed to suggest investigative direction.
1 Q. For that to be the hilt of the knife, you would expect an
2 associated wound with it to be some inches long, correct?
3 A. In -- general, yes, but I'm -- again, I'm not a
4 forensic pathologist, and that's why I would want a forensic
5 pathologist to look at this wound so that he would be able to
6 make a more firm opinion.
7 Q. Okay. How do you see that -- if you'd been involved in
8 this case, or if you'd been providing advice for Mr. Price and
9 Mr. Davidson, how do you see that as affecting -- what advice
10 would you give them regarding that injury?
11 A. I would advise, again -- I believe I've answered this
12 question like twice now -- but I would advise that they went to
13 a forensic pathologist who was qualified to look at this injury
14 and make a determination as to its meaning. This, again, is a
15 red flag to me suggesting the need for somebody who's trained
16 in wound pattern analysis like a forensic pathologist.
17 Q. So you would suggest they consult a forensic pathologist?
18 A. Yes.
19 Q. Okay. Now, on page twenty of your report, you show some
20 pictures of lacerations to the buttocks area of Chris Byers?
21 A. (EXAMINING.) That's correct.
22 Q. Okay. And you indicate in there - and it's on the first
23 full paragraph, the last sentence -- Doctor Peretti does not
24 venture to explain which of those three sets of injuries are
25 the result of the spanking delivered by Mark Byers.
1 A. I did see a report from Doctor Peretti on that issue,
3 Q. Okay. Did you see any reports indicating that he had been
4 injured from a spanking by Mark Byers?
5 A. In the missing persons report filed by -- I believe --
6 filed by John Mark Byers -- and I don't have the document in
7 front of me -- I believe that's where I first read that is that
8 John Mark Byers explained that he -- to the law --- to law
9 enforcement and the search party--he said, when you find my
10 boy he's gonna have these marks on him and that's because I
11 spanked him.
12 Q. He's gonna have these marks on him?
13 A. That's -- I believe -- something along those lines. I'm
14 paraphrasing. This is not a quote. I don't have the document
15 in front of me.
16 Q. What you quoted in your report, it says, Mark Byers gave
17 Chris two or three licks described as a spanking with his belt
18 in front of Melissa Byers shortly before his ---- his
20 A. That's correct. His terminology in quotes, is two or
21 three licks. That's correct.
22 Q. Okay. Okay. And so you're pres -- the first presumption
23 you're making is that those caused injury.
24 A. I'm not making that presumption at all.
25 Q. Okay. Well, when you say that -- when you talk about
1 Doctor Peretti does not venture to explain which of these three
2 sets of injuries are the result of a spanking, that indicates
4 A. He doesn't.
5 Q. -- that you're presuming there was injury resulting from
6 the spanking.
7 A. Well, he doesn't go either way.
8 Q. Okay.
9 A. Doctor Peretti -- so the question to be had is one, given
10 the nature of those circumstances whether or not there would be
11 injury; and, two, if that's the case, well, which set of
12 injuries on the -- on the victim would be most consistent with
13 those types of injuries. And that is, again, yet another red
14 flag to have a forensic pathologist to look at this set of
15 injuries to this victim.
16 Q. Okay. So you didn't know whether there was injury caused
17 by this -- well, you didn't know whether the spanking occurred
18 or not. That's based on a statement.
19 A. Based on a statement made by a witness, right.
20 Q. Number two, you didn't know if that spanking caused any
22 A. No, I did not.
23 Q. Okay. Number three, you didn't know what type of injury
24 if that spanking caused any may have been incur -- incurred by
1 A. Exactly. That's correct.
2 Q. Okay. And later on in your report, don't you reflect that
3 due -- these lacerations are most consistent with spanking
4 type injuries as a result of those lacerations it would be --
5 it would not be expected that this boy could be riding on a
6 bicycle without extreme pain.
7 A. Yes, with an explanation.
8 Q. Well, the question I have is: You -- you -- the
9 presumptions you make to get to that point, what is the
10 validity of an opinion given to an attorney that this boy
11 couldn't ride without extreme pain as a result of these
12 injuries from the whipping when you don't -- you're just
13 guessing as to whether there were any injuries from the
14 whipping at all --
15 A. I agree.
16 Q. -- whether they occurred?
17 A. I agree with you. There is no -- that's why I suggested
18 that they consult a forensic pathologist to take a look at
19 these injuries. So if these injuries are indicative of that
20 behavior, then we'11 need a forensic pathologist to take a
21 look at them and make a firm conclusion. That is what I was
22 doing -- to suggest what line of reasoning may be the result
23 of this particular wound pattern, and I agree with you, it
24 needs to be -- it needed to be looked at by a forensic
1 Q. With the myriad of injuries that were on this individual
2 from head to toe on -- on Chris Byers, in your expertise and
3 experience, were they gonna be able to differentiate what --
4 what injuries were caused from one time to the next?
5 A. From one time to the next?
6 Q. From -- from 5:30 that afternoon until 6:30 that
7 afternoon, were they gonna be able to differentiate what or
8 who caused those injuries?
9 A. I don't know. You'd have to ask the forensic pathologist.
10 I'm, not -- I'm not a forensic pathologist, and I didn't review
11 them as a forensic pathologist, and I don't know what they
12 could tell based on these injuries, so you'd have to ask them.
13 Q. Okay. So you'd want to send those pictures to a forensic
15 A. Yeah.
16 Q. -- and let them give you an opinion?
17 A. Yes, I would.
18 Q. Okay. And you don't have any -- you -- you didn't
19 disagree with Doctor Peretti in terms of the fact that two of
20 the boys evidenced drowning and one didn't?
21 A. No, I did not.
22 Q. Okay. Now, I'm gonna flip over to page thirty which is
23 your crime scene characteristics.
24 A. (EXAMINING.) That's correct.
25 Q. Okay. And yesterday you said one of the important
1 findings was that there were -- your opinion and one thing you
2 would have advised an attorney -- was that there was a primary
3 murder scene and that this was a disposal site basically on
4 where the boys were found?
5 A. I said a primary crime scene. I am not saying primary
6 murder scene.
7 Q. Okay. Primary crime scene. Okay, how does that differ?
8 A. One place -- a primary crime scene is the location where
9 the majority of the interaction between the victim and offender
10 took place.
11 Q. Okay. Do you have an opinion as to whether that -- that
12 is one and the same with the murder scene?
13 A. Well, in the case where the two boys drowned they were
14 killed -- obviously, they died at the crime -- they died at
15 the disposal site.
16 Q. Okay. Now, your determination -- the primary point that
17 you said in determining that this was merely a disposal site
18 and not --
19 A. A primary scene.
20 Q. -- primary scene --
21 A. Um-hum.
22 Q. -- was the lack of blood.
23 A. That's one of the issues, yes.
24 Q. Okay. Were you aware as to whether that issue was -- was
25 delved into at the trial?
1 A. I believe it was.
2 Q. Okay. In other words, what you could have done is to
3 alert the defense attorneys that this might be an important
4 issue -- to raise the question as to whether the boys were
5 actually murdered there or murdered somewhere else?
6 A. You just changed the question. 'Cause we -- I think we
7 agreed -- agreed that two of the boys died at the crime -- at
8 the disposal site, correct?
9 Q. Right.
10 A. But the majority of the interaction between the victims
11 and the offenders, I believe, took place somewhere else
12 specifically the victim Christopher Byers who would have lost
13 a large amount of blood as a result of his injuries, and that
14 blood was not found at the crime scene.
15 Q. Okay. But to -- follow me if you will.
16 A. Um-hum.
17 Q. What you could have done had you been associated at that
18 time as a criminalist or a criminal profiler, could have
19 advised the defense attorneys, this is an important factor you
20 whether the majority of these acts occurred at
21 this scene or whether they occurred somewhere else?
22 A. Absolutely. And I would -- I would have -- as part of
23 performing their investigation -- their defense investigation
24 -- that's what I would have recommended, yes.
25 Q. Okay. And you said that you were familiar with the
1 testimony that indicated there was examination of witnesses and
2 testimony put on to indicate that, in fact, it might have
3 occurred somewhere else, correct?
4 A. Did I say that?
5 Q. Yes. You said you were familiar with the testimony that
6 that area and topic was gone into at trial.
7 A. Okay. Yes. Yes. Yes. Okay. I'm sorry. I
8 misunderstood the question. Could you -- could you ask the
9 question again just for the record because I misunderstood the
11 Q. Were you aware that there was testimony at the trial
12 regarding that specific topic that -- that due to a lack of
13 blood that the crime scene could have been somewhere else?
14 A. Yes.
15 Q. Okay. And were you aware that there were certain
16 statements made by Doctor Peretti that would have bolstered
17 that or could have been consistent with that, that was elicited
18 by defense counsel?
19 A. Yes, I am aware of that.
20 Q. Okay. And so what you would have done was to the -- was
21 to alert defense counsel to go into that area and provide that
22 information and, in fact, that was done at trial, wasn't it?
23 A. Well, what they didn't do is they didn't hire a crime
24 scene reconstructionist, and that is yet again a separate type
25 of expert from the types that we've been talking about, and
1 that's -- that's what I would have recommended. And somebody
2 to investigate the possibility of locating those other scenes.
3 Q. Did you recommend in this report that they hire a crime
4 scene reconstructionist?
5 A. I don't think I recommended it in this report, but I know
6 I recommended it to Dan after we had lengthy discussions on the
8 Q. Okay. So that's something that's been developed later --
9 A. No.
10 Q. -- as far as a suggestion?
11 A. Not much specifically later, no. It's been -- it's been
12 a general suggestion anyway from the beginning to the end of
13 the -- of the involvement -- concluding when I wrote the
14 report. I just didn't -- it's so evident it just didn't make
15 it into the report. I mean, you needed a crime scene
16 reconstructionist to come and tell you all the things that
17 occurred in this place.
18 Q. Are there licensed crime scene reconstructionists?
19 A. You know, there really aren't licensed crime scene
20 reconstructionists. Crime scene reconstructionists tend to be
21 retired law enforcement criminalists who happen to be -- for
22 example -- I have a colleague who's just retired from the DOJ
23 after twenty-eight years, and he is one of the -- one of the
24 finer crime scene reconstructionists in the country. It
25 depends on -- again, it's all about experience and training and
1 that sort of thing. There is no certification process.
2 Q. Okay. And that's the type of thing that a good criminal
3 investigator would be aware of?
4 A. Yes.
5 Q. Okay. And so if you had a crackerjack criminal
6 investigator working for defense counsel and you were alerted
7 to this issue, then that's something that he could assist in
8 providing or obtaining would be a crime scene
10 A. That's correct.
11 Q. Now, under the scene type -- and this is on page thirty -
12 it says, the primary scene is most often defined as the scene
13 where the most interaction between victim and offender take
14 place. The crime scene that these victims were found at was a
15 disposal site. This is established by the following factors:
16 Number one -- you said -- the first factor -- and I'm gonna
17 paraphrase it some -- but the nature and extent of the wounds
18 required light, required time, and required uninterrupted
20 And you said, as it was dark in these woods and as search
21 parties were traveling in and out of the area all evening, this
22 dictates -- dictates a secluded structure of some kind away
23 from the immediate area of attention.
24 A. That's my opinion, yes.
25 Q. Okay. Well, number one, it wasn't dark in the woods at
1 6:30, was it?
2 A. Well, I wasn't there at 6:30. I've been out there around
3 that time, and it's very dim and then when we get down into --
4 we discussed this on the phone -- we get down into the
5 trenches, it gets even darker. So it's very difficult to see.
6 Q. Okay. In May of -- in May of the year?
7 A. The sun's -- well, what -- the sunset would be like what
8 -- 8:00 o'clock or 8:30 -- something like that? And you could
9 -- I mean, it's very thick with foliage and then we got down
10 further, so the visibility would not be appropriate in my
12 Q. But you've got some daylight until a quarter 'til eight --
13 8:00 o'clock?
14 A. No, I do not -- I do not know for sure that's -- that's
15 the time.
16 Q. Okay. Well, that's -- that's a factor you put in this
17 report saying that this was secondary, or this was a disposal
18 site, not the primary site.
19 A. Yes.
20 Q. Okay. So you really don't know what the light status
21 would be at 6:40 in the evening -- 6:45 in the evening at that
23 A. I couldn't give you a scientific measurement.
24 Q. Okay.
25 A. But having been out there in the middle of the day when
1 the sunrise high, it was dark enough as it was.
2 Q. Okay. When do your records reflect that search parties
3 first started traveling in and out of the area?
4 A. I'd have to go back to my time line here. Can I do that?
5 Q. Okay.
6 A. And I'm going off of the statement made by John Mark
8 Q. Okay.
9 A. Let's see. I know that they filed -- they began filing
10 their reports at about -- let's see -- Mark Byers fired --
11 filed his report at about 8:10.
12 Q. Okay. So the first reports are filed at 8:10. The
13 searches don't start until some time after that, correct?
14 A. That's correct.
15 Q. Okay. So for a time period, the searches hadn't -- hadn't
16 started so as far as the searches impeding the privacy of that
17 area, that didn't occur until sometime later that evening,
19 A. That's correct.
20 Q. Okay. And then it says, this dictates a secluded
21 structure of some kind away from the immediate area of
22 attention. If for this time period, it wasn't an immediate
23 area of attention and there was some light out there, what
24 basis do you have to conclude that there was a structure --
25 this dictates a secluded structure away from the immediate area
1 of attention.
2 A. In my opinion, based on other cases I've worked where
3 behavior to this was engaged. And by that I mean
4 torture with more than one victim especially that would result
5 in lots of struggling, lots of screaming, and lots of blood.
6 It would more than likely to me suggest a structure --
7 especially one that had a light -- given the lack of light in
8 my opinion that would be available at the scene especially to
9 do what was done to the victims to see -- to do the
11 MR. MALLETT: Excuse me, what page are you
12 reading from?
13 MR. DAVIS: I'm reading from page thirty.
14 MR. MALLETT: Thank you.
15 BY MR. DAYIS:
16 Q. Would that be a conclusion that you're reaching
17 generalizing based on other experience you've had or other
19 A. Well, yes, with an explanation.
20 Q. Well.
21 A. I have experi -- I have experience in other cases that are
22 like this. But in this particular instance, the facts also
23 suggest that. So it's not a -- it's not just based on a
24 generalization. The facts suggest -- the facts suggest that to
1 Q. Well, you're using other cases to make generalized
2 observations about this one, correct?
3 A. In -- in part. In part. But I'm not making a conclusion.
4 I am suggesting the need for, again, somebody to reconstruct --
5 the case to establish what is fact and what is not, and I'm
6 giving investigative direction here. I'm not trying to make a
7 firm conclusion. I'm saying, in my opinion based on these
8 factors, now let's have some experts review them and get the
9 facts straight.
10 Q. Do -- I just -- in some of the literature I've read that
11 you wrote --
12 A. Yes.
13 Q. -- quote, unquote --
14 A. Always.
18 Q. -- generalizing and -- generalizing is generalizing, and
19 generalizing is bad.
17 A. Generalizing is -- yes, it is bad.
18 Q. Okay. And you said at one point --
19 A. With --- with an explanation. May I explain?
20 Q. Okay.
21 A. Now, we're talking about offenders. When -- when I make
22 these statements about generalizing, I'm talking about the
23 inferences of offender characteristics, and we are not talking
24 about offender characteristics.
25 Q. Aren't you generalizing that in other cases, offenders had
1 done it in structures -- isolated structures and, therefore, if
2 they did -- of other offenders did it in other cases, that it
3 must have occurred in this one?
4 A. No, that is not my reasoning. Again, I -- I thought I
5 clarified that. In this case, the facts suggest that to me,
6 not other cases that I've worked on.
7 Q. The facts of no light and the facts of this not being a
8 secluded area because there were searchers there.
9 A. And -- and the fact that there's no blood and the fact
10 that they needed light and the fact that nobody heard screaming
11 that would have been requisite. I mean, obviously, there's
12 screaming because somebody was covering the victim's mouths. I
13 mean, so again, the facts dictate to me. I'm not generalizing.
14 Q. And with no screaming, have you -- have you been out there
15 in those woods when the leaves were out and the traffic was
16 heavy late in the afternoon from the interstate highway there?
17 A. Yes.
18 Q. Don't you have to talk in a loud tone of voice even to
19 hear each other's con -- conversing in those woods at that
20 point in time?
21 A. I didn't have to -- I didn't -- I didn't have to at the
22 time, but I can -- I can imagine that it would be very
23 difficult for other people outside of that area to hear you.
24 However, that area is an area that's frequented by children.
25 Q. And you also indicated that you made some conclusions
1 based on the face that all the clothes and bicycles were dumped
2 in the same place?
3 A. That's not what I -- I don't -- I don't -- no.
4 Q. You're aware that bicycles were dumped in one ditch and
5 the clothes were dumped in another one?
6 A. That's what I'm aware of, yes.
7 Q. Okay. The bicycles were dumped closest to the pipe
8 entrance to the woods where you walk across the pipe into the
10 A. It's my understanding that they recovered them from that
11 -- the pipe that you walk across to get out there. That's my
12 understanding because they were stopped next to it.
13 Q. Now, you indicated in your report there are at least --
14 that we're at least three crime scenes short of solving this
16 A. Yes. Three potential crime scenes, yes.
17 Q. Okay. Well, one of the crime scenes that you refer to is
18 the dump site.
19 A. Yes.
20 Q. Okay. And the abduction site which is presumably in or
21 near Robin Hood Hills area?
22 A. Presumably. Given the -- given the witness statements
23 regarding the last seen location of the victims.
24 Q. Okay. Do you have any evidence to believe that the dump
25 site and the abduction site are different?
1 A. The dump site and the abduction site -- I have no evidence
2 to suggest -- yeah, I can't -- I can't opine on evidence I
3 don't have.
4 Q. Okay. And so when you said that, you're just assuming
5 that there were -- they were abducted one place and they were
6 disposed of in another place, and you don't know whether it's
7 the same place or not?
8 A. Could you repeat that question, please, 'cause you --
9 Q. They were abducted in one place, disposed of in another
10 place, and you don't know, or can't render any estimate as to
11 whether those are one and the same place or not?
12 A. I can -- I cannot opine on facts I don't have.
13 Q. Okay. So when you say they were three crime scenes short
14 -- three crime scenes short, one of those may be the same
16 A. It is a -- a possibility.
17 Q. Okay.
18 A. However, I don't have evidence to the contrary. I don't
19 have evidence to suggest that they are -- that they are the
20 same place.
21 Q. Okay. And then you said that we've got a vehicle to
22 transport them, right?
23 A. That is suggested by the -- by these suggestions that
24 there's a primary crime scene, yes.
25 Q. Okay. So all the factors that go to determine that
1 there's a primary crime scene somewhere other than the disposal
2 site, that's what causes you then to add another crime scene
3 which is -- or another crime scene which is the --
4 A. Yes, the vehicle, right.
5 Q. Okay. Because that would be necessary to transport 'em
6 back to the woods and dump 'em?
7 A. Yes.
8 Q. Okay. And you go further and say a truck of some kind?
9 A. Because you have three victims and some -- some kind of
10 truck. I mean, some kind of general vehicle that you'd be able
11 to fit three kids in.
12 Q. Okay.
13 A. Again, keeping in mind this is an investigative suggestion
14 to hand to defense investigators so that they can go and
16 conduct a competent investigation into what is fact and what is
17 Q. Okay. Is there anything to suggest it's a truck other
18 than you just said there's three kids, a truck would be easier
19 to haul 'em in?
20 A. Well, the truck -- the socioeconomic area. Again, it would
21 just make it -- it would seem easier.
22 Q. So that's not really scientific -- that's just -- you can
23 look around in that area, it doesn't have a lot of people
24 driving a Cadillac, so --
25 A. Right.
1 Q. -- probably more likely they're driving a truck.
2 A. I'm sorry. It's a suggestion, yes.
3 Q. Okay. Is that something you were trained to do in
4 criminal profiling?
5 A. How do you mean?
6 Q. Make suggestions like that just based on kind of gut
8 A. I didn't make it based on a gut reaction.
9 Q. Now, on page thirty-one, you indicate that the assailant
10 -- it's clear that the assailant had a -- well, first off, you
11 say, it's clear that the assailant was much longer -- larger
12 and stronger than the victims.
13 A. (EXAMINING.) Where are we? Oh, here we are. Yes, that's
15 Q. And what -- how did you conclude that?
16 A. Because of the massive brutal injuries that were inflicted
17 upon these victims.
18 Q. Okay. Did you know the sizes and heights of the victims?
19 A. They were -- I knew from the missing persons report and
20 with the information that was in the autopsy report, these were
21 not large children. They were eight-year-old kids.
22 Q. Okay. So, I mean, as part of that conclusion and fact
23 that as small as these kids are, chances are the perpetrator
24 was much larger --
25 A. No.
1 Q. -- that these acts weren't performed by their
2 contemporaries that were eight-years-old?
3 A. Part of that conclusion -- no, that was not part of the
4 conclusion, no.
5 Q. Okay. And then it goes on further and you said, that the
6 knife would not have been displayed during the initial
7 approach. The method of approach in this case was most likely
8 a con of some kind to acquire trust followed up at another
9 location by a sudden violent attack to gain control.
10 A. Yes. Again, that's a suggestion to look into.
11 Q. Okay.
12 A. A possibility.
13 Q. That's a possibility based --
14 A. Based on the fact that the kids didn't run away --
15 Q. Okay.
16 A. -- when the person first approached them.
17 Q. And how do you know that?
18 A. Because they're dead.
19 Q. What if there were evidence and testimony that in fact one
20 of the children did run away?
21 A. Well, they didn't get far.
22 Q. But that would be contrary to your conclusion here,
24 A. No.
25 Q. That one of the children did run away and had to be
1 brought back.
2 A. Well, they ran away after the initial -- initial approach.
3 I'm sorry. I don't mean to be evasive. But the first -- what
4 I was referring to when I talked about the knife was during the
5 initial approach of the intended victims. Subsequently, they
6 may very well -- the victims may very well have tried to get
7 away. I have no problem with that.
8 Q. Well, when you say this was a con, is that not just
9 looking into a crystal ball or kind of like reading a horoscope
10 and you just come up with these theories?
12 Q. Okay. And that's based on scientific expertise and --
13 A. You've just combined two things. No, it's not based on
14 science. It's based on expertise.
