OCTOBER 28, 1998
IN THE CIRCUIT COURT OF CRAIGHEAD COUNTY, ARKANSAS
STATE OF ARKANSAS PLAINTIFF
VS. NO. CR-93-45OA
DAMIEN ECHOLS DEFENDANT
HEARING ON RULE 37 PETITION
OCTOBER 28, 1998
FOR THE STATE: BRENT DAVIS
P.O. BOX 491
JONESBORO, AR 72403
ASST. ATTORNEY GENERAL
LITTLE ROCK, AR 72201
FOR THE DEFENDANT: CHET DUNLAP
P.O. BOX 54
TRUMANN, AR 72472
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 521
PARAGOULD, AR 72451-0521
INDEX (VOLUME VI)
WITNESSES FOR PETITIONER
JOSEPH I. COHEN
Examination by Mr. Mallett 1101-1140
Examination by Mr. Davis 1141-1182
Examination by Mr. Mallett 1182-1188
Examination by Mr. Davis 1188-1189
Examination by Mr. Mallett 1190-1197
Examination by Mr. Davis 1197-1200
PETITIONER RESTS 1201-1202
WITNESSES FOR STATE
Examination by Mr. Davis 1202-1207
Examination by Mr. Mallett 1207-1212
Examination by Mr. Davis 1212-1214
MOTION AND RULING 1215-1217
REPORTER CERTIFICATE 1308
1 JONESBORO, ARKANSAS, OCTOBER 28, 1998, AT 9:30 A.M.
2 THE COURTS: You said you needed a couple of
3 minutes more. Did you get all the time you needed,
4 Mr. Mallett?
5 MR. MALLETT: Actually, your Honor, if we could
6 have about three more minutes and I hate to make you
7 sit up there and wait.
8 THE COURT: That's all right.
9 MR. MALLETT: Call Doctor Joseph Cohen.
10 Your Honor, I've indicated that Dan Stidham is
11 in the courtroom. We do not anticipate recalling Mr.
12 Stidham. We would excuse him from the rule.
13 MR. DAVIS: Your Honor, we would ask that he be
14 kept under the rule.
15 THE COURT: If one of 'em asks, Dan, you've got
16 to go back.
17 (MR. STIDHAM LEAVING THE COURTROOM.)
18 JOSEPH I. COHEN
19 having been first duly sworn to speak the truth, the whole
20 truth, and nothing but the truth, then testified as follows:
21 DIRECT EXAMINATION
22 BY MR. MALLETT:
23 Q. Please introduce yourself to Judge Burnett.
24 A. Sir, your Honor, my name is Joseph Cohen. C-O-H-E-N.
25 I'm a medical examiner in New York City, a forensic
2 Q. And by whom are you employed?
3 A. I'm employed by the Office of Chief Medical Examiner in
4 New York City.
5 Q. In the Office of Chief Medical Examiner in New York City,
6 are there more than -- are you the only medical examiner?
7 A. No, sir, I'm not.
8 Q. How many medical -- how many medical examiners work in the
9 Office of Chief Medical Examiner in New York City?
10 A. Approximately thirty.
11 Q. And what generally are your duties as a physician within
12 the Office of the Chief Medical Examiner in New York City?
13 A. My duties, include performance of autopsies on a day-to-day
14 basis, to certify the cause and manner of death on death
15 certificates, on victims of violent crime and also suspicious
16 deaths that fall under the jurisdiction of the medical
18 Q. Do you have any special experience involving autopsies
19 involving bodies that have been recovered from water?
20 A. I have performed a number of bodies recovered from water,
22 Q. Under what circumstances?
23 A. Under many circumstances including bodies retrieved from
24 the local rivers, including the East River, Hudson River, also
25 from the nearby ocean areas. I performed autopsies on the TWA
1 800 disaster. Over two hundred bodies were retrieved from
2 water in that situation. It's a frequent occurrence.
3 Q. In addition to performing autopsies, do you from time to
4 time consult with other pathologists who are the primary
5 physicians performing autopsies?
6 A. Yes, frequently.
7 Q. Within a very general estimate, approximately how many
8 autopsies have you performed?
9 A. I've performed approximately thirteen hundred autopsies.
10 Q. And approximately how many autopsies have you