15 Q. Which is based on your experience and training?
16 A. Yes.
17 Q. Okay. Let me turn -- refer you to page thirty-three.
18 A. (EXAMINING.)
19 Q. Where it says precautionary acts.
20 A. Yes.
21 Q. Okay. And you cite three things there.
22 A. Oh, excuse me. I don't mean to interrupt. May I explain
23 what a precautionary act is before we --
24 Q. Sure.
25 A. Okay. A precautionary act -- precautionary act is an act
1 that an offender takes in order to conceal their identity or
2 manipulate the crime scene in order to defeat investigative
3 efforts. That's a precautionary act.
4 Q. Okay. And so that would be things like removing evidence
5 from a crime scene, altering a crime scene in order to cover up
6 the fact that a crime was committed and that you committed it?
7 A. I would agree with that, yes.
8 Q. Okay. And so what you say is that in your interpretation
9 of the evidence that whoever committed this crime did a lot of
11 A. They were thinking about it, yes.
12 Q. Okay. Well, you cite that they were -- you say that they
13 removed the victims to a location that he controlled.
14 A. I used "he" in the general human sense.
15 Q. Okay.
16 A. Not in a --- specifically identifying a sex.
17 Q. Okay. But your indications are that it wasn't one person
18 that did this.
19 A. It's possible there were two or more.
20 Q. Well, is fact --
21 A. Possible.
22 Q. In fact, in your report, you cite various factors which
23 indicate that it's more consistent with more than one person
24 having committed the crime.
25 A. I agree with that, yes.
1 Q. Okay, in terms of how many were involved, you don't
3 A. No, I could not speculate.
4 Q. It's just more consistent with more than one?
5 A. Yes, that's correct.
6 Q. Okay. Disposal of the bodies in the water, that was an
7 act -- a precautionary act?
8 A. Yes.
9 Q. Why is that a precautionary act?
10 A. Because the water is a great medium for dispensing of
11 trace evidence. You throw a body in the water, you lose all
12 of your fiber evidence, you lose any semen or sperm evidence,
13 you lose anything that may have trans -- you potentially lose
14 anything that may have transferred from the perpetrator to the
15 -- to the victim.
16 Q. Okay.
17 A. It destroys that evidence.
18 Q. Okay. And so evidence of that nature would have been
19 destroyed or altered as a result of those acts?
20 A. It cold have been, yes.
21 Q. Okay. And destruction of the victims' clothing and
22 related evidence, that's another precautionary act?
23 A. Yes.
24 Q. And all that conclusion is is that whoever did this took
25 those steps in order to prevent apprehension and discovery?
1 A. Yes, that's correct.
2 Q. Okay. Would that be consistent with somebody focusing a
3 search on the area where they had gone to those steps to
4 destroy or alter or remove evidence?
5 A. Not in this case, no.
6 Q. Why was that? It seems to me like if you're taking those
7 precautionary acts to remove the evidence and to get rid of
8 clothing -- destroy clothing, as you say -- and other evidence
9 that that would not be consistent with somebody alerting
10 investigators to this particular area.
11 A. Well, offender, -- offenders may often lead - lead the
12 authorities to the place where the bodies are found so they can
13 be the person that finds the body and thus assist them in
14 dissuading the investigative -- the investigative efforts
15 toward them. They can use that -- that in and of itself can be
16 a precautionary act -- leading the investigation -- saying,
17 look, I found the body -- or, look, we found the body.
18 Q. Now, the number of assailants on page thirty-four, and
19 I've touched on this a little bit.
20 A. (EXAMINING.) Okay.
21 Q. And you indicated, the presentation is more consistent
22 with two offenders than with one or three.
23 A. Did I say that? Where -- where am I? Where is it?
24 Q. The second sentence right under "Number of Assailants."
25 A. (EXAMINING.) Oh, right, yes.
1 Q. Okay.
2 A. Given the physical evidence that I had and that's, again,
3 speculation that's a -- it's a -- it's a direction to go in.
4 It's not necess -- it's not a firm conclusion.
5 Q. All right. So you would -- if -- if you're giving this
6 report at the time of preparation for trial --
7 A. Yes.
8 Q. -- you'd be telling defense counsel, based on my
9 evaluation, there's more than one person involved in this
11 A. That's correct. That's what I'd be telling him.
12 Q. Okay. And there could have been as many as three?
13 A. Yeah. I would not -- I would not tell them to exclude the
14 possibility of three, or four, or five. I would not tell them
15 to exclude that possibility. And nor would I have told them to
16 exclude the possibility of different -- male or female
17 offenders either.
18 Q. You refer under sub-section three where it says -- where
19 it talks about the nature and quality and extent of the
20 injuries to Chris Byers and Steve Branch.
21 A. Um-hum.
22 Q. You refer to the bite marks he appears to have suffered --
23 referring to Chris Byers?
24 A. Yes.
25 Q. Okay. And you've made certain factual determinations
1 based on those bite marks?
2 A. No, I did not make factual determinations. I suggest --
3 this, again, speaks to the need to have a forensic pathologist
4 -- no, excuse me. In this case, a forensic odontologist take
5 a look at those and opine as to whether or not they may or may
6 not be ecchymotic suction marks that are consistent with a bite
7 type mark, a sexualized bite mark.
8 Q. Well, you're making -- you make connotations or draw
9 opinions from the fact that you think it was a sexually
10 oriented attack.
11 A. I believe it was, yes.
12 Q. Okay. And the significance -- the reason you drew a
13 significance to that was because the bite marks he appeared to
14 have suffered were of the suck mark type which is more sexually
16 A. That's one. There's also the fact that his penis was
18 Q. Okay. But that's in your report. I'm reading that about
19 the bite marks.
20 A. Absolutely.
21 Q. Okay.
22 A. That's one factor, yes.
23 Q. Okay. So we jump from the front of your report where
24 you're saying, I don't know if these are bite marks or not and
25 I don't have the expertise to --
1 A. Right.
2 Q. -- determine that. But then in the back of the report
3 your referring to in addition the bite marks he appears to
4 have suffered are of this variety and then draw conclusions
5 from that.
6 A. I draw conclusions if -- assuming that those facts are
7 true -- and this is, again, to provide investigative direction
8 to the -- to the counsel.
9 Q. So if it turns out that those facts aren't true, then that
10 would have been a waste of time to tell an attorney about it?
11 A. I don't think it would have been a waste of time, no. But
12 it would not -- the theory would not be valid if those were not
13 true. It would not be a waste of time though.
14 Q. Okay. Page thirty-five, satanic ritual assessment.
15 A. (EXAMINING.) Right.
16 Q. One of the things I believe you testified yesterday was
17 that your important findings were regarding the primary and
18 disposal sites and also whether this was a satanic type
20 A. That's correct.
21 Q. Okay. And you say at the very first, this crime does not
22 present at all as a satanic ritual or cult related homicide.
23 A. That's correct.
24 Q. Okay. And you cite three different propositions for that
25 basically in this report.
1 A. That's correct.
2 Q. Okay. Victimology, okay. Now, in your report it says
3 that cult murders or satanic cult murders can be the result of
4 randomly selected victims.
5 A. It can.
6 Q. Okay. So the fact whether -- whether the perpetrators
7 were familiar with these victims did not necessarily exclude
8 this as being a satanic or cult related killing?
9 A. Right. And -- I mean, yes, with an explanation
10 Q. Okay.
11 A. I don't mean to try to draw this out any further but just
12 to -- to clarify. It's not just one fact. It's the
13 convergence of facts that we're looking at. So that fact by
14 itself, correct, does not exclude the possibility of a satanic
15 ritual, but it doesn't include it either. And then the
16 convergence of other facts, that's how I make my determination.
17 Q. Okay. Are you -- when you make those -- when you say cult
18 murders can be the result of randomly selected victims but most
19 often they're members of the group or fringe members, is that
20 derived from a generalization regarding satanic or cult
22 A. That is derived from the experiences of other
23 investigators. It's from the crime classification manual.
24 This, again, is not profiling. This is a determination of the
25 type of case this is -- not the profile, not the
1 characteristics of the offender, not the personality of the
2 offender. It's the overall aspect of the crime.
3 Q. So those generalizations are okay when you use those books
4 for that purpose?
5 A. No, you're mischaracterizing what I'm saying.
6 Q. Are you generalizing based on those -- the information
7 contained in that book?
8 A. I'm not generalizing, no.
9 Q. Okay. When you say they can be the result of randomly
10 selected victims but most often they're victims of a group or
11 fringe members, is that not a generalization?
12 A. Yes, with an explanation.
13 Q. Okay.
14 A. With the explanation that this is not -- we're talking --
15 I'm afraid we're talking about two different things, and I
16 don't want to confuse the Court with the difference between the
17 two. I mean, I don't want -- I want to clarify it for the
18 Court what the difference between the two is.
19 When I talk about not generalizing, I talk about not
20 generalizing the characteristics of the offender. We're not
21 talking about the characteristics of the offender. We're
22 talking about the presentation of the crime scene. In a
23 satanic ritual homicide there are certain things that you would
24 expect to find to suggest that.
25 Q. Okay.
1 A. All right. Certain -- certain characteristics of the
2 crime scene.
3 Q. And one of the things it says, it generally does
4 involve multiple members, right?
5 A. Yes, that's their conclusion, yes.
6 Q. Okay. And in this case you found -- based on your best
7 estimate -- that multiple people were involved in having
8 committed it, correct?
9 A. That's a possibility, yes.
10 Q. Okay. So when you say at first that this does not present
11 at all as a satanic ritual or cult related homicide, one of the
12 things that you generally find in terms of the victimology is
13 that it involves multiple members and in this case we had
14 multiple perpetrators.
15 A. Yes.
16 Q. Okay. So that fact is consistent, right?
17 A. But that fact is not conclu -- does not even begin to
18 suggest a satanic ritual.
19 Q. Okay. But the other factor that you refer to is that it
20 can be the result of randomly selected victims but most often
21 they're members of the group. And since these weren't members
22 of the group that were killed --
23 A. What group? Are you assuming that there's a group?
24 Q. Yes, sir.
25 A. Well, I am not.
1 Q. Okay. Well, since -- since that's the one finding that
2 you list in your report under victimology -- that the victims
3 are members of the group or fringe members --as being not
4 consistent under victimology with this not being consistent
5 with a satanic killing.
6 A. No. I'd -- I'd mentioned that as a general suggestion. I
7 don't opine as to whether or not they were members or not
8 members. I don't even assume that there's a group. I just
9 give that as a -- an insight to the person reading this report.
10 It's something to look for, again.
11 Q. Okay.
12 A. And, again, what I'm looking for in this crime scene to
13 suggest to me a satanic ritual is evidence of a ritual or
14 evidence of Satanism.
15 Q. Okay.
16 A. And we have none of that. And that is what that first
17 line at the top of the thing that we read off -- this crime
18 scene does not present at all the satanic ritual or cult
19 related homicide. There are no thematic behaviors or rituals
20 that suggest to me in this crime that it is satanic or ritual
22 Q. Okay.
23 A. -- at all.
24 Q. But the very next paragraph says, according to your crime
25 classification manual, the cult murder has specific defining --
1 defining characteristics that are largely unseen in these
2 particular homicides. They are as follows -
3 A. Yes.
4 Q. -- victimology. Then you list the defining
5 characteristics that aren't seen, right?
6 A. Can you rephrase your question, please?
7 Q. Under victimology you then list the defining
8 characteristics that aren't seen in this case.
9 A. According to this -- according to this treatise, yes.
10 Q. Okay. And they can be the result of randomly selected
12 A. Yes, they can.
13 Q. Okay. And you don t know if these victims were randomly
14 selected or not?
15 A. Not -- well, no, with an explanation. I don't know -- in
16 my opinion, they weren't randomly selected.
17 Q. Okay.
18 A. And I believe --
19 Q. So if they aren't randomly selected, then it fits the
21 A. No, because, again, you're trying to take a -- I don't
22 mean to be coy or evasive. Can -- can I explain?
23 The entirety of the -- the convergence of the evidence is
24 what we're looking at. This is not a checklist and if you
25 treat it as though it's a checklist, you're gonna be mislead.
1 The entirety -- what I'm looking for and what I mean by this
2 crime does not present at all as a satanic ritual or cult
3 related homicide, is that there are no behaviors or themes
4 within the crime scene, no evidence of behaviors, no evidence
5 of -- of -- of affect at the crime scene that suggests that.
6 So regardless of whether or not these things exist or do not
7 exist, it -- those do not bear upon whether or not this is a
8 satanic homicide. However, they are listed as things the crime
9 classification manual says to look for.
10 Now, investigatively, it's just not there. And that's my
12 Q. And under crime scene indicators, you say the crime scene
13 will generally contain items of imagery or that are symbolic of
14 the group or cause?
15 A. To have -- to make the assessment to say that something is
16 a satanic ritual, yes, you need to have evidence that's there
17 that suggests that. You can't just --
18 Q. Are you -- are you quoting from this source when you put
19 these paragraphs in, or is this -- when you said, the crime
20 scene will generally contain these items.
21 A. That's -- that's from the crime classification manual.
22 That's the language generally.
23 Q. Okay. And then it again cites under that indicator that
24 generally you have indications of multiple offenders.
25 A. Yes.
1 Q. Which is consistent with this case?
2 A. Again, taking a single fact out of context and trying to
3 interpret it is -- it's not -- it's not fruitful. You cannot
4 take a fact out of its context and try to interpret. It must
5 be interpreted within the dynamic of all the other behaviors
6 and all the other evidence in the case. You can't just take it
7 out -- when -- when I make my conclusions, at least.
8 Q. Well, you cited that fact in your conclusion.
9 A. I cited it as what the crime classification manual says.
10 Q. And that fact was present in this case as best as you
11 could surmise?
12 A. Yes, that's true.
13 Q. Okay. And that was a fact that would be consistent with
14 the satanic ritual assessment.
15 A. Again, if you try to take -- I apologize. I didn't mean
16 -- finish your question. I'm sorry.
17 Q. Let me ask. That fact would be a fact that is consistent
18 with satanic ritual assessment? True -- yes or no?
19 A. It is consistent according to the crime classification
20 manual as one factor; however, with an explanation, please.
21 And this is very important. You cannot take a single fact like
22 this and interpret it outside of the absence of other evidence
23 that suggests this is a satanic ritual. This -- this could
24 also be -- this could also indicate something else. It's not
25 checklist. If you treat it as though it is a checklist, you're
1 going to be mislead.
2 Q. Investigative considerations and leaders of cults or such
3 groups tend to have a masterful -- masterful ability to attract
4 and manipulate people exploiting their vulnerability. Did you
5 examine any of the psychiatric records and reports regarding
6 this defendant, Damien Echols?
7 A. Absolutely not.
8 Q. Okay. So if there's any indication in those that this
9 defendant has a very manipulative personality and indications
10 of that nature which would fit this description, then you
11 haven't considered that or taken that in any consideration in
12 reaching any of your conclusions?
13 A. I am not interested in using a criminal profile suggest
14 the guilt of a particular -- the guilt or innocence of a
15 particular person.
16 Q. Okay.
17 A. And I do not review -- I -- I think we covered this
18 yesterday -- I do not review suspect information because
19 don't want to have it bias my profile.
20 Q. Now, on page thirty-seven you ultimately make the
21 determination -- or it's your opinion that the classification
22 is most consistent with a battered child homicide.
23 A. That was my interpretation, and that's where I felt the
24 investigative efforts ought to be placed in this case, yes.
25 Q. Okay. And would it be fair to say that based -- that your
1 report contains -- the basis for that is primarily the bite
3 A. No, that's not true.
4 Q. Okay.
5 A. The basis for that is primarily the victim history and the
6 severity, the brutality, and the anger evident in the crimes.
7 Q. Okay.
8 A. The bite marks actually -- you could remove the bite marks
9 from this equation and I would still have the same opinion.
10 Q. When I read this section and it says, according to
11 practical -- under sub-section D -
12 A. Um-hum.
13 Q. -- page thirty-seven -- according to practical homicide
14 investigation, the interpretational pattern and the bite mark
15 evidence breaks down generally as such and lists -- lists
16 homosexual homicides, heterosexual homicides and battered
17 children, reference to bite marks and it said, there are two
18 kinds of people --
19 A. Well, I'm sorry. What page are you on?
20 Q. Thirty-seven.
21 A. Oh, excuse me.
22 Q. And it differentiates between those types that are
23 consistent with sexual versus those that are for --
24 A. Anger.
25 Q. -- anger and then it says --
1 A. Or pun -- punitive punishment oriented.
2 Q. Then you refer to Doctor Lowell Levine.
3 A. Doctor Lowell Levine.
4 Q. Lowell Levine -- about suck bite marks versus tooth bite
5 marks and that these attacks are -- defensive bite marks are
6 seen most often in a battered child, and the bite marks in this
7 case appear to be in the majority of the nature and quality
8 described above in a battered child homicide.
9 A. They appear to be, and that's again why I suggested --
10 see, Lowell Levine is a forensic odontologist - and again,
11 that's why I would have a forensic odontologist look at these
12 injuries. And that's, again, to describe investigatively where
13 the defense -- or where the attorneys in this case ought to be
14 focusing their attention -- what experts they ought to call in.
15 Q. Okay. But what I'm -- what I'm trying to find out -- I've
15 read basically --
17 A. Um-hum.
18 Q. -- the totality of what you put under battered child
19 homicide assessments, and that is based in large part on these
20 conclusions drawn from the belief that there are bite marks
21 present, right?
22 A. No, There are other things that play into this and that
23 is, again, the victim history which is in the body of the
24 report and the -- the other extensive -- the massive brutal
25 punishment oriented injuries that were sustained by these
1 children - it's -- yeah, the bite marks are one component of
3 Q. Well, it's the primary component you elaborated on and
4 refer to in your section under battered child homicides
6 A. Well, that's -- that's true. But it's only one component
7 of many others.
8 Q. Okay. And you refer to bite marks -- plural, correct?
9 A. Yes, because there are potential -- potentially there are
10 more than one bite mark.
11 Q. And you refer to different types of bite marks and the
12 differentiation between sucking type bite marks and tooth
13 pattern bite marks?
14 A. I would definitely -- yes, I would, and I would definitely
15 ask that the forensic odontologist look for both types --
16 Q. And so --
17 A. -- since there are more than one type.
18 Q. -- some of your conclusions are suggestions or whatever
19 would be premised upon whether those type of bite marks even
21 A. Yes. But again to clarify. I don't -- I don't mean to be
22 drawing this out any further, but even if we remove the bite
23 marks from this case, I would still very strongly urge the
24 client to look into this possibility given the brutality of the
25 crimes and given the victimology of the crime.
1 Q. Now, let me refer to page thirty-nine which is the
2 offender characteristics.
3 A. (EXAMINING.) Yes, I'm there.
4 Q. And you refer under the very first section as personality
5 characteristics, and you know that there are very likely two
7 A. Yes.
8 Q. Okay. Why did you elaborate on one offender but not
9 elaborate on the other?
10 A. Because I felt that there was probably a -- a primary
11 offender who -- who initially had the rage, was initially
12 reacting and being angry. I didn't -- I didn't have a
13 suggestion as to specifically what the -- I didn't have a
14 suggestion in the evidence that there was a second offender.
15 And what there -- that there was a second offender that had
16 that much rage and that much anger and was reacting -- I didn't
17 have that suggestion.
18 Q. Well, you had -- part of the reason you concluded there
19 were two different offenders --
20 A. Right.
21 Q. -- was that there was two different type injuries, right?
22 A. That's correct.
23 Q. Okay.
24 A. The bite mark that is ecchymotic is not produced by rage.
25 Q. So the injuries on the face of Stevie Branch and those
1 types injuries that he sustained, you wouldn't characterize as
2 rage type injuries?
3 A. Yes, I would.
4 Q. Okay. And what about those on Byers?
5 A. He has rage in his genital areas, but he also has
6 ecchymotic -- what ap -- excuse me -- I'm not a forensic
7 odontologist so this is the issue that I would want a forensic
8 odontologist to opine upon. I would want them to tell me
9 whether or not potentially those were ecchymotic -- potentially
10 whether or not those were indicating rage to him or not and
11 potentially whether or not they were the sexualized type or
12 not. That is what I would want. I would want to consult this
13 a forensic odontologist, but there each injury - and this is,
14 again, we're talking about this complex injury -- wound pattern
15 analysis -- need to be looked at by people who are used to
16 looking at those kinds of injuries. Each injury needs to be
18 Q. To tell you the psychological make-up of the perpetrator?
19 A. That's used to infer that, yes. And that is a speculation
20 and inference, yes.
21 Q. Okay. But you go on and make that psychological
22 inferences regarding one perpetrator you deal with.
23 A. The one primary perpetrator that evidenced a rage.
24 Q. And is all this about him -- the perpetrator is glib and
25 superficial, extremely attentive and manipulative, he must be
1 dominant in all relationships with women. He can also become
2 very possessive and irrationally jealous.
3 Are all these things -- where do you come up with those?
4 A. Where do I come up with 'em?
5 Q. Yes, sir.
6 A. Well, they're inferred from the behavior -- we just went
7 through the entire report -- the entire report would con --
8 includes the forensic evidence of the behavior, the victimology
9 and the crime scene characteristics -- all those things are
10 from where I infer these characteristics. We establish the
14 behavior using the physical evidence - the potential behavior.
12 And then we establish the potential personality
13 characteristics, and that's why I would need to refer to all
14 these experts and defer to their expertise and see what they
15 think and see what their -- what their interpretations are.
16 And this, again, is to provide direction for the defense
17 -- not to point to a particular person and say, aha, that
18 person did it. It's to say, this is generally the type of
19 person you're looking for. It does not point to a specific
21 Q. Okay. So you concluded all these things and -- and -- in
22 your report regarding the psychological make-up of the
23 perpetrator based on your experience, education and training?
24 A. Based on my experience, education and training which I
25 used to examine the case materials in this case.
1 Q. And so all these facts -- the perpetrator being extremely
2 egocentric, requires instant gratification for his impulses,
3 can react violently, and projects a macho heterosexual in-
4 control image to those around him, despite deep homosexual
5 urges. You are qualified with your B. S. degree in psychology
6 and your training and experience to render all these
7 conclusions based on your evaluation?
8 A. Not with my B. S. degree alone, no.
9 Q. Okay. Based on your forensic science degree?
10 A. Based on my education and training and experience in the
11 area of psychology, forensic science, and criminal profiling.
12 But, I mean --- uh, never mind.
13 Q. You also said the race of the offender, -- you knew that as
14 white. Are you pretty sure about that?
15 A. That is something that I have come to regret.
16 Unfortunately, I think I would retract that now. That is the
17 one thing in this report that I think -- remember -- recall
18 that I had told you I had not reviewed trial transcripts in
19 this case?
20 Q. Um-hum. Yeah.
21 A. On the way out here I finally -- I was actually given a
22 copy of Detective Ridge and Detective Allen's testimony, and
23 they went into very good detail regarding the potential hair
24 evidence and the potential blood evidence that was not fully
25 examined and was not fully collected. And, in fact, that was
1 lost from the Bojangles Restaurant. And I had not seen actual
2 reports. I'd only had hearsay on that so I didn't include that
3 in my analysis. But after having seen that in their testimony.
4 I would have to include the possibility the defendant was black
5 now. I couldn't -- I couldn't exclude the possibility the
6 defendant was black, and I would state that.
7 Q. Okay. So your -- your observation about what the race
8 was, that was -- we -- we can't put much weight in that?
9 A. No, we can't -- now that I have new information. If
10 there's more information, I'm happy to look at it.
11 Q. Okay. The -- in arrest history you indicated -- based on
12 precautionary actions, you --
13 A. Yes.
14 Q. -- thought that the perpetrator would be someone --
15 A. What -- what page are you on now?
16 Q. -- previous arrest?
17 A. What page you on?
18 Q. Page forty.
19 A. (EXAMINING.) Thank you. Could you ask your question
21 Q. Previous arrests -- being consistent with someone with
22 previous arrests.
23 A. Yes. What would be consistent with someone with previous
25 Q. The profile -- the -- the profile of this person -- the
1 offender characteristics -- under arrest history you said, it
2 would be someone -- demonstrates a level of knowledge and
3 sophistication obtained through either repeated offenses or
4 some level of exposure to law enforcement training and
5 techniques or previous arrests for similar crimes.
6 A. That's correct.
7 Q. Okay. And that could be juvenile as well as adult, right?
8 A. That's possible, yes.
9 Q. Okay. And probably spent some time in prison or
10 correctional facility?
11 A. That's very -- very possible, yes.
12 Q. Okay. And he will have most likely been arrested for
13 incidents involving violent behavior and assaultive behavior.
14 A. That's very likely, yes, in my -- in my opinion.
15 Q. Okay. And we went over marital status the other day.
16 A. Yes.
17 Q. So the -- and you also said that the perpetrator lives
18 within a few miles of this site?
19 A. Yes, I did.
20 Q. Okay. And education and intelligence, how did you come up
21 with the fact that the perpetrator didn't have a college
23 A. You know, this is -- this is an area -- I think now since
24 I've written this report -- an area -- education and
25 intelligence after talking with colleagues and talking with
1 other -- talking with psychologists and talking with people who
2 are more qualified to do intelligence, I don't think -- I don't
3 think it's something that we can rely upon. I don't think
4 reliably I would give this education and intelligence level
5 again unless there is a specific indicator. Since then I have
6 dropped that from my profiles. I don't -- 'cause it's really
7 difficult to get at and it's really -- it's -- it's even more
8 subjective than the rest of this stuff in here.
9 Q. Really what you kind of said was anybody that lived over
10 in that neighborhood in West Memphis probably didn't have a
11 college degree, wasn't it?
12 A. No, that's not what I said. What I said was, the general
13 socioeconomic area -- the area and that -- that can -- that
14 includes that particular area, yes.
15 THE COURT: They drive pick-up trucks and
16 they're not well educated.
17 THE WITNESS: In general, in that socioeconomic
18 area, correct.
19 THE COURT: Okay. And that's scientific?
20 THE WITNESS: No, that's just observation.
21 BY MR. DAVIS:
22 Q. Military history.
23 A. Yes.
24 Q. Basically, isn't that saying that you -- that you don't --
25 it's not likely that he's been --
1 A. I don't know.
2 Q. -- in the military but he could have been and if was,
3 he'd probably had a dishonorable discharge?
4 A. Yes. Something to look for. It's an investigative--
5 these -- again, these are all investigative suggestions.
6 They're not meant to be scientific conclusions so they
7 shouldn't be treated as such. They're meant to point people in
8 the right direction.
9 Q. How -- how does that point a defense attorney to be told
10 he could have been but he might not have been and if he was,
11 he might have been this?
12 A. To-- it tells them to go look.
13 Q. So really in terms of whether he was or wasn't or
14 whatever, all you're saying is, if I'd been involved I'd have
15 told the defense attorney to check out and see if we can look
16 into all suspects -- potential suspects' military background?
17 A. Well, no, actually not. This particular section -- the
18 offender characteristics -- is unrelated to what I would do
19 ever for courtroom purposes. This -- this section is for Dan
20 so that he knows the type of person and he can communicate that
21 to his investigators. So that would -- forms their overall
22 investigation. It's not germane to getting additional experts.
23 THE COURT: Dan's case had been over with for
24 three years and seven months. What was he gonna do
25 with your report? I mean, what was the purpose of
1 it? I don't understand it.
2 THE WITNESS: Sir, you want me to answer that?
3 THE COURT: Yes.
4 THE WITNESS: I -- I -- I believe he was having
5 a real trouble with his conscience over this case.
6 He felt a serious miscarriage had been done, and he
7 wanted more information -- as much information as he
8 could get. And I think that's what his interest was.
9 THE COURT: All right.
10 BY MR. DAVIS:
11 Q. The next section is hobbies and personal interest.
12 A. (EXAMINING.)
13 Q. When you said that the offender has a very intense
14 interest in knives and likely has an extensive collection of
15 them in his home --
16 A. Yes.
17 Q. -- how did you reach that conclusion?
18 A. Well, the basis for that conclusion was his use of the
19 knife in the offense and, again, the area -- the area itself.
20 I mean that could describe anybody in Arkansas, I'm sure.
21 Q. You think we all run around with an extensive collection
22 of knives in our house?
23 A. No. No, that's not what I meant.
24 Q. Or just the ones that are used in homicides?
25 A. No. I'm saying that hunting and fishing behavior are very
1 common in Arkansas, and there are many non-homicidal purposes
2 for owning knives.
3 Q. Okay. Well, if basically what you're saying is a lot of
4 people in Arkansas hunt, fish and own knives, then what -- what
5 scientific basis is there for you to include this in any report
6 -- or what -- what expertise does that take? I mean, if you
7 just draw the conclusion that a lot of people in Arkansas hunt,
8 fish and own knives, and you put it in a report that our
9 perpetrator -- the general population has a lot of those
10 people and our perpetrator comes from that general population,
11 what value is that to anybody?
12 A. You can exclude people who have an aversion to knives.
13 Q. Okay.
14 A. From your investigative efforts and this is not a -- and
15 don't report this as a scientific basis.
16 Q. Okay.
17 A. So I want to make that clear.
18 Q. Okay. But don't you think without the assistance of a
19 criminalist or a criminal profiler that once we concluded --
20 once there's evidence that these crimes were committed with
21 knives that we could probably exclude those people who had an
22 aversion to knives?
23 A. I would hope so, but so much was overlooked in this case.
24 Q. The offender is unemployed?
25 A. In my opinion. You would -- you would -- more -- you
1 would include people who were unemployed in your search for
2 additional suspects.
3 THE COURT: Why?
4 THE WITNESS: Because of his temperament.
5 Because this is a person who gets angry very easily.
6 He probably couldn't hold down a job for very long.
7 If he did hold down jobs, it would be interspersed.
8 He's very temperamental. Somebody with this kind of
9 rage has a real control problem with their behavior.
10 BY MR. DAVIS:
11 Q. And finally on transportation you venture a - an opinion
12 as to what kind of vehicle the person drove.
13 A. Right. Yes, I did.
14 Q. I thought that was the kind of thing that you were
15 critical of the F. B. I. for doing was telling us we had a
16 twenty-six-year-old white male who drove a pink Chevrolet
17 pick-up truck or whatever. Isn't that the same thing you're
18 doing here?
19 A. No. No, it's not.
20 Q. So yours -- yours is more valid than theirs?
21 A. Well, mine's based on what I observed not based on
22 statistical inference based on the study of other like
23 offenders. Mine's based on what I found in this offense. The
24 criticism that I have with the F. B. I. and their methodology
25 and their generalizations is that they do studies on offenders
1 that are -- and that's fine -- they do studies on offenders.
2 Then they come to a case, and they apply those characteristics
3 to the offender without consideration as to what the facts in
4 the case are. That is my criticism. And in this case I
5 reviewed the facts, and this was my conclusion.
6 Q. Okay. And -- and you review the facts and then if there's
7 generalizations out there about certain offenders, you use them
8 and apply them to the case.
9 A. No, I do not. Not -- not as a matter of routine, no. I
10 observed that this a community that has those particular
11 characteristics, and that observation is what led me to this
13 Q. Okay.
14 THE COURT: It's 12:00 o'clock. How much
15 longer are you going to be with this witness?
16 MR. DAVIS: Just a couple of minutes, your
18 THE COURT: All right.
19 BY MR. DAVIS:
20 Q. If he does own a vehicle, it would be masculine like a
22 A. Again, that's borne out by what I suggested earlier -- his
23 need to demonstrate a macho image, and that's a potential --
24 something to look for. Something investigatively for the
25 detectives -- or investigators in this case -- to use to red
1 flag suspects with.
2 THE COURT: Driving a pick-up truck is one of
3 macho image. Is that -- the record can reflect that
4 Mr. Davis drives a pick-up truck. I have a car.
6 THE WITNESS: I have a car myself but I'm not
7 very macho.
8 THE COURT: I think I'll change to a pick-up
9 truck. (LAUGHTER.)
10 MR. MALLETT: I think Mr. Turvey is at least
11 half correct in his opinion, your Honor. (LAUGHTER.)
12 MR. DAVIS: Generally speaking.
13 THE COURT: All right, go ahead.
14 BY THE WITNESS:
15 A. Well, not -- not any pick-up truck. It's certain types.
16 THE COURT: I've been to California, too.
18 THE WITNESS: There's all kinds of things I'm
19 sure you can infer from my --
20 THE COURT: You could infer that California is
21 populated by Arkies and Okies that drive pick-up
22 trucks. (LAUGHTER.)
23 BY MR. DAVIS:
24 Q. We have a couple of other items, and then I'll let you
1 You indicated yesterday, you said the most significant
2 facts and I wrote 'em down -- there were three - that you
3 found in your analysis.
4 A. Yes.
5 Q. And one was the bite marks, okay, and we've covered that.
6 A. Um-hum.
7 Q. And the other one was the history of Chris Byers.
8 A. That's correct.
9 Q. Okay. Which you basically indicated that he web an eight-
10 year-old with attention deficit disorder?
11 A. That's -- there's quite a bit more to it than that.
12 Q. There's attention deficit disorder. There was conduct
13 disorder and A. D. D.
14 A. I believe that's what the pediatric neurology report said,
16 Q. And there was indications -- you started to say yesterday,
17 antisocial personality but then you changed it --
18 A. Right.
19 Q. -- and said, antisocial behavior.
20 A. Antisocial behavior, right.
21 Q. Because that wouldn't quite reach the point of being
22 antisocial -- social personality disorder.
23 A. Right. Right.
24 Q. -- with D. S. M., would it?
25 A. Right.
1 Q. Okay.
2 A. Yeah, it was just a mis -- just a misstatement.
3 Q. Okay. So antisocial behavior is just that you don't get
4 along well with your peers. You've done things that are not
5 proper interaction --
6 A. Oh, no. When I say antisocial behavior, I mean getting
7 into fights. I mean running away. I mean there was suggestion
8 that there were fires being set -- this sort of thing -- these
9 sort of things were in the -- in the reports.
10 Q. Okay. And --
11 A. Not just disagreement with other people and not working
12 well with others. It was a little more severe than that.
13 Q. Okay. And that -- those are the things that you
14 underlined yesterday when you said that that was a significant
15 fact -- was the history of Chris Byers?
16 A. Yes, it is.
17 Q. Okay. And then the other thing was that there was no
18 animal predation.
19 A. Excuse me?
20 Q. No animal predation indicated on the bodies.
21 A. That's not what I said at all.
22 Q. I wrote it down. Three factors that were most important
23 -- no evidence of animal or insect activity.
24 A. My gosh, I don't believe I said that.
25 Q. And so if you said that yesterday as an important factor
1 -- and I wrote that down -- then we can clear the record up by
2 saying that's not an important factor at all?
3 A. I -- what I said was that there was animal predation. I
4 believe we talked about that yesterday and I said that there
5 was -- I don't -- I won't -- what I said was, I didn't know
6 whether or not -- what the difference between -- I'm not a
7 forensic odontologist, and I cannot tell you the difference
8 between certain types of animal bite marks and human bite
9 marks. And that's what I would want a forensic odontologist to
10 come in and clear up. That s what -- that's what I believe I
11 said and, just for the record, that's what I intend to say.
12 Q. Okay. So you would have had three suggestions: Talk to a
13 pathologist about time of death and wound patterns, talk to an
14 odontologist and talk to an entomologist?
15 A. Well, four actually. Remember I said three and then I
16 amended it to four. The fourth being an expert in child sexual
17 abuse. Those would be my four primary suggestions, and that's
18 what you should glean from my report -- I mean, the -- the --
19 my client should have gleaned from my report.
20 MR. DAVIS: No further questions.
21 THE COURT: All right, let's take the noon
22 recess 'til 1:20.
23 Court will be in recess until 1:20.
25 (RETURN TO OPEN COURT.)
1 MR. MALLETT: May I proceed, your Honor?
2 THE COURT: Yes, sir.
3 REDIRECT EXAMINATION
4 BY MR. MALLETT:
5 Q. Mr. Turvey, this morning in response to extensive
6 examination about your report by the Prosecuting Attorney, Mr.
7 Brent Davis, you told us that when you were contacted, Mr. Dan
8 Stidham, attorney at law, wanted to have the -- a scene
9 evaluation and an evaluation of the perpetrator from your point
10 of view. Did I get that correctly?
11 A. An evaluation of the perpetrator by virtue of the behavior
12 at the crime scene, yes.
13 Q. And after reviewing all of the materials that you were
14 provided by Mr. Stidham and that you collected from whatever
15 sources, you wrote a report. I believe you told us that the
16 point of the report is -- was to give Mr. Stidham investigative
17 direction; is that correct?
18 A. That's correct.
19 Q. That in your opinion this was a case involving a triple
21 A. That's correct.
22 Q. A case in which -- as nearly as you could tell -- the
23 prosecution's theory was based largely on circumstantial
25 A. That's correct.
1 Q. And that under the circumstances presented in this
2 circumstantial evidence case of a triple homicide, you believed
3 that the defense attorneys should have consulted a forensic
5 A. Yes.
6 Q. That the purpose of the report was to give the benefit of
7 your investigative insights into the work that might have been
8 done and was not done?
9 A. That' s correct.
10 MR. DAVIS: Your Honor, I would object to
11 leading. This is his witness, and these questions
12 are strictly leading in every respect and form.
13 MR. MALLETT: Well, I am leading because I am
14 getting us down to a focus on what was done this
15 morning at great length, and I don't want to waste --
16 I don't want to use an excessive amount of the
17 Court' s time.
18 THE COURT: Well, if you promise me you're gonna
19 save time, go right ahead.
20 MR. MALLETT: Thank you, your Honor.
21 MR. DAVIS: Your Honor, it's my consideration
22 these questions are not just preliminary in
23 nature but are very substantive, and it's basically
24 his testimony -- Mr. Mallett is reciting the
25 question, asking for yes and no answers which are
l clearly leading and involve the items that are of
2 particular importance -- not just preliminary
4 THE COURT: I think I can sort through the
5 lawyer talk.
6 MR. DAVIS: Very well.
7 BY MR. MALLETT:
8 Q. And in addition to stating that they should have contacted
9 and arranged for a pathologist on behalf of the defendants,
10 what other experts did you recommend?
11 A. I recommended that they get in touch with a forensic
12 entomologist, a forensic odontologist, and an expert in child
13 sexual abuse.
14 Q. Mr. Turvey (sic) asked you about page thirty-five of the
16 A. Excuse me.
17 Q. Excuse me. Mr. Davis asked you about page thirty-five of
18 your report and the second full paragraph beginning on thirty-
19 five -- do you have it before you?
20 A. (EXAMINING.) Yes, I do.
21 Q. It -- do you see a sentence beginning, according to?
22 Q. Would you please read that sentence for his Honor?
24 A. "According to the Crime Classification Manual by John
25 Douglas, et al, a designation of 141: Cult murder has specific
l defining characteristics that are largely unseen in these
2 particular homicides."
3 Q. And complete that paragraph.
4 A. "They are as follows."
5 Q. And then what flows down on page thirty-five under this
6 title with headings of victimology, crime scene indicators,
7 investigative considerations about which Mr. Davis questioned
8 you. Those things, those facts, those indications are
9 materials which you have taken from the book Crime
10 Classification Manual by Mr. or Ms. Douglas - whatever gender
11 the author might be?
12 A. Mr. Douglas, yes.
13 Q. All -- all right. So you cited a book as an authority and
14 then put in your report what the author of the book had to say?
15 A. That's correct.
16 Q. Author's opinions, not necessarily your opinions?
17 A. That's correct.
18 Q. You spoke in response to questions by Mr. Davis about your
19 approach having to do -- and I want you to correct me if I'm
20 wrong on this -- with looking for a convergence of factors as
21 distinguished from a checklist. Did I hear you correctly?
22 A. You certainly did.
23 Q. What do you mean by -- now, I think everybody in the
24 courtroom generally knows what a checklist is -- what do you
25 mean by a convergence of factors?
1 A. What I mean is that if you take a particular fact and you
2 take it out of context, it loses all of its meaning because it
3 -- a fact inside of a dynamic event has its own special and
4 unique meaning within that event. And that's why you can't
5 approach something like a triple homicide with a checklist
6 because not all triple homicides are the same, not all crime
7 scenes are the same. You have to look for a convergence. You
8 have to look for the thematic meaning of the behavior in its
9 context. You can't just look at it one piece at a time.
10 Q. And in a section of the book -- a section of your report
11 -- excuse me -- in a section of your report titled, Offender
12 Characteristics. Did I near you correctly when I wrote down
13 you wrote this to assist Mr. Stidham but not necessarily to
14 guide investigators in the case?
15 A. That's correct. That's largely correct. But the first
16 three sections of the -- of the report are for investigative
17 direction and the offender characteristics section is largely
18 to assist Mr. Stidham.
19 MR. MALLETT: Next, your Honor, may I move for
20 the Court's consideration what is marked as Exhibit
21 forty-four, petitioner's exhibit, which is the report
22 about which there were such -- excuse me -- Mr.
23 Turvey's report about which there was so extensive --
24 so much extensive reference.
25 And if I could approach the bench very briefly
1 with the prosecuting attorney, your Honor?
2 (THE FOLLOWING DISCUSSION WAS HELD AT THE
4 MR. MALLETT: I would ask that the Court receive
5 this as evidence. I would ask that the Court place
6 it in an envelope under seal because I would not want
7 members of the public to casually review it in the
8 Clerk's office where they might find those
9 photographs for dissemination and reproduction. The
10 report does include very explicit autopsy
11 photographs. So while I want the Court to have it
12 available to consider in this as part of the record
13 of the case, I would say that the privacy of the
14 family members of these children might be better
15 protected by keeping it under seal in an envelope --
16 MR. DAVIS: I would object to the introduction
17 of the entire report. The entire report contains
18 other matters that aren't addressed on cross
19 examination or dealt with on cross examination. That
20 report is hearsay. This witness is here and
21 available to testify about any and every thing that
22 may be contained in there, and that report's hearsay.
23 Number two, if I understood Mr. Mallett's
24 statements earlier, this witness was not submitted as
25 an expert and, therefore, any written report from
1 this witness is -- is strictly hearsay evidence and
2 it is -- it is the basis -- it is a report supplied
3 to us and it was the basis for material for cross
4 examination, but that doesn't necessarily make the
5 report in and of itself admissible in those areas
6 that aren't cross examined about.
7 THE COURT: Well, I sustain your objection.
8 MR. MALLETT: May I for the record have one
9 moment to take a look at a rule? I want to -- I want
10 to read the entire --
11 THE COURT: You can proffer it if you want to.
12 MR. MALLETT: I'll take a quick look at the rule
13 on completeness under-- I think, it's 106 --
14 whatever rule is on completeness about whether when
15 there's been inquiry into a part of the document. I
16 may offer it -- the rest of it as parts of it have
17 definitely been read into the record.
18 THE COURT: Well, under the rule that you're
19 talking about, you probably can go back and take the
20 report and go through -- particularly if you're
21 saying it's taken -- it's been taken out of contacts
22 -- out of context and go back and refer to and, you
23 know, question the witness about those areas. I
24 mean, I don't -- in a Rule 37 Petition I pretty well
25 can bend the rules of strict evidence and accept it.
1 I mean -- if all you're wanting it in the record for
2 is for appeal purposes, if it comes to that, I don't
3 have any problem with putting it in.
4 MR. MALLETT: And I would like to make a -- mark
5 it. It is marked for and offered into evidence as a
6 Court's exhibit. I -- I think it's helpful because
7 Mr. Turvey -- excuse me -- Mr. Davis has summarized--
8 THE COURT: If this were a trial and he had
9 objected, I probably wouldn't have let Mr. Turvey
10 testify before a jury because he's by his own
11 admission admitted that he's not an expert in any of
12 these fields. He's making, quote, educated and
13 somewhat informed guesses. A police detective of
14 twenty years is probably capable of -- of doing that.
15 MR. MALLETT: I'm not sure under that Supreme
16 Court decision that the -- Dobere (phonetic) versus
17 Dow Pharmaceuticals -- a police officer's ability to
18 testify has been --
19 THE COURT: It may not be. May not be.
20 MR. MALLETT: -- expanded considerably.
21 THE COURT: Well --
22 MR.MALLETT: But I think that since there has
23 been so much reference to what is in the report, it
24 would be easier to direct the Court's attention to
25 testimony about it by having the actual report before
1 the Court -- understanding the Court can give what
2 weight it wished to the words on paper. And on the
3 other hand, I didn't want further injure to the
4 families of these children. I think --
5 THE COURT: I'll receive it over the objection
6 of the state. I'm not sure that it's --
7 MR. MALLETT: And can we ask that it be under
9 THE COURT: Yes.
10 THE COURT REPORTER: It's already -- it was put
11 in evidence a long time' ago under seal.
12 THE COURT: One of you, I thought put it in --
13 THE COURT REPORTER: I have it as number ten.
14 THE COURT: -- back in June.
15 MR. MALLETT: It's already in?
16 THE COURT: Yeah.
17 THE COURT REPORTER: It's number ten.
18 MR. DAVIS: I think that was at a time that it
19 was identified -- I think it along with --
20 THE COURT REPORTER: But, I mean, I've got it.
21 MR. DAVIS: Okay.
22 THE COURT REPORTER: I think I've already got
23 it. It's under seal.
24 MR. MALLETT: You've already got it under seal?
25 MR. DAVIS: Okay. But at that time I don't
1 think it was actually made --
2 THE COURT REPORTER: It was an offer of proof.
3 MR. DAVIS: Offer of proof.
4 THE COURT REPORTER: And it was under seal.
5 MR. MALLETT: I think it's under seal in the
6 sense that at least as of that time, the Court wasn't
7 even going to read it or look at it.
8 THE COURT: I haven't. I haven't looked at it.
9 You all talked about it so damned much I'm kind of
10 curious though.
11 MR. MALLETT: Okay. Then I -- then my motion is
12 that for the purposes of the Court's review it be
13 under seal.
14 THE COURT: Okay. All right.
15 MR. MALLETT: That's my -- that's my motion.
16 THE COURT: It'll be under seal and I'll receive
18 MR. MALLETT: But available for your review.
19 THE COURT: Yes.
20 MR. MALLETT: Yes.
21 THE COURT REPORTER: But what are you gonna do
22 about the --
23 THE COURT: It's already in.
24 THE COURT REPORTER: You're not going to put it
25 in twice, are you?
1 MR. DAVIS: That was only a proffer, I think.
2 MR. MALLETT: It was only in as a proffer. Now
4 THE COURT: Well, I'm gonna receive it as an --
5 THE COURT REPORTER: Well, I know, but I mean,
6 it was exhibit ten and now you've got forty-four.
7 MR. MALLETT: Well, I'm gonna withdraw forty-
8 four and use ten.
9 THE COURT: We'll use ten, all right.
10 Give me forty-four to look at then.
11 MR. MALLETT: DO you want to tear forty-four off
12 of this? (HANDING TO THE COURT.)
13 THE COURT: I'll mark it out.
14 MR. MALLETT: No further questions, your Honor.
15 MR. DAVIS: Nothing further of this witness,
16 your Honor.
17 THE COURT: All right, call your next witness.
18 You may stand down and you're excused and free
19 to go.
20 THE WITNESS: Thank you.
21 (WITNESS EXITING COURTROOM.)
22 MR. MALLETT: Doctor Tom David who I may
23 retrieve, your Honor, from the jury room.
24 THE COURT: All right.
25 THOMAS DAVID
1 having been first duly sworn to speak the truth, the whole
2 truth, and nothing but the truth, then testified as follows:
3 DIRECT EXAMINATION
4 BY MR. MALLETT:
5 Q. Would you please introduce yourself to the Court -- excuse
6 me. Would you please introduce yourself to the Court?
7 A. My name is Thomas J. David.
8 Q. And how are you employed?
9 A. I'm a dentist.
10 Q. And within the field of dentistry, do you have any area of
11 speciality or special training or expertise?
12 A. Yes sir, I do.
13 Q. And what is that?
14 A. Forensic odontology or forensic dentistry.
15 Q. And are you here to testify to your examination of the
16 evidence in this case and to testify on the subject of human
17 bite marks and bite mark comparisons?
18 A. Yes, sir.
19 Q. All right. Before we get into that, let me touch briefly
20 on your qualifications.
21 How old a man are you?
22 A. Forty-seven.
23 Q. Are you single or married?
24 A. Married.
25 Q. And do you have children?
1 A. Yes.
2 Q. Tell us briefly a summary of your educational background.
3 A. I have a Bachelor of Science degree in biology from
4 Fordham University, and I have a Doctor of Dental Surgery
5 degree from Emory University.
6 Q. Do you have any post-graduate training?
7 A. I had some post-graduate training in forensic dentistry.
8 It was not a formal residency or anything of that nature, but I
9 did have some training beyond dental school.
10 Q. Do you have any board certification?
11 A. Yes, sir, I do.
12 Q. And what is that -- in what area is that board
14 A. Forensic odontology.
15 Q. Do you hold any appointments?
16 A. Yes, sir, I do.
17 Q. And would you give us three examples of appointments that
18 you hold?
19 A. I'm a consultant to the Medical Examiner's Office for the
20 State of Georgia. I also act as a member of the D-Mort team
21 for the federal government -- that is, the Department of Health
22 and Human Services -- to respond to disasters where dental
23 identifications may be necessary.
24 Q. Did we have a conversation yesterday about whether you had
25 with you a copy of your most recent curriculum vitae?
1 A. Yes.
2 Q. And what did we agree on?
3 A. I had meant to bring a current copy, which I neglected to
4 do, and had my office fax one here this mornings although it's
5 not the most current one. I think there are only two additions
6 to the C. V. that I provided you this morning.
7 Q. Subject to those additions, does the C. V. which you
8 provided me -- which was a facsimile copy -- contain an
9 accurate resume of your appointments, your professional
10 affiliations and your publications?
11 A. Yes, sir, it does.
12 Q. Let me show you what's marked as Exhibit Forty-five and
13 ask you if that is a copy of the C. W. that was faxed over here
14 from your office in Atlanta? (HANDING TO WITNESS.)
15 A. (EXAMINING.) Yes, sir.
16 MR. MALLETT: With the Court's permission, I'll
17 show it to the Prosecuting Attorney. I apologize for
18 not having had time to make a copy for them.
19 (HANDING TO MR. DAVIS.)
20 MR. DAVIS: (EXAMINING.)
21 THE COURT: All right.
22 MR. MALLETT: I would indicate that Doctor David
23 has been identified to the state as an anticipated
24 witness in the case for some time.
25 And I would move the admission of forty-five.
1 MR. DAVIS: No objection, your Honor.
2 THE COURT: All right, it may be received.
3 (PETITIONER'S EXHIBIT NUMBER FORTY-FIVE IS
4 RECEIVED IN EVIDENCE.)
5 BY MR. MALLETT:
6 Q. Let's go directly into your testimony as a forensic
7 odontologist. What is a forensic odontologist?
8 A. Odontology is an international word that is essentially
9 synonymous with dentistry.
10 Q. And how does a forensic odontologist -- how is that
11 different from the dentist my wife and I go to -- assuming he's
12 not a forensic odontologist?
13 A. Well, putting the word 'forensic" in front of any
14 specialty simply indicates that you're applying that
15 particular knowledge to legal matters.
16 Q. And when you testify with respect to your scientific or
17 professional knowledge in legal proceedings, do -- is there
18 some standard of certainty that you customarily use?
19 A. There are certain terms that are much more acceptable and
20 typically used much more often.
21 Q. And would you please tell me what terms are typically used
22 and are generally acceptable in your experience?
23 A. With respect to bite mark analysis you mean?
24 Q. Yes.
25 A. With respect to bite mark analysis, the terms in terms of
1 the strength of opinion would typically be possible, consistent
2 with, probable, and to a reasonable degree of scientific
4 Q. So if I ask you to testify today and cast your opinion
5 with reference to this expression, to a reasonable degree of
6 scientific certainty, will you be testifying in accordance with
7 how you have testified in other cases and how members of your
8 field customarily testify?
9 A. Yes, I believe so.
10 Q. All right. As a brief aside, I noticed on you resume
11 that you were on the journal-- on the editorial board of the
12 Journal of Forensic Sciences. Are you acquainted with anyone
13 in the State of Arkansas who's a member of the editorial board
14 of the Journal of Forensic Sciences?
15 A. Doctor Sturner is also a member of the editorial board of
16 the Journal of Forensic Sciences.
17 Q. And that is the Chief Medical Examiner for the State of
18 Arkansas, to your understanding?
19 A. Yes, sir.
20 Q. Let's talk about a subject that you and I visited on
21 yesterday which I will introduce as a topic -- the mechanisms
22 of biting. Can we do that for a few minutes?
23 A. Yes, sir.
24 Q. All right. What is a bite mark?
25 A. I'm trying not to be overly technical. I think one of the
1 simplest explanations is that a bite mark is a toolmark where
2 teeth are the tools.
3 Q. We all know that we have upper teeth and lower teeth.
4 Could you tell us in terms of bite mark analysis if you make
5 any distinction in the use of the upper or lower part of the
6 bite in your evaluation of a case?
7 A. Yes, sir, you do. I believe that what you're referring to
8 is what I would call the dynamics of biting. In other words,
9 exactly how the bite would occur in the human, and that is that
10 the upper teeth are fixed to the skull or the face, and that is
11 that they're going to move as does the entire head.
12 However, the lower teeth, which are part of the lower jaw
13 which is movable, can move independently of the upper teeth.
14 So you have to take that into account when you look how bite
15 marks from human teeth are created. Essentially the top teeth
16 in most instances will tend to be fixed, whereas the lower
17 teeth will tend to be moving against tissue that's already been
18 fixed with upper teeth. There are exceptions, but that's
19 typically the way you would expect the bite to occur.
20 Q. And when you're studying bites on people, what -- what
21 surface of the anatomy do you look at?
22 A. Any and all surfaces of the anatomy can be bitten. More
23 often than not, the available surfaces that are bitten
24 typically have a lot of soft tissue behind them. There may be
25 different anatomic contours, things of that nature, so that
1 distortion is something that has to be considered when you look
2 at the surface that' s being bitten.
3 Q. Let's identify variables. Well, back up.
4 Are you able to perform comparisons where you can compare
5 the bite of a known individual with marks left by an unknown
6 individual for purposes of determining whether the known
7 individual is the cause of the bite from an unknown source?
8 A. Am I able to do that?
9 Q. Yes.
10 A. Yes, within varying degrees. Essentially, the strength of
11 your opinion in a bite mark analysis is gonna be controlled by
12 two factors. The quality of the evidence that you have to
13 examine. In other words, how good a bite it is, whether your
14 evidence is actual tissue, or a photograph, or whatever it
15 might be. And then, secondly, the uniqueness of the dentition
16 of the person that you're comparing it with.
17 Q. I would like to let the Court know about what variables
18 might exist that influence the appearance of a bite on human
19 tissue. Can you tell us what variables are of concern to you?
20 A. There are a number of variables that you have to factor
21 into your own analysis. I mentioned before tissue that is readily
22 compressible. Some obvious examples of readily compressible
23 tissue would typically be the fleshy portion of an arm or a
24 leg, breasts and buttocks are typical areas that do not have
25 hard tissue behind them for the most part and tend to be fairly
1 compressible and also provides the opportunity for more
2 significant amounts of distortions in certain cases.
3 Q. Can you give an example of how the compressibility of
4 tissue might affect the appearance of a bite mark?
5 A. Yes, sir, I can.
6 Q. For example?
7 A. Well, if I were able -- if I were biting someone's arm or
8 leg, for instance, and I'm biting around tissue that's readily
9 compressible and the surface is rounded --
10 Q. Indicating the forearm?
11 A. Correct. As an example, if I were to bite into an orange
12 -- if you imagine an orange being a little bit more
13 compressible, you're biting across a rounded surface. And in
14 that case, even though I might only be able to open my mouth --
15 if you measured the vertical distance -- if I opened my mouth
16 as wide as I can and you measured from the edges of the top
17 front teeth to the edges of the bottom front teeth, an average
18 opening for an adult male would be somewhere in the
19 neighborhood of forty-five to fifty millimeters. Whereas for a
20 female, it would be slightly smaller than that.
21 But yet if I were to bite a rounded surface such as an arm
22 or a leg, it wouldn't be at all uncommon to see a much greater
23 distance between the edges of the markings of the upper and the
24 lower teeth, and that's because of the fact that biting on a
25 rounded surface with tissue that's compressible, it's much
1 easier to pull tissue into your mouth and get a distance that's
2 much further apart than I can actually open.
3 Q. Does the anatomy of the area that is bitten have anything
4 to do with influencing the appearance of a bite mark?
5 A. Yes, sir, it can, if you're biting a surface that has a
6 changing anatomic contour. In other words, if I were to bite
7 across the edges of someone's toes, for instance, well, in
8 between where the toes are the tissue drops off. So you're
9 gonna tend to have difficulty engaging all of the teeth across
10 that change in surface contour. And when you do that, it's
11 difficult to represent photographically a three-dimensional
13 In other words, if I were to photograph that even though
14 to my eye I can see that there's a depth there, when you
15 photograph it and print it on flat paper, you tend to lose some
16 of the perspective of the third dimension, and it can alter
17 what it appears to be. In other words, sometimes something
18 that's circular might look more flat or vice versa because of
19 the optical illusion created by the fact that you're printing
20 a three-dimensional perspective onto -- onto two-dimensional
22 Q. Is the reflective orientation -- is the physical position
23 one to another -- between the biter and the person being
24 bitten, is that a thing that might affect the appearance of the
25 bite mark?
l A. To a certain extent, yes, it might. You always want to
2 try to identify upper and lower teeth which tells you something
3 about the orientation of the two individuals -- whether they
4 were facing one another or whether there was some other
5 orientation because it allows you to tell whether there might
6 be anything unusual to the nature of how the bite occurred.
7 Q. And what about the relative motions, or motion, by either
8 tile person being bitten, the person doing the biting, or both?
9 Is that something that might affect the appearance of a bite
11 A. Yes, sir.
12 Q. In what respect?
13 A. Rather than seeing a bite mark that -- that tends to
14 represent only the edges of the teeth, you tend to see what are
15 called drag markings. If there is movement of either the biter
16 or the victim -- probably more often it's the victim -- but
17 essentially if either of the two or both are moving at the time
18 that the bite is inflicted, rather than the edges of the teeth
19 being able to imprint, they're not going to be able to hold the
20 tissue for very long, and as it's moved away, you get drag
22 Q. In this case, did we provide you with a transcription of
23 trial testimony by a Doctor Peretti which in -- which in part
24 he testified to observations of marks on the forehead or on the
25 face of a young victim named Stevie Branch?
1 A. Yes, sir, I did receive excerpted portions of transcripts
2 that were identified as that -- as being Doctor Peretti.
3 Q. And did you read and study those transcripts?
4 A. The excerpted portions concerning Doctor Peretti, yes, I
6 Q. And were you provided photographs -- colored photographs
7 -- of the autopsy photo -- of the autopsy -- colored copies of
8 the autopsy photographs on which that testimony was based?
9 A. Yes, sir.
10 MR. MALLETT: If I may approach the bench with
11 the Prosecuting Attorney very briefly, your Honor?
12 (THE FOLLOWING DISCUSSION WAS HELD AT THE
14 MR. MALLETT: I just want to indicate to the
15 Court that we do have this gruesome blow-up of a
16 photograph of Stevie Branch, and it's necessary that
17 he testify from it.
18 THE COURT: Okay.
19 MR. MALLETT: I just wanted to let you know
20 MR. DAVIS: You might let anybody in the
21 audience know that.
23 (RETURN TO OPEN COURT.)
24 THE COURT: All right, if there's anybody in
25 the audience that doesn't care to view an enlarged
1 photograph of one of the victims, now would be a
2 good time for you to leave.
3 MR. MALLETT. As a foundation, if I may, your
4 Honor, I would like to read from page ten fifty-five
5 beginning at page (sic) twenty-five of the transcript
6 of the proceedings which is the line at the bottom of
7 the page ten fifty-five over to line sixteen of page
8 ten fifty-six, which is a short portion -- less than
9 one full page.
10 THE COURT: All right, go ahead.
11 MR. MALLETT: So I can ask Doctor -- Doctor
12 David if this is within the materials that he read.
13 BY MR. MALLETT:
14 Q. The -- Doctor Peretti is providing a narrative answer on
15 interrogation. He says as follows:
16 "State's Exhibit Seventy-one B is a close-up. In this
17 photograph you can also see the scraping, and we can see the
18 gouging type injuries here. What is important to note is that
19 on the forehead region, we have an abrasion or a scrape that
20 left a pattern. And inside the pattern you can see it's almost
21 like a dome shape. It has this little area of square abrasion
22 inside here right on top of the forehead. And that injury, you
23 see, it's typical of a belt injury. The belt has a little
24 buckle, and that buckle has that little one that goes back and
25 forth, left and right, and the base of the latch, and that type
l of injury we typically see with belts. And, also, if you look
2 very closely, you can see on the face overlying the area of the
3 abrasions, you notice a pattern here, but a lot of them are
4 obscured by the scraping."
5 That is what I will refer to as the belt buckle testimony
6 by Doctor Peretti. Is that the testi -- within the testimony
7 that you reviewed in preparation of -- in your study of this
9 A. Yes, sir.
10 Q. I'm gonna show you what was referred to in the testimony
11 as Seventy-one A and ask if you have a smaller photograph of
12 this same picture? (HANDING TO WITNESS.)
13 A. (EXAMINING.) Yes, sir, I do.
14 MR. MALLETT: Could we have that marked for a
15 Court's exhibit -- because I think it's easier that
16 the smaller photograph travel with the record than
17 the large demonstrative exhibit.
18 THE COURT: All right.
19 MR. MALLETT: I'd like to mark that as exhibit
20 next and based on the foundation move it into
21 evidence as the exhibit from which he will testify
22 which, I guess, will be forty-six in these
23 proceedings -- seventy-one A in the trial.
24 (PETITIONER'S EXHIBIT NUMBER FORTY-SIX IS
25 RECEIVED IN EVIDENCE.)
1 MR. MALLETT: And I'm not quite sure about how
2 to best orient the Court on this. What I propose to
3 do is for me to hold the admitted exhibit and ask
4 that you would show this to his Honor which --
5 Your Honor, is that large enough that you can
6 see it?
7 THE COURT: Yeah, fine.
8 MR. MALLETT: Okay.
9 BY MR. MALLETT:
10 Q. Did you consider the description of a mark on the face of
11 Mr. Branch as being a belt buckle?
12 A. Yes, sir, I
13 Q. And relative to that consideration, what part or portion
14 of the photograph did you examine?
15 A. The portion of the photograph that I examined with respect
16 to Doctor Peretti's description of a belt buckle had to do with
17 his description of the pattern injury on the forehead. That
18 being this area. (INDICATING.)
19 Q. Did you perform any examinations -- well, first, when you
20 looked at that, did that look like a belt buckle mark to you?
21 A. I don't consider myself an expert in belt
22 buckle markings. My initial impression was probably not, but
23 in view of the fact that I don't consider myself an expert in
24 belt buckle markings, I proceeded to conduct some testing of my
25 own to determine the possi -- the probability that a belt and/
1 or a belt buckle could have made that type of marking.
2 Q. I don't think you need to be holding -- you, need to be
3 picture for the Judge in order to --
3 THE COURT: I -- I can see it fine. That's all
6 BY MR. MALLETT:
7 Q. You need to be holding it to tell the Judge about the
8 testing that you did to test the hypothesis that it was a belt
9 buckle mark.
10 A. At certain points I might. I don't know that I need to do
11 that the entire way through.
12 Q. All right. Well, please, if you will, and if the Court
13 Will indulge us, with some narrative, explain what testing you
14 did to test the belt buckle hypothesis.
15 A. What I did to test the belt buckle hypothesis was to,
16 first, collect a series of belts. Because of the fact that the
17 marking in question is relatively circular rather than square
18 in nature, I chose belts that had circular buckles rather than
19 square buckles.
20 And the first thing that I wanted to do was that based on
21 Doctor Peretti's testimony that he felt that the -- what I
22 would call the pin or the latch of the belt was also a marking
23 -- my interpretation of his testimony was that this mark in the
24 center was created by the latch of the belt or what I would
25 call the pin of the belt.
1 Q. Now, in order -- just so we can demonstrate -- I've taken
2 my belt off, and I'd like for you to verbalize for the record
3 what you mean as the pin of the belt.
4 Is there anything about my belt that makes-it unusual or
5 special in any way?
5 A. No, it's square rather than circular, and I said that I
7 deliberately chose circular type of belt buckles because that's
8 the general shape of this type of injury.
9 Q. All right. What --
10 A. So I deliberately avoided square buckles for that reason.
11 Q. That's fine. What's the pin portion that you're
12 testifying about?
13 A. The pin portion or what you might also call the latch
14 portion is what engages the holes in the belt at the end. So
15 the first thing I discovered in looking at it is that if this
16 portion of the injury was made by the latch or the pin of the
17 belt, that the only way for that portion of the belt to be able
18 to mark would be if the belt itself -- what I would call the
19 outer portion of the belt, or the part that you would see if
20 you were wearing the belt -- were facing the skin.
21 Q. In other words, if the inside of the belt or the portion
22 that you would not see if you were wearing it was facing the
23 skin, the pin could not mark because the periphery of the belt
24 buckle steps the pin. So you can only create marking of the
25 in of the belt buckle if the outer surface of the belt is
1 facing the skin.
2 Q. Continue.
3 A. And based on that I tried to press two different belt
4 buckles -- a smaller circular type of buckle and a larger --
5 circular type of buckle -- both the outer and the inner
6 surface -- but more particularly with respect to the outer
7 surface -- pressed it into a piece a wax to see what type of
8 marking the belt buckle could create.
9 And the initial problem that I had was that because of the
10 fact that the latch or the pin protrudes further that the belt
11 buckle, once you get the pin to, it's very difficult to
12 get the edge of the belt buckle itself to mark because the pin
13 protrudes out further than the buckle itself. So you really
14 have to press hard to get anything beyond the pin to mark at
16 And, secondly, the end of the pin -- what Doctor Peretti
17 refers to as this central marking -- I found it virtually
18 impossible to get the end of the pin to mark that far away from
19 the outer edge of what he felt was the buck -- buckle.
20 Q. I -- I -- I -- I want to ask you to hesitate in one way.
21 Judge Burnett's the person who needs to see the evidence. I
22 know that in other cases you've probably testified to a jury.
23 We don't get this jury. This is the news and attorneys and law
24 enforcement but if you could direct your attention to Judge
25 Burnett, I think it would be more helpful -- and, excuse me.
1 A. All right. What I'm -- what I'm talking about is the fact
2 that the outer edge of the -- of the belt buckle with the pin
3 being the most prominent portion, if you press that into wax or
4 if you were to do it with skin, but it's easier to not press
5 hard enough to create an injury, the pin or the latch is the
6 first thing that marks because it sticks out further than the
7 edges of the buckle itself. And, therefore, it's difficult to
8 get the edges of a buckle to actually mark because the pin
9 takes up so much of the room when you first contact be the
10 surface. You have to press extremely hard to get any marking
11 of the buckle itself.
12 And yet we know from what I testified to earlier that if
13 you turn it the other way so that the pin doesn't block it,
14 that there's no way to make the pin mark because the buckle
15 blocks it. So the only way to allow the pin to mark is to turn
16 it this way, but yet the problem that you get is that it's
17 virtually impossible to get the buckle to mark if the pin
19 And, secondly, the space that -- that you see in between
20 the -- the outer edge of that marking and the center pin or
21 latch marking is separated by a fairly substantial distance and
22 if you were to swing a belt, the pin is going to fall to the
23 same periphery as the belt buckle. The only way that I could
24 get the pin to mark independently of the belt buckle to move it
25 out of the way would be to literally hold my fingers -- hold
1 the pin with my fingers and press it in -- which is typically
2 not the way that someone that is using a belt buckle as a
3 weapon would ever hold it.
4 Q. After you examined human belt --
5 MR. MALLETT: If I may retrieve my belt before
6 it's too late, your Honor?
7 BY MR. MALLETT:
8 Q. After you examined the belts that you collected to make a
9 determination whether you could create a mark within a mark
10 using rounded belt buckles to conform to Judge (sic) Peretti's
11 testimony -- excuse me -- to Doctor Peretti's testimony -- I
12 didn't mean to elevate him -- to conform to Doctor Peretti's
13 testimony that this was the mark of a belt buckle? After you
14 performed your own examinations and evaluations with the belt
15 buckles that you collected, did you make an effort to perform
16 experiments with wax impressions to see what sort of marks that
17 you could make using these belt buckles?
18 A. Yes, sir, I did.
19 Q. Now, is the use of wax impressions common or uncommon in
20 the field of dentistry and odontology?
21 A. It's relatively common.
22 Q. All right. Tell us what you did with reference to making
23 wax impressions with the belts with which you were making or
24 conducting your experiments.
25 A. Wax is commonly used in forensic dentistry and bite mark
1 analysis because it provides an opportunity to press an object
2 -- most often teeth -- into something that is somewhat
3 compressible as is skin -- obviously to varying degrees
4 depending on the anatomy -- but it is compressible and you can
5 imprint the edges of the surface. So it is used fairly
7 Q. Did you make an effort to make a photographic recording of
8 the results of your experiments using belt buckles to make wax
10 A. Yes, sir.
11 Q. Do you have those with you today?
12 A. Yes, sir.
13 Q. May I see them, please?
14 A. (HANDING TO MR. MALLETT.)
15 Q. (EXAMINING.) Before I have these marked, will you tell me
16 if these separately -- how these are separately identified?
17 A. There's a scale in each of the photographs so that you can
18 see an actual dimensional comparison if you want. However,
19 these are not one-to-one photographs. In other words, this is
20 not an actual dimen -- an accurate dimensional photograph but
21 it -- but by using the scale, you could produce an actual size
23 Q. So they are in proportion to the actual dimensional models
24 from which the photographs were taken? They're -- they're --
25 they're in the same proportions as the wax impressions that you
1 used in preparing the photographs?
2 A. No, they are not. They're somewhat oversized.
3 Q. All right.
4 A. But the scale would permit you to produce an actual size
6 Q. Very well.
7 MR. MALLETT: With that understanding, could we
8 have these marked as the next four exhibits, your
10 THE COURT: All right, they may be received
11 without objection.
12 (PETITIONER'S EXHIBITS NUMBER FORTY-SEVEN,
13 FORTY-EIGHT, FORTY-NINE AND FIFTY ARE RECEIVED IN
15 MR. MALLETT: Could we approach the bench very
18 briefly while we're marking these?
17 (THE FOLLOWING DISCUSSION WAS HELD AT THE
19 MR. MALLETT: I'm gonna be asking the Court to
20 look at some very, very small detail in these
21 photographs. I don't mean to be testing your
22 eyesight. We can take the testimony and you could
23 with your motes of the testimony review them at a
24 later time, or I can ask the Court's permission to
25 have the witness briefly just for the comparisons
1 join you here or ask you to consider going where he
3 THE COURT: Well, I'll talk over there and look
4 at it, yeah.
5 MR. MALLETT: -- do it that way.
6 MR. DAVIS: Well, I'd appreciate it if you'd do
7 up there so that we could catch it on videotape as
8 well as possible.
9 THE COURT: Okay.
10 BY MR. MALLETT:
11 Q. Doctor David, I'm gonna give you what's been admitted as
12 Petitioner's Exhibits Forty-seven, Forty-eight, Forty-nine, and
13 fifty and we will wait just a moment --- I'm gonna ask you if
14 you would -- Judge Burnett's gonna step over here and join you
15 -- and ask if you would narrate for the record but indicate
16 with your fingers for Judge Burnett's assistance and for Mr.
17 Davis' assistance to what you see and I'll step back 'cause
18 I've looked at these.
19 A. Okay. I'm gonna need to take my glasses off because I
20 can't see very well up close.
21 Q. Tell with respect to -- to each exhibit what you did to
22 create the exhibit and then what is depicted within the
23 exhibit. And if you will, identify the exhibit to which you're
24 referring by number.
25 A. I'm going to -- exhibits number forty-seven and fifty go
1 together and the piece of wax has a marker on it that says, B B
2 Dash I and B B Dash O -- which stands for belt buckle inside
3 and belt buckle outside. I testified earlier that although the
4 only way you can get the pin to mark is to use the outside of
5 the belt buckle, I also wanted to show what would happen if you
6 used the inside of the belt buckle to try to create a marking.
7 Go the B B-I would be the marking that you're gonna get when
8 you use the inside of the belt buckle.
9 And what you're looking at here (INDICATING) is this is
10 the surface of the belt buckle that's actually marking into the
11 wax, and the only representation of the pin or latch is the
12 base but not the edge of the latch which will mark down here at
13 the bottom opposite where the buckle itself will mark. And
14 that's Exhibit Forty-seven.
15 Exhibit Number Fifty is the outer surface of the same
16 belt. And now what you're seeing is that the most prominent
17 marking that you see, as I testified earlier, is the -- the pin
18 or the latch itself -- the outer edge which would contact the
19 periphery of the belt buckle itself. And in the area where the
20 pin latches of the belt buckle, you can see that there's no
21 marking of the edge of the belt buckle at all. By rotating the
22 belt buckle sideways, I could get some registration of the
23 sides of the buckle. But essentially what I testified to
24 earlier is that when the pin marks, it has enough depth to
25 prevent the edge of the belt buckle from marking in the same
2 In going to the next two exhibits, this is essentially a
3 larger belt. Both of them are relatively circular in nature,
4 but' it's simply a larger belt that's being used. And, again, B
5 B-I on Exhibit Number Forty-nine would be the inner surface of
6 the belt buckle and, again, you can see that you can get a
7 registration of the outer edge of the buckle and the only place
8 that the pin registers is down at the base, not out at the edge
9 where the belt buckle itself marks, but the Opposite end of the
10 pin or latch.
11 And then when you look at Exhibit Forty-eight, which is
12 the outer surface of the belt buckle, again, you see that the
13 pin itself is the only thing that marks very much at all.
14 There's a very faint outline of the buckle itself, but the only
15 thing that's very prominent in the marking is the end of the
16 pin or latch where it contacts the belt buckle.
17 Q. So in performing the experiments with wax impressions and
18 belt buckles, did you produce any circular shapes of the kind
19 that we see on what I will refer to as the autopsy photograph
20 with a star shaped mark square in the middle?
21 A. No, sir.
22 Q. Okay.
23 THE COURT: Did I understand you to say that
24 you pressed the buckle against the wax to make the
1 THE WITNESS: Yes, your Honor.
2 THE COURT: Just with the pressure from your
4 THE WITNESS: Correct.
5 THE COURT: Did you attempt in any way to sling
6 the belt in a striking motion to produce an image or
7 -- or a impression?
8 THE WITNESS: No, I didn't because I was afraid
9 it would break the wax. Swinging that hard would
10 have probably destroyed the substrait that I was
11 using. But I -- I did consider that possibility, and
12 my consideration was that if you swing it very hard,
13 you're gonna have even less opportunity for
14 registration of anything than by pressing it in.
15 That the maximum opportunity for impression of the
16 most belt buckle surface possible is by holding it
17 and pressing it. By swinging it, you're gonna have
18 even less opportunity because the time factor is so
20 THE COURT: What was the composition of the wax?
21 Was it dental wax for making impressions? Was it
22 wax like hard candle wax?
23 THE WITNESS: It was what's called --
24 THE COURT: And what was its comparison to -- to
25 human tissue?
1 THE WITNESS: It was what's called base plate
2 wax which is a common wax used in dentistry. It's
3 often used for bite mark comparisons.
4 THE COURT: Okay.
5 BY MR. MALLETT:
6 Q. And did you consider the effect of centrifugal force on
7 the swinging of a belt and how that would affect the relative
8 likelihood of the pin flying straight against the square or
9 rounded surface of the belt itself?
10 A. Well, I'm not a physicist, but obviously the faster you
11 swing the belt the more that the pin is gonna tend to be
12 pressed against the surface of the buckle.
13 Q. Did you also give consideration to the possibility that on
14 what we will call the autopsy photo -- Exhibit Forty-six --
15 there were bite marks?
16 A. Yes, sir, I did.
17 Q. Did you see -- did you form an opinion within a reasonable
18 degree of scientific certainty whether you observed bite marks
19 on what is in evidence as Petitioner's Forty-six?
20 A. Did I form an opinion? Yes.
21 Q. And what was that opinion?
22 A. That I believed that there was a human bite mark on the
23 left forehead in the exhibit that you've presented to me.
24 Q. Tell -- tell us if you would, please, what are the
25 characteristics of human teeth that you looked for in examining
1 Petitioner's Forty-six?
2 A. In looking for characteristics that are consistent with
3 the human bite mark, there are a number of things that you
4 would typically expect to see. The most obvious is that if
5 both arches are represented you tend to see two circular or
6 semicircular marks which tend to face one another which would
7 be a representation of upper and lower teeth. So you would
8 tend to look for something of that nature which was present in
9 this particular case.
10 Q. Did you take into consideration as you were doing your
11 examination the variables about which you have already given
13 A. Yes, sir, I did.
14 Q. What is the role, if any, of the variable of
15 compressibility of the tissue in examining Petitioner's Forty-
16 six for the presence or absence of a human bite mark?
17 A. I think that there's a very significant role for
18 consideration of the anatomy of the area in this particular
20 Q. Would you please explain that answer?
21 A. First of all, I have to start out by explaining that the
22 tissue contours that are represented in the patterned injury
23 that we're looking at, which I believe is a bite mark, are
24 across two different tissue contours. The top portion of this
25 injury is on the forehead of the victim, and that particular
1 surface contour is very flat relatively speaking compared to
2 the rest of the human anatomy, has a relatively thin layer of
3 soft tissue with bone behind it. And the importance of that is
4 that when you have bone behind a -- a small layer of soft
5 tissue access a flat surface, it provides you the most
6 opportunity that you will probably ever see on the human
7 anatomy for cookie cutter imprint of the edge of teeth. In
8 other words, it's gonna minimize distortion down about as far
9 as you can get for human bite marks on skin.
10 Q. Are you referring to the upper semicircular mark on the
11 forehead on the right -- victim's right side in Petitioner's
13 A. No, victim's left side.
14 Q. Victim's left side. Excuse me. All right. And what
15 observations did you make about the marks corresponding to that
16 on the lower portion in the vicinity of the eyebrow?
17 A. This is an entirely different tissue contour. The lower
18 portion of the mark appears somewhat flat compared to the upper
19 portion of the mark, but more importantly, the anatomy of the
20 area that's being registered begins on the -- on the mid-line
21 aspect of the left orbit or eye socket, if you will. And then
22 it tends to become very concave very quickly on the underside
23 of the eyebrow -- right in this area. (INDICATING.)
24 So we have two totally different anatomic contours that
25 are being marked. The top one affords an opportunity for very
1 little distortion, whereas the lower portion of the mark
2 because of the changing tissue contour provides much more
3 opportunity for distortion.
4 Q. That is, distortion in the photograph or distortion in the
5 making of the bite mark?
6 A. Both.
7 Q. What -- how did you -- did -- did you make a determination
8 about -- within a reasonable degree of scientific certainty --
9 about the relative orientation of the victim and the
10 perpetrator when that bite mark was made?
11 A. Yes, sir, I did.
12 Q. And what was that?
13 A. I believe that the upper portion of the mark is
14 representative of upper teeth, and the lower portion of the
15 mark is representative of lower teeth, and that would mean that
16 the orientation of the biter and the victim is that they were
17 facing one another.
18 Q. And what is the basis for your opinion that they were face
19 to face, stare to stare, or at least both vertical -- upper
20 forehead, lower teeth to lower portion of bite
22 A. Primarily based on the -- the measured widths of injuries
23 in the marking. Lower front teeth are narrower than upper
24 front teeth and therefore, you tend to want to see marking
25 patterns that are smaller with respect to the lower teeth. So
1 that when you look at the lower half of the marking, the scale
2 is down here (INDICATING). An average width on a lower incisor
3 -- which is a front tooth -- is gonna be somewhere in the
4 neighborhood of four and a half to six and a half millimeters.
5 Whereas the -- the widths on upper teeth -- particularly upper
6 central incisors -- is gonna be in the range of eight to ten
7 millimeters -- much wider. So when you look at a -- at a width
8 up here (INDICATING) that's about eight to ten millimeters,
9 that clearly tells you you're not looking at a registration
10 from a lower tooth. It's much too wide.
11 Q. Now what is it in the photograph that assists you in
12 measuring the relative width of the bite marks?
13 A. I'm sorry?
14 Q. What do you see in that photograph that helps you in
15 measuring the size of the bite marks?
16 A. On the lower half of the injury you can measure the width
17 of these markings here and here (INDICATING) and then if you
18 look at the -- and measure the space in between it's very
19 consistent with the same relative measurement.
20 SPECTATOR: See what you did to my son? I'm
21 make sure you suffer.
22 (BAILIFFS REMOVING SPECTATOR.)
23 THE COURT: All right, let's continue. Go
25 BY MR. MALLETT:
1 Q. Well, what I'm referring to is at the bottom of the
2 photograph. There's seems to be a ruler. Can you tell me what
3 role that took -- what role that marker played in your
5 A. That's what allowed us to enlarge the photograph that's
6 been entered into evidence into an actual size photograph. In
7 other words, when you look at the photograph that's been
8 entered into evidence and you look at the scale in the
9 photograph, one centimeter on the scale should measure almost
10 exactly one centimeter in the photograph.
11 Q. And that is a ruler that was placed there when -- to your
13 A. Well, I don't know exactly when, but immediately before
14 the photograph was taken I would assume.
15 Q. Incidentally, in comparing photographs and examining
16 photographs, did you see any other photograph in which a
17 marking with great similarity to the mark in the center of what
18 you have identified as a bite mark appears? Did that little
19 star shape mark appear in any other photographs?
20 A. Yes, sir, I believe that it does.
21 Q. Can you show me what --- what photograph that is?
22 A. (EXAMINING.)
23 THE COURT: Are you getting ready to ask him
24 how he accounts for the star shape mark in the
25 center? Is that --
1 MR. MALLETT: Yes, sir.
2 THE COURT: 'Cause if you're not going to, I am.
3 MR. MALLETT: I sure am.
4 THE COURT: All right.
5 MR. MALLETT: Can we mark this for
6 identification, your Honor?
7 THE COURT: Yes.
8 (PETITIONER'S EXHIBIT NUMBER FIFTY-ONE IS MARKED
9 FOR IDENTIFICATION.)
10 MR. MALLETT: I'll show the Prosecuting Attorney
11 what's marked as fifty-one. (BANDING TO MR. DAVIS.)
12 MR. DAVIS: (EXAMINING.)
13 MR. MALLETT: Move the admission of number
14 fifty-one, your Honor.
15 THE COURT: All right, it may be received.
16 (PETITIONER'S EXHIBIT NUMBER FIFTY-ONE IS
17 RECEIVED IN EVIDENCE.)
18 THE COURT: I think all of those photographs
19 were previously received in the trial, weren't they?
20 MR. DAVIS: For the most part they were, your
21 Honor. I'd have to go back -- we have the
22 photographs and exhibits from the trial present, and
23 I'll have to go back and make sure that one was.
24 THE COURT: Well, okay. I'll receive it for
25 this purpose anyway.
1 MR. MALLETT: For purpose of the record of these
3 THE COURT: Yeah.
4 BY MR. MALLETT:
5 Q. I'm showing you what's marked as fifty-one. Could you
6 hold it up where the Judge can see it and tell the Judge
7 whether you see in that photograph something with a great
8 degree of similarity what we see in the center of what you've
9 identified as the bite mark on the autopsy photograph?
10 (HANDING TO WITNESS.)
11 A. (COMPLYING.) Yes. This particular photograph was
12 received later then the original submission of photographs to
13 me, and it was one of three boxes of photographs, one box being
14 for each victim, and this was in the box with Steven Branch,
15 and I believe the autopsy number is registered on that scale.
16 But if you look inside -- I believe it's the left ear --
17 you see a similar marking to the mark that you see in the
18 center of what I believe to be a bite mark on the left forehead
19 of Steven Branch. The only difference that I see that's
20 noticeable is that there does not appear to be as much
21 hemorrhage on the mark on the inside of the ear as compared to
22 on the forehead, and I would account for that by virtue of the
23 fact that the cartilage in the ear has less blood supply and,
24 therefore, will tend not bleed as much.
25 Q. And is that also measured or photographed along with a
1 ruler indicated by MFA 3-30-93?
2 A. Yes, sir.
3 Q. With a yellow stamp with the letters "HVP" on it?
4 A. Yes, it is.
5 Q. Indicating that at least the same tool vas used when these
6 two photographs were taken?
7 A. You mean the same scale?
8 Q. The same scale.
9 A. It certainly appears that way, yes.
10 Q. And do you see any evidence of a bite mark in the
11 photograph which contains the star shaped indication in
12 Petitioner's Fifty-one?
13 A. I don't see any patterned injury that is even remotely
14 like the patterned injury that I believe is a bite mark on the
15 left forehead of Steven Branch.
16 Q. Well, then are you able to tell the Judge within a
17 reasonable degree of scientific certainty the source of the --
18 of the -- what I will call the star marking -- one of which we
19 see in forty-six and another which we see here on fifty-one?
20 A. I don't know that I can tell you the exact object that
21 made it, but I do not believe that the star - whatever made
22 the star marking is connected to the bite mark itself. I think
23 we're talking about independent markings. And the basis for
24 that is the fact that if the -- if the same object made the
25 patterned injury that I call a bite mark that also has the star
1 marking in the center, then you would expect to see some
2 remnants of the same type of patterned injury surrounding the
3 star mark on the inside of the ear, and we see no evidence of
4 that whatsoever. So I believe these were independent
6 Q. So if the star marking in the ear was made with a belt,
7 then you'd see some remnants of the remainder of the belt --
8 if it was a circular belt -- in fifty-one?
9 A. I believe so, yes.
10 Q. Indicating that it may be that the circular mark found in
11 the center of forty-six and in the ear on fifty-one may have
12 been put there at a different time or by a different mechanism
13 than made -- what you identified as a bite mark?
14 A. I think they were made at a different time, not
15 necessarily tremendously far apart, but I believe that they
16 were made with different objects.
17 MR. MALLETT: Can we take a short break, your
19 THE COURT: Yes. Just a minute.
20 Can these gentlemen -- are either of you gonna
21 call these gentlemen back? They -- I subjected them
22 to the rule but if you're not gonna call 'em, I'm
23 'gonna let 'em come in.
24 MR. DAVIS: I may call them at some point, your
25 Honor. I -- I don't know -- I can't anticipate
1 what's gonna come out. If we get into areas that
2 involve what they were involved in, then I'll
3 certainly have to ask 'em to be excused. I don't
4 want to get prohibited from not being able to call
5 them because they were allowed to sit in.
6 THE COURT: I'll have to apply the rule unless
7 you're willing to waive the rule to 'em.
8 MR. MALLETT: I'm certainly willing to waive the
9 rule. I have already forecast a possibility that
10 with respect to a certain part of the testimony we
11 may be putting on tomorrow that I might ask that they
12 not listen to that testimony on a single subject.
13 But as to this subject matter, I would have no
14 questions of them and no objection to them hearing
15 the testimony.
16 THE COURT: Or any objection to the state
17 calling 'em to rebut other matters that you raise?
18 MR. MALLETT: No, if they -- if they -- no, if
19 they want to call the movie makers to testify in
20 rebuttal to the dentist, that -- they may do that and
21 I won't object to it.
22 THE COURT: All right. All right, you can have
23 a seat then under those conditions.
24 All right, a ten minute recess.
1 (RETURN TO OPEN COURT.)
2 THE COURT: All right.
3 BY MR. MALLETT:
4 Q. Doctor David, to begin after the recess, and before we
5 begin discussing comparisons that you may have made in his case
6 further, please -- will you please tell Judge Burnett the
7 protocol or procedures that you customarily -- routine and
8 practice -- go through at the crime laboratory when you are
9 presented with a case involving potential bite mark evidence?
10 A. In my capacity as a consultant in forensic odontologist
11 in the state crime lab, I am called periodically by the medical
12 examiners when they are viewing bodies that come in for autopsy
13 and if they believe that there's a patterned injury which might
14 be a bite mark, then I will typically get contacted and asked
15 to come out to examine the injury in question to try to come to
16 a more scientific conclusion about whether the patterned injury
17 might indeed be a bite mark. And there is a relatively
18 standard protocol in terms of how that examination is
20 Q. And what is that protocol?
21 A. Generally speaking, the first order of business whether it
22 occurs at the scene or at the morgue -- and usually this will
23 occur before I even get there -- and that is that the area in
24 question is swabbed for the presence of saliva.
25 Q. Do you -- did you see any indication in the autopsy report
1 and testimony and other materials provided you in this case
2 whether the/site was swabbed for saliva?
5 A. From the information that I reviewed, there was no
6 indication at all that the area in question was swabbed for
6 Q. Would it affect a decision on your part whether to swab a
7 site for saliva to be assured that the bodies in the morgue had
8 been found under water?
9 A. I'm sorry. Would you repeat the question?
10 Q. If you -- if you were told at the crime lab in a -- in a
11 case that you were examining bodies for potential bite marks
12 and those bodies had been recovered from under water, would
13 that affect your determination whether to swab for saliva?
14 A. No.
15 Q. Explain.
16 A. I have had a personal experience with respect to a
17 positive salivary amylase test, and I am aware of another case
18 of another forensic odontologist where salivary swabbing still
19 yielded a positive result despite the fact that the victim had
20 been in water. In my particular case, there was blood over an
21 area that was bitten, and when you swab an area initially to
22 determine whether it might be a bite mark, you're looking for
23 the presence of an enzyme called amylase and there is blood
24 amylase as well as salivary amylase. In this particular case
25 that I recall, a victim was stabbed in the chest and had a bite
1 mark in the same area where there was hemorrhage dried on the
2 skin and I asked the medical examiner whether or not the area
3 was swabbed and he said, yeah, it was, but there was blood and
4 I don't think we're gonna get anything. And, lo and behold, he
5 called me back -- I don't know how many days later -- but he
6 said, I don't believe it, but it came back positive for
7 salivary amylase.
8 So I know that there are instances in which skin surfaces
9 can be contaminated or otherwise emerged in liquids which you
10 might expect would wash away any evidence despite the fact that
11 that was not the case.
12 Q. So the protocol where there is a suspicion or potential
13 for bite mark evidence includes a salivary swab and what other
15 A. That would be the initial step and, like I said,
16 typically, that would occur before I got there. By the time I
17 get there, I would usually ask them, have you swabbed the area
18 and they will say, yes, we have.
19 The second order of business is going to be to photograph
20 the area -- both black and white and color photography -- and
21 part of my standard protocol is to also take ultraviolet
22 photographs to see whether there's a difference in the
23 appearance of the injury pattern under ultraviolet light as
24 compared to visible light.
25 The third step is after swabbing and photographs are
1 finished, if there is any perception of depth to the injury.
2 In other words, if there are indentations where the markings in
3 the skin are, then in that instance an impression will be taken
4 of the patterned injury itself to determine whether there are
5 three-dimensional characteristics that might later be compared.
6 And finally, once a determination is made about an
7 impression, the tissue will usually be excised and preserved
8 for future analysis.
9 Q. Brief digression. You have testified to being called as a
10 consultant to the state crime lab. Do you mean to indicate
11 that in your work you look at cases on behalf of -- on the
12 request of the state and prosecution authorities as well as
13 defense authorities -- as well as defense counsel -- as in this
15 A. Yes, sir.
16 Q. Is there some rough way to estimate the percentage of
17 cases you're involved in in which you are invited to become
18 involved by the prosecution as distinguished from invited to be
19 involved by the defense?
20 A. You're speaking of criminal cases?
21 Q. With criminal cases, how would that roughly break down?
22 A. I don't know that I could give you an exact percentage,
23 but I would say predominantly my involvement is usually on
24 behalf of the prosecution.
25 Q. Within the field of odontology, is it possible to say that
1 there is a distinct or classical or standard description of a
2 human bite mark?
3 A. That may be an oversimplification, but there are certain
4 characteristics that you would like to see in terms of a
5 patterned injury that is representative of the human bite mark.
6 Q. What are the primary characteristics that you look for?
7 And, if you will, if you will do these one at a time and tell
8 me whether you see these characteristics in the autopsy
9 photograph that is Petitioner's Forty-six.
10 A. The first thing that I would expect to see in a patterned
11 injury that's representative of a human bite mark is that you
12 would like to see circular or semicircular patterned injuries
13 that tend to face one another as you see in this case. The
14 bottom half of this is --
15 Q. You're exhibiting to Judge Burnett now?
16 A. Correct. You would expect to see circular or semicircular
17 markings that -- that tend to face one another as we see in
18 this case. This is somewhat flatter than the top portion, but
19 you could easily see how it could be representative as circular
20 or semicircular in nature, and they do tend to face one
22 Q. What is your explanation for the reason that the markings
23 on the lower portion in the photograph do not appear to be so
24 semicircular as the markings on the top?
25 A. I think there's two possible explanations for that.
1 Number one, as I alluded to earlier, when you photograph an
2 injury across a changing anatomic contour and you try to
3 represent the third dimension on a flat piece of photographic
4 paper, it tends to become somewhat distorted. So I think that
5 might account for some of the flattening.
6 And I think the other thing that might also account for
7 some of the flattening is the marking on the contour itself
8 because the tissue contour is not even all the way across. If
9 you mark on a -- on a different contour, it's gonna tend to
10 also crests the opportunity for flattening it out because
11 you're not marking on -- on a square -- or a flat surface all
12 the way across.
13 Q. Speaking of the tissue contour, from the edge of the eye
14 socket on the edge of the eyebrow at the center and across --
15 below the eyebrow and across the eye socket on the lower
16 portion, is that what you're indicating toward?
17 A. I think -- I think you got a little bit ahead of me.
18 Q. All right. I'm trying -- I'm trying to let the record
19 reflect where on forty-six you're indicating the contours of
20 the face influence the two-dimensional --
21 A. Oh.
22 Q. -- depiction in the photograph.
23 A. Oh, okay. I'm sorry. I didn't understand what you meant
24 If we look at the lower half of the patterned injury,
25 that's the portion of the injury that I'm referring to, and it
1 would begin toward the mid-line right -- right around the --
2 the brow region -- the top of the nose right where the eyebrow
3 begins in the mid-line. And then it runs in a somewhat flat
4 contour across the inner aspect of the top of the eye socket or
5 the orbit.
6 Q. After locking for, or in addition to looking for an opposing
7 semicircular mark, what is another aspect in the classical
8 description of a human bite mark?
9 A. You also tend to look for irregular interrupted markings
10 within those circles or semicircles.
11 Q. Do you see those in that photograph?
12 A. Yes, sir, we do. What I mean by irregular and interrupted
13 is that -- is that there's not a line that is uninterrupted all
14 the way across and that the interruptions themselves are not in
15 regular patterns. For instance, a pendant for a necklace that
16 might create a circular or semicircular marking that might
17 mimic a bite mark, you're gonna tend to see a pattern that's
18 repeated in the edges of the pendant on the necklace. So if
19 you see regular interrupted markings -- well, teeth don't have
20 all the same dimension all the way across top and bottom. So
21 you tend to see irregular interrupted markings.
22 Q. Do all the same teeth making a bite mark cause a characteristic
23 mark so that when the bite is made, all the teeth involved in
24 the bite leave a mark?
25 A. There are times that all of the teeth involved may not
2 Q. For what reason?
3 A. For a variety of reasons. The tissue contour itself,
4 whether they're on the same plane with the biting edges of the
5 other teeth, whether the teeth are missing. There are a number
6 of reasons that even teeth that are present might not mark.
7 The angle from which the bite occurred. There are a number of
8 factors that you have to consider.
9 Q. In addition to looking for opposing semicircular marks and
10 these irregular interrupted markings, do you look for anything
11 with respect to the size of the markings in seeking to
12 determine whether there is a human bite mark?
13 A. Yes, sir, I do. Even if we had facing semicircular marks
14 with irregular interrupted markings, if the dimensional
15 parameters were not correct for the size and -- and spacing of
16 human teeth, then you have the wrong injury.
17 For instance, if we had all of the things that I just
18 outlined earlier, but yet the size of this mark was, you know,
19 six centimeters wide, well, human dentition is not gonna have
20 that's six centimeters wide.
21 Q. With the assistance of the scale placed on the photograph
22 at the Pathologist's office, did you perform measurements to
23 determine whether the dimensions in Exhibit Forty-six are
24 consistent with -- and within a reasonable degree of scientific
25 probability -- human teeth marks?
1 A. Yes, sir, I did.
2 Q. And what measurements did you conduct and what did you
4 A. Well, I was looking at three different dimensional
5 parameters. First of all, I was looking at -- at the widths of
6 the markings that would represent individual teeth as I alluded
7 to earlier. And the measurements that are consistent with the
8 width of human teeth are within the proper dimensional
9 parameters for those teeth.
10 Secondly, I was looking at the relative arch width, and
11 the dimensional parameters were proper for the relative arch
12 widths of the human bite.
13 And, thirdly, the separation between the arches is within
14 the proper dimensional parameters for separation of upper and
15 lower teeth for a human bite mark.
16 Q. When looking at a mark that fits the classical description
17 in terms of having opposing semicircular marks, irregular
18 interrupted markings, and the size consistent with human teeth,
19 do you also look for marks to be in a complete circle on all
21 A. Not if you're talking about a human bite mark you wouldn't
22 expect to see that, no.
23 Q. Explain.
24 A. Well, when you bite skin or any other surface for that
25 matter, but especially skin, your -- your lips and cheeks tend
1 to block the marking on the right and left periphery of the
2 surface that you're biting. In other words, if we look at this
3 patterned injury and we're talking about top and bottom where
4 we see markings, out to the left and right extremities of the
5 periphery, we would expect to see an absence of markings
6 because in human bite dynamics as I said, the -- the lips and
7 the cheeks tend to block the lateral aspect of teeth from
8 marking. So we tend to see an absence of marking out to the
9 left and right periphery which we see in this case. Whereas,
10 an inanimate object that might make the mark is gonna tend to
11 -- to continue all the way around the left and right periphery.
12 Q. Speaking as a layman, if we -- if we see a human bite
13 mark, we don't necessarily see all the way back to the wisdom
14 teeth in the marks.
15 A. That would be very unusual.
16 Q. What about the spacings of the teeth? Do you consider
17 that in searching for a human -- for whether there's a presence
18 of a human bite mark?
19 A. Yeah, I believe I've already covered that.
20 Q. Okay. Did you examine Petitioner's Exhibit Forty-six with
21 a view to determining whether there were unique characteristics
22 in this bite mark that would give some sort of a signature or a
23 distinguishing characteristic that you would utilize in making
24 comparisons of -- of what we see in forty-six with samples or
25 exhibits that might be provided you?
1 A. Yes, sir, I did.
2 Q. Tell us what -- what's the proper terminology? What word
3 am I forgetting that I should be using now?
4 A. When you look at characteristics that are typical of any
5 human bite mark -- not necessarily a particular individual --
6 the term that is properly used is class characteristics. If --
7 if the shape of the marking and the size of the marking is
8 typical of human teeth, then you would refer to that as a class
9 characteristic; whereas, if there is a relatively unique
10 feature within that bite -- that all human teeth are not
11 necessarily going to have -- but a very small segment of the
12 population -- you would refer to that as an individual
14 Q. Did you find individual characteristics in the photograph
15 that is Petitioner's Forty-six?
16 A. Yes, sir, I believe I did.
17 Q. Please describe that or -- and do it again if you have
18 already because I missed it.
19 A. In looking at the upper portion of the bite, on the left-
20 hand side there are two particular injury patterns which I
21 believe are individual characteristics and not particularly
22 representative of just class characteristics.
23 Q. What is the relative size of those on that photograph?
24 A. The relative size of --
25 Q. Well, I'm gonna --
1 MR. MALLETT: If I can approach --
2 BY MR. MALLETT:
3 Q. Show me with your pen what you -- what it is that you're
4 looking at. Could you please stand and indicate to his Honor
5 so that he can see as carefully as possible what these two
6 marks are that you're identifying as individual
8 A. (COMPLYING.) Yes.
9 THE COURT: I can see it. Go ahead.
10 BY THE WITNESS:
11 A. This particular mark on the upper left-hand portion of the
12 bite, I believe, is an individual characteristic and the basis
13 for that opinion is the fact that when you look at the entire
14 patterned injury, the most exuberant tissue response, or the
15 hardest marking, if you will, is on the upper left portion of
16 this injury. And that, I believe, is responsible for the fact
17 that this particular tooth, I believe, marked harder than the
18 other teeth, and I think the reason that it marked harder is
19 that it probably stuck down a little bit further than the other
20 teeth in terms of holding a flat surface across the biting
21 edges. That if you looked at that person's teeth, that
22 particular tooth -- that being, I believe, tooth number ten --
23 that it's gonna stick down further than the other teeth so that
24 when you contact the skin in order to register the other teeth,
25 that one's gonna have to go in further and create more injury
1 to the tissue surface.
2 Q. And what is the other charac -- individual characteristic
3 that you noted in forty-six?
4 A. Immediately to the right of the last injury that I
5 described, there is a series of dots, if you will, connected by
6 faint lines that are at right angles to one another.
7 Q. And based on your training and experience, did you form
8 any opinions about what dental conditions, situations or
9 descriptions might be the cause of that individual
11 A. I think that probably the most likely explanation for that
12 particular pattern would be that the edge of tooth number nine
13 closest to the mid-line probably has a crack, a chip, some sort
14 of irregularity on the surface that would cause it to mark
15 differently than the edges of those other teeth. But I believe
16 that there's some unique feature that created a -- a -- an
17 irregular tissue con -- or surface contour on that tooth that's
18 at right angles to one another, or approaching right angles.
19 Q. For purposes of making comparisons in this case, were you
20 provided with dental casts of Jason Baldwin, Jesse Misskelley,
21 and Damien Echols?
22 A. Yes, sir.
23 Q. Did you bring those to the courtroom?
24 A. Yes, sir.
25 MR. MALLETT: With the Court's permission, I
1 intend to go briefly through a short chain of custody
2 so that the impressions themselves are not in the
3 record but instead photographs of wax compressions
4 used -- made using the casts are in evidence unless
5 the state lodges an objection. So if I could do this
6 real quickly?
7 BY MR. MALLETT:
8 Q. First, would you show the Court the dental casts that you
9 were provided?
10 MR DAVIS: Do I understand you're saying that
11 you're going to introduce wax cast impressions made
12 from the dental impressions that were made from the
13 three individuals?
14 MR. MALLETT: Photographs of the wax cast
16 MR. DAVIS: Okay.
17 MR. MALLETT: But we have it all here for you.
18 MR. DAVIS: Okay. Proceed. If I --
19 BY MR. MALLETT:
20 Q. For purposes of demonstration, would you show the Court
21 the cast impressions?
22 A. (COMPLYING.) I received three sets of dental casts that
23 were marked with letters and numbers, and there was a letter
24 that accompanied the casts that identified which individual was
25 identified by virtue of the letters and numbers on the bottom
1 of the casts.
2 Q. I'm a little bit out of order here and I apologize. Let's
3 have the letter marked for identification.
4 (PETITIONER'S EXHIBIT NUMBER FIFTY-TWO IS
5 MARKED FOR IDENTIFICATION. )
6 BY MR. MALLETT:
7 Q. Let me show you what's marked for identification as
8 Petitioner's Exhibit Fifty-two, and ask is this the letter that
9 you received in connection with your receipts of the casts?
10 (HANDING TO WITNESS.)
11 A. (EXAMINING.) I believe so, yes.
12 MR. MALLETT: Move for admission of fifty-one.
13 THE COURT: All right, it may be received.
14 (PETITIONER'S EXHIBIT NUMBER FIFTY-TWO IS
15 RECEIVED IN EVIDENCE.)
16 MR. MALLETT: If I may publish the contents of
17 this in part?
18 THE COURT: All right.
19 BY MR. MALLETT:
20 Q. This is from the Arkansas Department of Corrections dated
21 August twenty-fourth, 1998.
22 "Dear Doctor Thomas, enclosed you will note alginate
23 impressions obtained from clients involved in the above
24 referenced case. Sets are identified as follows" -- below that
25 is a numerical and letter identification system indicating that
1 certain sets belong to Charles Jason Baldwin, Damien Echols,
2 and Jesse L. Misskelley, Junior.
3 So is that the way that you were informed that these casts
4 are each identified with the subjects in this investigation?
5 A. Yes, sir.
6 Q. Are you able then to set aside in rows the casts that
7 belong to each one?
8 A. Yes, sir.
9 Q. Which are the Misskelley casts?
10 A. The Misskelley casts are marked M K One U and L which
11 stands for upper and lower. And these would be the Misskelley
12 casts. (INDICATING.)
13 Q. Which are the Jason Baldwin casts?
14 A. Jason Baldwin casts are marked B One U and L,
15 respectively. And that would be -- these two particular casts
16 are marked B One U and L, respectively. (INDICATING.)
17 Q. And which are the Damien Echols casts?
18 A. Damien Echols casts are marked D One U and L,
20 Q. And does the letter plainly state that duplicate copies of
21 these casts were also provided to the state?
23 Q. All right. What did you do with reference to making wax
24 impressions from these dental casts?
25 A. What I did was to take the casts themselves and press them
1 into the base plate wax -- again, the same type of wax that was
2 used with the belt buckle experiment -- to record the pattern
3 of indentation that the edges of the teeth would create in wax.
4 Q. Did you perform this exercise with each of the three sets
5 of casts?
6 A. Yes, sir.
7 Q. And did you take photographs of the wax impressions that
8 you made from the dental casts?
9 A. Yes, sir.
10 Q. Do you have those in the courtroom?
11 A. Yes, sir.
12 Q. May I see them, please? If you would, please, hand me
13 first the ones you made from the Misskelley casts.
14 A. (HANDING TO MR. MALLETT.)
15 Q. And, second, the Baldwin casts.
16 A. (HANDING TO MR. MALLETT.)
17 Q. And, third, the Echols casts.
18 A. (HANDING TO MR. MALLETT.)
19 MR. MALLETT: If I could mark these for
21 (PETITIONER'S EXHIBITS NUMBER FIFTY-THREE,
22 FIFTY-FOUR, AND FIFTY-FIVE ARE MARKED FOR
24 THE COURT: Do you have objection to them going
25 into evidence?
1 MR. DAVIS: Let me see. (EXAMINING.) No, sir,
2 your Honor.
3 THE COURT: All right, they may be received in
5 (PETITIONER'S EXHIBITS NUMBER FIFTY-THREE,
6 FIFTY-FOUR, AND FIFTY-FIVE ARE RECEIVED IN EVIDENCE.)
7 THE COURT: Let me see 'em.
8 BY MR. MALLETT:
9 Q. First, and the next number which is fifty-three, is the
10 Misskelley cast. Is that indicated by M.K.?
11 A. Yes, sir.
12 Q. Fifty-four indicated by B. L. is the Baldwin cast, and
13 fifty-five then is indicated D. One -- or D. L., the Echols
15 MR. MALLETT: I apologize for asking the Court
16 to move around all the time but the information on
11 this is in pretty fine detail.
18 BY MR. MALLETT:
19 Q. Starting with the first number, which I guess is fifty-
20 three, which is the Misskelley cast, would you please, in a
21 narrative, but slowly so that Judge Burnett and Mr. Davis can
22 follow you, describe what you see in Exhibit Fifty-three which
23 is a photograph of the wax casts made -- of the wax impression
24 made from the cast of Jesse Misskelley's teeth.
25 A. I'm not sure how you want me to describe it. In -- in
1 what fashion that would be of benefit to the Judge?
2 THE COURT: I'm looking at it.
3 BY THE WITNESS:
4 A. I'm -- I'm not sure that I need to describe it
6 Q. Would you please make a comparison between that and what
7 you see in Exhibit Forty-six which is what we call the autopsy
9 A. Although both patterns are circular in nature, there are
10 distinct differences between the two.
11 Q. Did you actually take some additional photographs that you
12 utilized in doing the actual comparison between the photographs
13 of the wax impressions and the plaster?
14 A. Not exactly photographs of the wax impressions, no.
15 Q. I mean photographs of forty-six?
16 A. I compared a one-to-one photograph of Exhibit Forty-six
17 directly with an overlay of the outer edges of the front teeth
18 of all three defendants.
19 Q. Did you bring the work that you did in doing that
20 comparison with you to the courtroom?
21 A. Yes, sir, I did.
22 Q. Can I see those photographs, please?
23 A. (HANDING TO MR. MALLETT.)
24 Q. Do we have six of these?
25 A. Yeah, one is upper and one is lower so there's two for
1 each defendant.
2 Q. All right. Thank you. If you would assist me, identify
3 the two photographs that relate to the comparison for Mr.
5 A. Each defendant is compared using a different color of
6 marker. Mr. Misskelley's cast has a green marking and,
7 therefore, the overlay tracing is also green so we can identify
8 each set of casts that was used. And this is where I believe
9 an explanation would be in order.
10 MR. MALLETT: First, let's mark these as fifty-
11 six and fifty-seven and move their admission with the
12 court's permission.
13 (PETITIONER'S EXHIBITS NUMBERS FIFTY-SIX AND
14 FIFTY-SEVEN ARE MARKED FOR IDENTIFICATION.)
15 THE COURT: You had one of 'em upside down.
16 THE WITNESS: Well, that's because we do the
17 lower opposite to the upper.
18 MR. MALLETT: And since we're here, I apologize
19 to the Court. Let's go ahead and mark fifty-eight
20 and fifty-nine and sixty and sixty-one so this will
21 -- we can go right through it --
22 THE WITNESS: You're talking about here?
24 BY MR. MALLETT:
25 Q. Next, please mark the Baldwin comparison photographs.
1 A. The Baldwin is marked in blue, and there's a blue mark on
2 the bottom of the cast, and the overlay tracing is also blue.
3 Q. And that is fifty-nine and sixty.
4 THE COURT REPORTER: Fifty-eight and fifty-nine.
5 BY MR. MALLETT:
6 Q. Fifty-eight and fifty-nine, excuse me.
7 (PETITIONER'S EXHIBITS NUMBER FIFTY-EIGHT AND
8 FIFTY-NINE ARE MARKED FOR IDENTIFICATION.)
9 MR. MALLETT: And then if we could please mark
10 the comparison sixty and sixty-one which would be the
11 Echols comparison photographs.
12 (PETITIONER' S EXHIBITS NUMBER SIXTY AND SIXTY-
13 ONE ARE MARKED FOR IDENTIFICATION.)
14 BY THE WITNESS:
15 A. Echols has a red mark on the bottom of the cast which
16 corresponds to the red overlay tracing.
17 MR. DAVIS: Your Honor, may I make an inquiry
18 for purposes of my clarification?
19 THE COURT: Yes.
20 MR. DAVIS: The question I have is: When you
21 talk about an overlay -- the blue, green and red
22 markings -- how did those markings get transferred
23 from the overlay onto the photograph?
24 THE WITNESS: They were made onto an acetate
25 transparency which was laid over a one-to-one
2 MR. DAVIS: Okay. And then did you -- did you
3 follow that pattern to make that marking on the
5 THE WITNESS: No. No. No. That -- that
6 marking is not on the photo. It's on a transparency.
7 MR. DAVIS: And the transparency is then matted
8 onto the photograph?
9 THE WITNESS: Yes. I -- I was trying to explain
10 that when Mr. Mallett --
11 MR. MALLETT: I made --
12 THE WITNESS: -- asked that we enter this first
13 and then I could explain it.
14 MR. MALLETT: I have made the mistake in my
15 interest in moving the case as quickly as possible in
16 not allowing my witness to explain his work.
17 BY MR. MALLETT:
18 Q. Would you please state for the record how Exhibits Fifty-
19 seven to Sixty-one were created?
20 A. Yes.
21 Q. Please continue.
22 A. I think it would eliminate the confusion.
23 We're actually talking about two different types of
24 comparisons, and I think I need to explain them. In the first
25 place, the cast was taken and pressed into wax to see what the
1 marking pattern would be in Exhibits Fifty-three, Fifty-four,
2 and Fifty-five. And basically what this is, is it allows what
3 you might call a three-dimensional comparison. Whereas, the
4 overlay comparison is basically a two-dimensional comparison.
5 And the overlays were produced in a different manner. Rather
6 than pressing the casts into wax, the casts were laid down on a
7 copy machine, and a paper copy was made of the edges of the
8 teeth with a scale that was one-to-one, and then acetate
9 tracing material was placed over the paper copy of the edges of
10 the teeth tracing the outer edges of those teeth.
11 MR. DAVIS: I think I follow you.
12 BY MR. MALLETT:
13 Q. I'm not sure I do so let's -- what is that illustration
15 A. This is a xeroxed copy of the upper model of D One which
16 would be Damien Echols. By placing this --
17 Q. Could you show that to Judge Burnett, also, please?
18 THE COURT: I -- I can see it.
19 BY THE WITNESS:
20 A. (COMPLYING.) By taking Damien Echols' upper cast and
21 placing it face down on a copy machine, you would produce this.
22 (INDICATING.) And then you take a piece of acetate
23 transparency, lay it over this, and trace the outer edges like
24 so. (DEMONSTRATING.)
25 MR. DAVIS: With a red magic marker or
2 THE WITNESS: Yes. An overhead projector
4 MR. DAVIS: Okay.
5 BY THE WITNESS:
6 A. That's indelible. Now, you have a one-to-one comparison
7 of the outer edges of the teeth to lay over a one-to-one
8 photograph. But you're only looking at a two-dimensional
9 comparison. In other words, it's gonna maximize the potential
10 markings. There are certain teeth that may not be on the same
11 plane as others that might not mark so you're maximizing the
12 number of potential teeth that can mark with this type of
14 But once you get down to the wax marking, some of the
15 teeth that are outlined in here may not mark where you see
16 absence of markings. This is the third-dimensional comparison.
17 So it's really a two-step process.
18 Q. Did you make a comparison of the bite mark of Jesse
19 Misskelley with the bite mark from an unknown source appearing
20 on Petitioner's Forty-six?
21 A. Yes, sir.
22 Q. What did you see when you made that comparison?
23 A. What I saw was that the dimensional parameters and the
24 general position of some of the marks compared favorably, but
25 in looking at particularly some of the individual
1 characteristics, there was a discrepancy in the comparison.
2 Q. What is that discrepancy?
3 A. In this particular case, the most obvious one is with
4 respect to the individual characteristic marking of tooth
5 number nine, that being the right angled dot type of marking.
6 Q. And are you able to verbalize or explain the distinction
7 you see between the mark of an unknown source -- from an
8 unknown source on forty-six and the -- what you see on the
9 known photographs fifty-seven and fifty-eight which were
10 derived from Jesse Misskelley?
11 A. I'm not sure I understand your question.
12 Q. What is -- what is the difference or distinction that you
14 A. In which part of the analysis? We're talking about a two-
15 stop process here.
16 Q. In the final analysis.
17 A. Well, in the final analysis what I -- what I typically
18 will do is not use either one but compare the cast directly
19 against the one-to-one photograph. 'Cause then that will
20 combine both steps of the process into one.
21 Q. Well, what are your findings in your comparison of the
22 Jesse Misskelley bite mark?
23 A. I my opinion, I can eliminate this set of casts as having
24 made that mark.
25 Q. For what reason?
1 A. For the discrepancies that I found in the pattern.
2 Q. Can you please give us examples of the three
4 A. Well, I'd need to look at the one-to-one photograph and
5 the casts to do that.
6 Q. Who has those?
7 A. Well, the casts are here. I'm not sure where the one-to-
8 one photograph is. It was marked as an exhibit. Is it on your
10 Q. Oh. This photograph? (HANDING TO THE WITNESS.)
11 A. (EXAMINING.) Yes.
12 And you're asking me about M. K. One; is that correct?
13 Q. Right.
14 A. I'm comparing the upper cast now and looking at the cast
15 of Misskelley on the bite injury on Steven Branch.
16 Essentially, we're looking at four teeth that have created
17 different portions of markings. Those being teeth number
18 seven, eight, nine and ten. And what I notice in looking at it
19 is that the marking with tooth number ten compares somewhat
20 favorably. Number seven somewhat favorably. The biggest
21 discrepancy is with respect to the comparison of tooth numbers
22 eight and nine, and that is that the teeth on the Misskelley
23 cast are in a relatively straight line in comparison with the
24 bite on Steven Branch.
25 In other words, the -- the pattern that's gonna be created
1 is flatter than the circular nature of the injury in that
2 particular portion.
3 Q. Within a reasonable degree of scientific probability, did
4 Jesse Misskelley make the bite mark that we see on the autopsy
6 A. In my opinion, no.
7 Q. Would you please look at your one-to-one comparison of the
8 teeth mark of Jason Baldwin and the caste of Jason Baldwin?
9 A. In looking at the casts of Jason Baldwin's teeth, there is
10 absolutely no correlation whatsoever. Mr. Baldwin's upper
11 teeth in particular have a very unusual arrangement in the
12 front, and I don't think anyone in this room would have
13 difficulty in eliminating this particular cast as having made
14 that mark.
15 Q. Now, for the --
16 A. See how the front teeth stick out? (INDICATING.)
17 It's gonna create an extremely unusual pattern.
18 MR. MALLETT: Is the Court Reporter getting
20 THE COURT REPORTER: Yes.
21 BY MR. MALLETT:
22 Q. Excuse me. Would you please say that again? You were
23 looking away and I didn't hear you.
24 A. I said that I don't think anyone in this room would have
25 difficulty understanding that the pattern that Jason Baldwin's
1 upper-cast would make would be drastically different than the
2 pattern than we see in this bite mark by virtue of the fact
3 that tooth number eight sticks out almost at right angles to
4 the other teeth. It would create an extremely unusual pattern.
5 Q. And do you see that extremely unusual pattern in the
6 autopsy photograph?
7 A. No.
8 Q. Did you make then -- show us the comparison between the
9 one-to-one photograph and the cast from Damien Echols.
10 A. In looking at the one-to-one comparison of Damien Echols'
11 cast to the photograph of the bite injury, I see the same type
12 of flattening in the center of the upper marking where tooth
13 numbers eight and nine would be and in addition to that, where
14 tooth number ten is that I spoke earlier about with respect to
15 the prominent markings, teeth number ten in Damien Echols' cast
16 is out of the plane of occlusion.
17 In other words, if you look at the biting edges of the
18 teeth, not only is tooth number ten not prominent, it's
19 probably the least prominent tooth of the upper front teeth.
20 So the representation would appear exactly opposite to the
21 marking that you see in the bite.
22 Q. Did you make a comparison of the spacing of the Damien
23 Echols teeth with the un -- with the marks of an unknown
25 A. Well, I -- I don't understand what you mean. What type of
1 spacing? In which dimension?
2 Q. Well, I'll withdraw that and ask a different question.
3 Do you see any indication of a cracked or chipped tooth in
5 A. Me, sir, I do not. In looking at the individual
6 characteristic that I spoke about earlier -- that being the --
7 the mesial or the closest to the mid-line of tooth number nine
8 -- I do not find that injury pattern that I would expect in any
9 of the three casts.
10 Q. Within a reasonable degree of scientific probability, is
11 Damien Echols the source of the bite mark that we see in the
12 autopsy photograph?
13 A. In my opinion, no.
14 Q. Based on the materials that you have reviewed, the tests
15 and experiments that you have performed, the materials that you
16 have created in performing your own examination of the
17 materials, do you have an opinion whether in this unusual case
18 of a triple murder and the prosecution relying in part on
19 circumstantial evidence, it was at appropriate case for the
20 consul -- for consultation by a forensic o6cntoloqist?
21 A. Yes, I have an opinion.
22 Q. And what is that opinion?
23 A. I believe that a forensic odontologist certainly should
24 have been consulted.
25 MR. MALLETT: Pass the witness.
1 CROSS EXAMINATION
2 BY MR. DAVIS:
3 Q. Doctor David, you indicated that you practiced in Georgia;
4 is that correct?
5 A. Yes, sir.
6 Q. Okay. And are you associated with the state -- I don't
7 know what you all call that in Georgia -- but the state crime
8 laboratory in the State of Georgia?
9 A. Yes, sir, I am.
10 Q. And did I understand you to say that in a number of cases
11 -- in fact, the typical scenario in which you would be
12 associated with them would be that the medical examiner in
13 reviewing a case would note the possibility or existence of
14 bite marks and then would consult you or ask you to do further
15 analysis on the case; is that right?
16 A. Yes, sir.
17 Q. Okay. And is that typically how you are contacted or
18 brought into a case in the majority of situations -- that a
19 forensic pathologist noting something which he believes may in
20 fact be a bite mark would contact you and ask you to do further
22 A. With respect to deceased individuals, yes.
23 Q. Okay. And so that would be the typical way in which you
24 would get references or referrals?
25 A. Yes, sir. There are -- there are other situations that I
1 might be consulted later, but typically speaking I will usually
2 be contacted by the medical examiner at the time he's getting
3 ready to do an autopsy or perhaps in-- in the midst of doing
4 an autopsy.
5 A. And so whereas the forensic pathologist or the medical
6 examiners may not have the extensive knowledge and expertise
7 that you do in making fine detailed determinations as to what
8 may or may not be a bite mark and further comparisons, they are
9 on a typical -- in a typical basis capable of identifying
10 things that may or may not be a bite mark and bringing them to
11 your attention?
12 A. For the most part, yes.
13 Q. Okay. And who is the chief medical examiner for the State
14 of Georqia as of right now?
15 A. Doctor Kris Sperry.
16 Q. Okay. And would you expect -- you -- you've worked with
17 Doctor Sperry, right?
18 A. Yes, sir, I have--
19 Q. In fact --
20 A. -- from time to time.
21 Q. Okay. In fact, some of the cases that you've worked with
22 him on are cases where in performing an autopsy or in viewing
23 autopsy reports he has noted bite mark -- what may be
24 potential bite mark evidence and referred cases to you,
1 A. Since he's become the chief medical examiner for the
2 state, I'm not sure that I've actually done his very case. I
3 think that some of the other medical examiners have called me.
4 I couldn't tell you absolutely, but I don't recall Doctor
5 Sperry actually calling me in since he's taken ever that job
6 which has only been roughly a year ago.
7 Q. What about before he took over that job?
8 A. He worked in a different jurisdiction, and there were
9 times that he would ask me to look at things, yes.
10 Q. Okay. In other words, he would note things in -- in an
11 autopsy that would raise question marks in his mind about
12 whether an odontologist might be appropriate, and would
13 refer a case to you?
14 A. From time to time, yes.
15 Q. Okay. Did you ever receive any contact from him after he
16 viewed autopsy photos in this case, after he reviewed the
17 autopsy report in this case at the request of Mr. Echols'
18 defense counsel, to ever examine and of these photographs or to
19 do any further testing to determine if, in fact, there were
20 teeth marks?
21 A. I'm sorry, the question got a little bit too long.
22 Q. Okay. Did you ever have any contact from Doctor Sperry,
23 regarding this case prior to its trial?
24 A. Not that I can recall.
25 Q. Okay. And he certainly was aware of you as a potential
1 resource, correct?
2 A. Yes.
3 Q. Back in the first three or four months of 1994, I believe
4 that is -- 1993 -- ninety-four.
5 A. I believe at that time he was probably with the Fulton
6 County Examiner's office.
7 Q. Okay. Which is the county that Atlanta's located in?
8 A. Correct.
9 Q. You were working the same -- same state at that time?
10 A. Yes.
11 Q. And he was referring cases to you?
12 A. I didn't get as many referrals from Fulton County as I did
13 from the state crime lab, but there were times that -- that we
14 might have occasion to discuss cases -- not very often at
15 Fulton County as opposed to the state crime lab.
16 Q. And are forensic pathologists trained and are -- based on
17 your experience in dealing with forensic pathologists -- are
18 they trained and alerted to the importance of looking for bite
20 A. I would expect so. I mean, obviously, they call me about
21 injuries that they think might be bite marks. Some of them are
22 gonna be more well trained than others, I would imagine.
23 Q. And you work on a board -- you're --I believe, Mr. Mallett
24 asked you -- Doctor Sturner with the Arkansas Medical
25 Examiner's Office, he -- he's on a board with you; is that
2 A. We're both members of the editorial board of the Journal
3 of Forensic Sciences. We don't necessarily work together in
4 that respect, but we're both on the same editorial board.
5 Q. Okay. Do you know him?
6 A. I would probably know him to see him, but he wouldn't
7 necessarily know who I am, or -- or we don't know one another
8 personally, if that's what you mean.
9 Q. Are you aware of his professional standing and rank in the
10 field of forensic pathology?
11 A. Not specifically, but I know that he's fairly well
12 recognized in the field of forensic pathology.
13 Q. Now, would you agree that in order to evaluate wounds,
14 bite marks, injuries, that to have a body itself where you can
15 examine the tissue, examine the flesh, examine the wounds up
16 close, that that is the ideal set of circumstances in order to
17 work, versus working from photographs?
18 A. It would probably be ideal, yes.
19 Q. Okay. If you had your druthers (sic) in a case in terms
20 of being able to make the most accurate determination, would
21 you rather have the wound, the body and be able to examine it
22 close, to touch it, to manipulate it, to move it and to
23 look at it in that fashion, or would you rather have a
24 photograph to view to make your determination?
25 A. I think that different things are valuable for different
1 purposes. Certainly, that would be of benefit, but there's a
2 limited time frame in which you can examine the tissue. Even
3 if you excise it, it's gonna tend to shrink and there'll be
4 some remodeling. So, yes, that would be advantageous, but
5 there's a very limited period of time in which you can do that.
6 And certainly an in-depth bite mark analysis like what I've
7 done is gonna require typically more time than that.
8 Q. But you indicated there would be an advantage to having
9 that type of examination and have that available to you?
10 A. Generally, yes.
11 Q. Okay. And were you aware that Doctor Sturner had the
12 opportunity to examine this wound individually and personally
13 at the time that the body was at the Arkansas State Crime Lab?
14 A. No, sir I was not.
15 Q. Okay. Were you aware that Doctor Peretti did?
16 A. My understanding was that he performed the autopsy.
17 Q. Okay. And as a -- you've indicated that your field of
18 expertise is a specialty of dentistry which is forensic
19 dentistry, correct?
20 A. Yes.
21 Q. Okay. But as a dentist -- a dentist -- part of your
22 training, part of your daily work is in dealing with bite mark
23 impressions and the configuration of the teeth and, also, the
24 type of bite marks that certain teeth leave, correct?
25 A. As -- as a part of dentistry in general, you're aware of
1 those things, yes.
2 Q. Okay. And someone that has -- that is a doctor of
3 dentistry would have sore expertise in viewing injuries and
4 wounds to determine if those wounds are consistent with a
5 human bite mark correct?
6 A. Depending upon what experience level he had at looking at
7 patterned injuries made from teeth. Knowing teeth
8 characteristics is one thing, and knowing what type of injury
9 pattern they may leave on skin is an entirely different matter.
10 Q. Okay, So there are --- there are journals and there's
11 literature that helps someone interested in gaining information
12 on that area to gain information in the field of determining
13 what may or may not be a bite mark, correct?
14 A. There -- there is a limited amount of literature in that
15 aspect, yes.
16 Q. Do you think it would be of assistance to a forensic
17 pathologist to consult a dentist -- while the body was at the
18 state medical examiner's office-- to have a dentist view the
19 body to determine if that individual could ascertain if there
20 were possible marks -- bite marks on the body?
21 A. Do I think that would be of benefit?
22 Q. Yes.
23 A. Yes, if the person were experienced in examining
24 patterned injuries in general and specifically bite marks, yes.
25 Q. Okay. And that wouldn't necessarily require someone such
1 as in the unique field of forensic odontology -- although that
2 might be preferred -- a dentist could provide some insight and
3 input, correct?
4 A. Much more limited than a trained forensic odontologist.
5 Q. Are you familiar with Doctor Harry Mincer --
6 A. Yes, sir.
7 Q. -- from the University of Tennessee?
8 A. Yes, sir.
9 Q. Is he a forensic odontologist?
10 A. Yes, sir.
11 Q. Okay. Has he worked in the field longer than you have?
12 A. I couldn't tell you a hundred percent, but I would imagine
14 Q. Are you familiar with his work and with his practice?
15 A. To my understanding is that he's on the faculty at the
16 dental school at the University of Tennessee in Memphis.
17 Q. Is he respected in the field of forensic odontology?
18 A. I believe so.
19 Q. Have you heard any of his lectures, talks, read any of his
21 A. Yes.
22 Q. Okay. Is he a frequent speaker at forensic science
23 seminars and lectures?
24 A. I don't know that I would say frequent, but he's certainly
25 spoken a number of times.
1 Q. You've heard him and gone to those for purposes of
2 expanding upon your education in the field, correct?
3 A. He's been part of programs that I've attended, yes.
4 Q. In forensic odontology do you ask -- the first thing you
5 have to do or that you did in your analysis was determine if
6 the injury you've described in Exhibit Forty-six was in fact in
7 your opinion a bite mark, correct?
8 A. More specifically, a human bite mark.
9 Q. Okay. And what you have told us is that in your opinion,
10 it is, correct?
11 A. That's correct.
12 Q. Okay. Forensic odontology and the determination of what
13 is a bite mark -- or human bite mark -- is not an exact
14 science, is it?
15 A. No, sir, it's not an exact science.
16 Q. Okay. And there are differing opinions among differing
17 forensic odontologists presented with the same evidence,
19 A. From time to time there are, yes.
20 Q. And so in terms of the importance that you would place on
21 someone in the position of Mr. Echols' attorney contacting a
22 forensic odontologist, it might matter as to what odontologist
23 they contacted to determine what opinion they got, correct?
24 Q. Within certain parameters I would tend to agree with that
25 question, but I think that that's where the importance of
1 proper evidence gathering in the beginning comes into play and
2 that is, had the area been swabbed, the issue of whether this
3 was a bite mark and the presence of positive salivary amylase
4 would have been a moot point. And I think that it was a
5 crucial omission on the part of the forensic pathologist not to
6 swab the area.
7 Q. When you told me what you think was a crucial omission on
8 the part of the forensic pathologist but the truth of the
9 matter is, you could go to another certified forensic
10 odontologist who's well trained, well respected, well educated,
11 and you could get a different opinion than that that you've
12 rendered to us today, correct?
13 A. Yes, you could, but if you have a positive salivary
14 amylase test, the issue of whether it was a bite mark would
15 become a moot point. You don't accidentally get saliva on the
16 left side of your head over the eye. So if you've got a
17 positive salivary amylase fact, the issue of whether it is a
18 bite mark the opinions that you might get from a variety of
19 forensic odontologists would be moot. You'd move on to the
20 next issue which would be the analysis of the bite itself.
21 There would be no more discussion about whether it's a bite.
22 Q. You're saying if a positive test result occurred?
23 A. Correct.
24 Q. Okay.
25 A. You can't have a positive one unless it's done.
1 Q. Okay. So what you're differing with is you're saying that
2 the forensic pathologist made a mistake by not swabbing the
4 A. Yes, sir.
5 Q. Okay But that's a given. That didn't change -- that --
6 that occurred within two days after the body had been
7 transferred to the medical examiner's office, correct?
8 A. I don't know about the exact time frame, but it sounds
9 remotely correct.
10 Q. Okay. So a -- a defense attorney faced with questions as
11 to what experts he prefers and what he's capable o doing can't
12 change that fact, can he?
13 A. No, he can't.
14 Q. Okay. And the truth of the matter, the fact you're
15 talking about is you're -- you're saying that the medical
16 examiner made a mistake by not swabbing it, the truth is, it
17 could have been a bite mark and it would not have tested
18 positive for amylase anyway; isn't that true?
19 A. That could have been a false negative, that's correct.
20 Q. Right. And the truth of the matter is, that after the
21 bodies had been submerged in water for a period of time, that
22 the -- that the constituent amylase that is found in saliva
23 have been destroyed and quite likely would have been destroyed
24 in that situation anyway; is that correct?
25 A. Not necessarily. I --
1 Q. Not necessarily, but quite likely, wouldn't you agree?
2 A. I don't know that we can -- we can haggle over descriptive
3 terms because as I alluded to earlier in my testimony, I gave
4 you two particular cases in which there was fluid -- in one
5 case blood and in another case water -- over a bite injury in
6 which there was sufficient evidence remaining to perform a test
7 which was subsequently positive for saliva.
8 Q. Let me ask you this: Based on your experience with
9 working with Doctor Sperry, had a body -- had the body of Steve
10 Branch with that injury been presented to him, do you
11 anticipate -- based on your experience with him -- that that
12 case would have been referred to you for purposes of examining
13 that to determine if, in fact, that was a bite mark?
14 A. I would hope so.
15 Q. Okay. Well, you -- you've worked with him, you know his
16 expertise, you know that he's cognizant that such injuries may
17 occur and may exist, would you expect that to have happened in
18 that case?
19 A. I haven't worked with him enough times to know exactly
20 what his opinion is gonna be. As I said, I would hope so. But
21 as far as what his actual opinion would be, I don't know unless
23 Q. And what you've basically told us is that had the defense
24 attorneys on this case consulted you as a forensic odontologist
25 and you examined these things, it would have been your opinion
1 that this was a bite mark -- a human bite mark?
2 A. That was the determination that I made after I analyzed
3 the evidence, yes.
4 Q. Okay. And the truth is that if you're wrong on that
5 threshold question, okay, if your opinion is not accurate as to
6 the threshold question of whether this is in fact a human bite
7 mark, then the rest of your comparisons that you've made with
8 these dental impressions and everything else serve no purpose.
9 Isn't that accurate?
10 A. One has to follow from the other necessarily, yes.
11 Q. Okay. Because obviously, if you're incorrect in
12 determining and making that threshold opinion as to whether or
13 not this is in fact a human bite mark, the comparisons with
14 human dental casts or dental impressions serve no purpose?
15 A. It would not necessarily follow if it were not a bite mark
17 Q. And if other qualified forensic odontologists render
18 opinions different from yours, you wouldn't fault the defense
19 attorney for relying on them or conferring with them in helping
20 to establish or to determine what the evidence in this case
21 was, would you?
22 A. I would be interested in knowing what the evidence was
23 that they based their opinion on.
24 Q. And you've given us all the background, all the
25 information, all the evidence that you viewed or determined in
1 order to make your estimation yourself?
2 A. Yes. Now, whether there's other evidence out there that I
3 haven't seen yet, I don't know.
4 Q. Any other injuries on any of -- did you view autopsy
5 photos of all three victims?
6 A. Yes, sir.
7 Q. And did you view injuries to those individuals' face, all
8 over -- all the photos you were provided?
9 A. Yes, sir.
10 Q. Were you able to ascertain any other things that you
11 believed to be bite marks?
12 A. There were maybe a handful of other injuries that might
13 have been bite marks but even assuming that they were, they
14 weren't of sufficient evidentiary value for comparison.
15 Q. Okay. Can I interpret that to mean that you found no
16 other injuries that you were able to reach any sort of an
17 opinion as to whether or not they were bite marks?
18 A. That's correct.
19 Q. Okay.
20 A. Well, with the exception of what I mentioned on the cheek.
21 Q. And the injuries to the cheek, did you describe those --
22 is it your opinion that those were bite marks?
23 A. -- I think that it's probable that the incised wound
24 that's patterned on the left cheek is probably an animal bite
25 not a human bite.
1 Q. And can -- what degree of certainty can you tell us about
2 that as to whether that's an animal bite or not.
3 A. Less than the comparison about the bite on the forehead.
4 Q. Okay. Well, you've told us that there's kind of four
5 levels of comparisons or four levels of opinions -- I wrote
6 that down somewhere -- possible, consistent, probable,
7 consistent within a reasonable degree of scientific certainty.
8 What's your opinion on whether that's an animal bite mark on
9 the cheek?
10 A. I said probable.
11 Q. Probable? So that's a third level?
12 A. Yes.
13 Q. Okay. Any idea what type -- type of animal, what type --
14 type of critter caused that?
15 A. No.
16 Q. Okay. And was it any -- are you able to determine that
17 in cases?
18 A. Sometimes you might.
19 Q. Any other evidence in any of these photographs that you
20 believe to be bite mark evidence?
21 A. Not of sufficient quality to analyze, no.
22 Q. Okay. So it's your opinion based on your evaluation, that
23 there were possible bite marks to the jaw to the left side of
24 the face of Steve Branch that may be animal in origin?
25 A. That's correct.
1 Q. Okay. And you're -- the level of assuredness we can have
2 on that is that that's probable?
3 A. In my opinion, yes.
4 Q. And it's your opinion based on your evaluation, that the
5 one over the left forehead based on a reasonable degree of
6 scientific certainty is a human bite mark?
7 A. That's correct.
8 Q. How did you get contacted to be involved in this case?
9 A. Mr. Mallett contacted me.
10 Q. And when was that?
11 A. Um, my best recollection would be not quite a year ago.
12 Q. And, who all have you spoken with regarding preparation of
13 your reports and testimony here today?
14 A. I've spoken to Ms. Martin and Mr. Mallett and Mr. Dunlap.
15 Q. Any other attorneys?
16 A. Not that I can recall.
17 Q. Okay. Any of the attorneys representing any of the other
19 A. Uh, I've spoken with Mr. Stidham, uh, I believe back in
20 February of this year.
21 Q. Isn't is apparent from the -- Mr. Mallett asked you about
22 the autopsy report of Doctor Peretti -- and you differed or
23 disagreed with his opinion regarding the belt buckle nature of
24 that. But it's obvious from that report that he was very
25 cognizant that this was a patterned injury, correct?
1 A. He didn't use that phrase but -- but the description that
2 he gave is appropriate for a patterned injury.
3 Q. Okay. It's not something that from your reading of the
4 autopsy report it appeared he overlooked or failed to
5 recognize, correct?
6 A. I don't recall his specific description in the autopsy
7 report. What I was referring to was his testimony in the
8 transcript that I read.
9 Q. Okay. Do you recall what he mentioned about it in the
10 autopsy report?
11 A. No, sir, I don't, not off the top of my head.
12 Q. And did you review the autopsy report?
13 A. Yes.
14 Q. And if he refereed to it as a patterned injury in the
15 autopsy report, would that fit with your description?
16 A. Yes.
17 Q. How, how many belts did you say that you attempted to use
18 to determine in your testing?
19 A. Two.
20 Q. Two? Okay. Did all of these have smooth -- the belt
21 buckle itself -- was it smooth or did it have any
22 configurations or any design on it?
23 A. Some of them did.
24 Q. You only used --
25 A. I started out with about ten and ended up with two that I
1 actually pressed into the wax.
2 Q. Okay. Well, so the other -- if you started out with ten
3 and you only tested two, then the other eight you didn't really
4 test to determine what kind of impression those were?
5 A. Well, I looked -- well, some of them were square, and I
6 eliminated them for the reason that I mentioned.
7 Q. Did you use any round ones that had any markings or any
8 impressions or other -- had something other than a flat
10 A. Yes.
11 Q. Okay. In your -- your tests?
12 A. Not with the wax, no.
13 Q. Okay. Well, the reason you did the test with the wax was
14 to determine what kind of impression it would make on a surface
15 that you determined to be similar to human flesh which was the
16 wax, right?
17 A. No, I didn't say that the wax was similar to human flesh.
18 I said that it was a medium that dentists used oftentimes for
19 creating bite examplars.
20 Q. Okay. I'm not trying to be tricky here, but the reason
21 you pressed those belts into that wax was to see what kind of
22 impression they made, right?
23 A. That's correct.
24 Q. Okay. And so if you only used belt buckles that were flat
25 surfaced, then the impression that would be made would be --
1 you would expect different impressions if that belt buckle had
2 a pattern or design on it, would you not?
3 A. With an irregular surface -- the reason that I didn't use
4 one with an irregular surface is because it didn't mark at all.
5 Q. So you did test those other eight?
6 A. Well, I tried to press it into something, and it left no
7 mark whatsoever. The only way I could get marking through the
8 pin was if there was a relatively consistent flat surface.
9 With an irregular surface, I couldn't get any marking at all.
10 Q. Did you try any of 'em with beaded or with studded
12 A. No, sir, I did not.
13 Q. Okay. And you would expect with a studded surface belt
14 buckle -- or even studs from the leather off a belt -- that you
15 could press those into wax and get an impression?
16 A. Well, as I stated earlier, the problem I had was that the
17 pin blocked the marking of the buckle. If you used the outside
18 of the belt such as the pin marks as is described in Doctor
19 Peretti's testimony, the problem that you have is that it
20 blocks the registration of the buckle itself. And the more
21 irregular the surface, the less marking you get.
22 Q. And it's your opinion that that injury inside the two --
23 the top and the lower injury on Exhibit Forty-six -- was not
24 connected in any way with the two -- with the injury above and
25 the injury below; is that correct?
1 A. In my opinion, no.
2 Q. Okay. And you spotted this other shot of the ear that you
3 said had a consistent injury?
4 A. Yes, sir.
5 Q. Okay. Are there other areas of injury on the face that
6 appeared to you to be the sane kind of star-shaped or cross-
7 shaped marks on the face of Steve Branch?
8 A. There were some markings over the chin area that were
9 somewhat reminiscent, but they were much larger.
10 Q. Okay. And a larger marking could be left by the same
11 object that just penetrates further into the skin, correct?
12 A. Uh, that's possible but in this case, no, I don't agree
13 with that representation because I think that the -- the - th
14 marking itself -- how hard the patterned mark is gonna tell you
15 how far it goes into the tissue. And the -- the longer marks
16 that are apparent over the chin don't create a hard marking
17 such that you created it longer simply by pushing it in further
18 because you would expect a harder marking as is evidenced by
19 what's seen on the top left corner of the bite injury.
20 Q. On the top left corner of the bite injury wasn't in this
21 star shape that you've described?
22 A. No, I'm simply using it as an example of what happens when
23 you press something further into skin, you get a more prominent
24 marking. So your explanation that you can create a longer mark
25 with a similar object by pressing it harder. And my ex -- my
1 answer to that is that I don't agree with that because if you
2 pressed it harder, it would leave a more prominent marking
3 which we don't see. We only see a light marking down here.
4 Q. Okay. But in terms of the prominence of the marking you
5 received, you testified earlier that different areas of the
6 body will produce different type injuries because some areas
7 are soft and pliable and have --
8 A. Um-hum.
9 Q. -- a thick underlying area of muscle, fat, whatever,
10 whereas other areas are a very small skin surface with bone
11 directly underneath, correct?
12 A. Correct.
13 Q. And so that may have some effect on the extent of the
14 marking and the distance of the markings that were caused by
15 the same object, correct?
16 A. You have the same general tissue contour with the chin.
17 There's -- there's a very small layer of soft tissue over hard
18 bone over the area of the chin. It's the same general tissue
19 contour as we find on the forehead.
20 Q. And so that -- your basis is that the area of -- of tissue
21 over this part of the chin (INDICATING) is very similar to that
22 over the forehead, and that's why you reached your conclusion
23 that those don't have any connection?
24 A. That was part of it. And I said that the prominence of
25 the marking was the other part of it.
1 Q. You knew Doctor Peretti examined the body and performed
2 the autopsy and never made any mention of any indication or
3 suspicion that there were bite marks, correct?
4 A. I have no recollection of seeing the word bite mark
5 anywhere in any of his reports, no.
6 Q. Okay. And did you know that Doctor Sturner also examined
7 the bodies of the three victims?
8 A. No, sir, I did not.
9 Q. Okay. Now that you know that -- that he examined it --
10 and hypothetically --
11 MR. MALLETT: Excuse me, your Honor. He
12 doesn't know that, and I don't think the sate should
13 assert it as a fact when the witness doesn't know it.
14 He said he doesn't know it.
15 THE COURT: Well, he can assume hypothetically
16 that he did if you want to. Go ahead if that's what
17 you're asking him.
18 BY MR. DAVIS:
19 Q. Assuming hypothetically that Doctor Sturner -- the fellow
20 you serve on this editorial board with and is the chief medical
21 examiner for the State of Arkansas and a board certified
22 forensic pathologist --- also examined this body and made no
23 observation, no note, observed no indication of bite marks, and
24 also, Kris Sperry Observed -- the chief medical examiner for
25 the State of Georgia -- examined the autopsy photos, the
1 autopsy reports, the coroner's reports, and made no observation
2 or recognition that there were bite marks or any evidence of
3 bite marks, does that surprise you in light of your findings?
4 A. Without having a discussion with them, I really couldn't
5 answer that question because I don't know whether it's simply
6 an omission or they're saying, no, that they don't think it's a
7 bite mark.
8 Q. Okay. Would it further surprise you if Doctor Harry
9 Mincer, professor at the University of Tennessee Med School,
10 who is a forensic odontologist, reviewed these photographs and
11 also is of the opinion that these are not human bite marks?
12 A. Again, I would like to have a discussion with him about
13 his reasons for that opinion.
14 MR. DAVIS: One second, your Honor.
15 Pass the witness, your Honor.
16 REDIRECT EXAMINATION
17 BY MR. MALLETT:
18 Q. As you were going through the process, Doctor David, of
19 your examination, the autopsy photographs, examination of the
20 bite impressions, making of the xerox of the bite impression
21 and then the transparencies, examination of the marks made in
22 -- that appear in the photographs in the process of forming an
23 opinion, did what you saw tend to make you more comfortable or
24 less comfortable with the proposition that this is a human bite
25 mark we see?
1 A. The further I got along in the analysis, I became much
2 more confident of the opinion that I had. I was much more
3 skeptical at the beginning.
4 Q. What is the basis for your suggestion that it's probable
5 -- not within a reasonable degree of scientific certainty --
6 but probable that the bite mark we see lower in the autopsy
7 photograph on the cheek -- on the cheek is the result of some
8 sort of non-human animal involvement?
9 A. There is a patterned nature to the incised wound, that we
10 see. Typically, animal bites tend to be more incised than
11 human bites. It would be unusual to see a human bite where
12 there was actually laceration of the tissue surface. The term
13 that forensic odontologists tend to use for a bite wound that
14 actually cuts the outer surface would be an evulsive wound.
15 And because animals' front teeth tend to be more sharp, they
16 tend to create more incised wounds in biting than human teeth
17 do. When you see an evulsive wound created by human teeth,
18 typically it turns the tissue into a -- into a -- a mass of
19 unrecognizable flesh. It tends to masticate the tissue and
20 it's very difficult, if not impossible, to even compare it
21 when you see that.
22 Q. When you look at the patterned wound on the lower cheek of
23 the autopsy photograph that you have described as probably an
24 animal bite, are there characteristics that you see in the
25 wound that indicate to you whether it would've more likely
1 happened during his lifetime or afterwards?
2 A. I'm not a forensic pathologist. But I've had a
3 conversation with one of the forensic pathologists that --
4 MR. DAVIS: Your Honor, I would object if he's
5 getting ready to testify as to what somebody else has
6 told him regarding a conference in this case. We
7 don't have that person here to cross examine.
8 THE COURT: I'm gonna sustain the objection
9 unless it's an opinion that you -- you -- or
10 information that you would rely upon customarily in
11 order to render your own opinion in your field of
13 MR. MALLETT: I -- I don't mean to quarrel with
14 the Court, and I think the Court certainly would be
15 right on direct examination and I -- just for the
16 record, it was, I believe, Mr. Davis who asked him if
17 it was true within a range of probability as
18 distinguished from a range of scientific certainty
19 and I thought that having done that on cross
20 examination I would -- should be permitted to ask him
21 why he thought it was probably human or animal and
22 having opened that door whether using his knowledge
24 THE COURT: I don't have any problem with you
25 asking him about his opinion on whether it's animal
1 or human. He -- you can do that.
2 MR. DAVIS: Your Honor--
3 THE COURT: He's objecting to you allowing this
4 witness to testify as to hearsay information he
5 received from a pathologist. Now, what I've said an:
6 if you can qualify him, I'm gonna allow it. That I
7 will allow that testimony if it's the type
8 information that he customarily relies upon in order
9 to formulate his own opinion in his own area of
10 specialization or expertise.
11 BY MR. MALLETT:
12 Q. Was the source of that knowledge --
13 MR. DAVIS: Your Honor -- your Honor, my -- my
14 objection was to the question regarding the age of
15 the injury or whether it preceded or was post --
16 postmortem in nature.
17 THE COURT: I'm gonna sustain the objection to
18 that. It's not within his field of expertise.
19 MR. MALLETT: In that case, I guess we'll wait
20 for the pathologist.
21 Thank you very much, Doctor David.
22 THE COURT: I've got just a couple of quick
24 When does one's bite patterns -- at what age are
25 they fixed?
1 THE WITNESS: I'm sorry?
2 THE COURT: At what age is one's bite patterns
3 fixed? In other words, my -- I mean, is it two, ten,
4 twenty, fifty, or what age, or does it change
5 throughout life?
6 THE WITNESS: In what -- there --
7 THE COURT: I'm not talking about extractions
8 and all that. I'm talking about --
9 THE WITNESS: There are -- there are --
10 THE COURT: -- the pattern --
11 THE WITNESS: There are very small movements in
12 -- in the adult years. But typically not to the
13 extent that you could see them or note them.
14 THE COURT: At what age would -- like those
15 impressions you made, at what age would one's bite
16 or teeth be fixed in -- in --
17 THE WITNESS: Typically, once all of the
18 permanent teeth probably with the exception of the
19 third molars have erupted into place.
20 THE COURT: Well, is that age nine, ten --
21 something like that?
22 THE WITNESS: Um, the -- the second permanent
23 molars usually come in around twelve years of age.
24 You could still get partial arch markings, but
25 there's gonna be some drifting of teeth if all the
1 permanent teeth aren't in -- not necessarily a lot,
2 but there could be some.
3 THE COURT: Well, I noticed in your overlays
4 that they all fit fairly well the area that you
5 indicated. I'm thinking would -- would bite marks
6 not vary from individual to individual in their
8 THE WITNESS: When I talked about class
9 characteristics earlier, I meant that the -- the
10 pattern that you see of all human teeth are --
11 generally the widths are fairly consistent, okay,
12 and that the fact that they tend to be somewhat
13 circular in nature. But when you see a tooth that's
14 turned to the side or chipped, that's what's gonna
15 create a --
16 THE COURT: I understand that. I'm talking --
17 an alligator's got a bigger bite than I've got. Now,
18 that's what I'm asking you. At what age -- or is
19 there an age -- that those dimensions are fixed or
20 well formed?
21 THE WITNESS: You talking about the distance
22 between the --
23 THE COURT: Yes, sir.
24 THE WITNESS: Oh, okay. I misunderstood your
1 Generally speaking, adults can open wider than
2 children. Males can open wider than females. But
3 you can make a bite without having your teeth opened
4 all the way as far as they can open. So for instance
5 in this case, the -- the distance between the edges
6 of the top and bottom markings is a little over two
7 and a half centimeters. That's a little smaller than
8 you would expect for an adult, but it's not at all
9 uncommon to see people that -- that close down and
10 engage tissue partially closed.
11 THE COURT: Would that be consistent with an
12 eight- or nine-year-old?
13 THE WITNESS: Yes, it could be.
14 THE COURT: Is there any way to determine from
15 the photographs whether or not it was a normal bite
16 mark or one that could have been forced -- such as
17 the slamming of one's head against someone else's?
18 THE WITNESS: That's not out of the realm of
20 THE COURT: All right.
21 MR. MALLETT: I -- I -- the Court's opened up
22 inquiry in my mind and please cut me off if --
23 THE COURT: Well, it was in mine is why I asked.
24 MR. MALLETT: Yeah.
25 BY MR. MALLETT:
1 Q. Are you a -- we'll hear from a pathologist -- but are you
2 able to based on your training and experience to express an
3 opinion whether the bite mark that you see likely occurred in
4 anger or what kind of context it would have occurred in?
5 A. Without trying to read emotion into what happens when
6 someone bites, the location that you see bites occur in tend to
7 be fairly consistent with respect to the type of activity
8 that's going on. And that's as close as I'm gonna get to
9 description of emotions.
10 But the explanation is that typically when there's a sexual
11 activity involved, you see bite marks on so called erogenous
12 zones -- breasts, buttocks, genitals -- things of that nature.
13 Whereas when people bite out of anger it -- whatever portion of
14 the anatomy is available is bitten. I've seen bite marks on
15 feet, arms, fingers, noses, cheeks, necks, you name it, I've
16 seen it.
17 MR. MALLETT: All right, thank you.
18 MR. DAVIS: No further questions.
19 THE COURT: All right, you may stand down.
20 You're excused and free to go.
21 All right, it's 4:00 o'clock. Is -- have you
22 got some more witnesses that are handy or somebody
23 that you could put on in a short period of time?
24 MR. MALLETT: I do not have one I could put on
25 in a short period of time, your Honor.
1 THE COURT: Well, you all give me some idea of
2 time frame we've got here.
3 MR. MALLETT: Can we approach the bench?
4 THE COURT: Yeah.
5 (THE FOLLOWING DISCUSSION WAS HELD AT THE
7 MR. MALLETT: I've made -- I've made this
8 representation to the Court before. I think on my
9 side I've been fair with it. If I can have a little
10 time with this pathologist tonight, it will be
11 shorter and smoother tomorrow than if I just start
12 fumbling through it. I do have a pathologist in the
13 courtroom, but there's no way we could finish with
14 him today.
15 On the other hand, the longer Mr. Davis has the
16 longer it seems to take. I think I could tell the
17 Court that we can finish our case tomorrow and
18 probably give some time back, and that would be our
20 THE COURT: Finish it by when tomorrow? Have
21 you just got one witness remaining?
22 MR. MALLETT: Well, the problem is that Mr.
23 Davis is such a skillful lawyer that he has a lot of
24 cross examination and I'll probably have one other
25 witness in addition to the pathologist. It's not
1 gonna be as thorough with the pathologist as --
2 MR. DAVIS: You've got the pathologist and -- is
3 there somebody else that's out there?
4 MR. MALLETT: I have -- I have a psychologist
5 who I will talk to tonight about whether he might be
6 helpful or not.
7 MR. DAVIS: Judge, one of the reasons -- and --
8 and -- frank -- I mean, when I don't want -- I
9 learned about the pathologist yesterday morning, I've
10 learned about the psychologist today. You know, in
11 terms of preparing for cross examination, it makes it
12 a little more -- you're -- you're doing as much
13 discovery up there as you are anything else when you
14 learn about these witnesses at this point in time. I
15 don't think that the defense is compelled to tell us
16 who they're gonna call ahead of time.
17 THE COURT: Well --
18 MR. DAVIS: But I also feel that in some
19 circumstances when they call people to testify to
20 materials that we are seeing for the first time here,
21 it's gonna put us in a precarious position in terms
22 of immediately responding to them in our case. I
23 want to warn the Court of that. I may be asking
24 that, particularly for one or two of our witnesses,
25 to call them at sometime other than this week just
1 because there's been an abundance of information that
2 I need to address with them so they can respond.
3 MR. MALLETT: Your Honor, I'm certainly trying
4 to cooperate with the Court and the state in every
5 way I can. We've agreed to the videotaping to assist
6 him. I'm suggesting that I'm not seeing much point
7 in going ahead now in terms of the total amount of
8 court time that's gonna be utilized.
9 THE COURT: I want to be done Thursday. I've
10 got somewhere to be Friday.
11 MR. DAVIS: I may be done with a portion of ours
12 but I may not -- there's one witness I need to take
13 this video and sit down and go over it and -- and
14 review their testimony.
15 THE COURT: Well, okay.
16 MR. MALLETT: That's gonna be true in any case.
17 THE COURT: We might have to do it another time
18 and another place to finish it, but I was hoping we
19 could get through. But I --
20 MR. DAVIS: I was hoping that, too.
21 THE COURT: -- have to be gone Thursday evening.
22 I've got something that I'd scheduled that I'd
23 forgotten about. And I've got people from out of
24 town, so I can't help it.
25 I'm gonna quit early. The Court Reporter's
2 (RETURN TO OPEN COURT.)
3 THE COURT: All right, court will be in recess
4 until in the morning at 9:30.
5 ( ADJOURNMENT. )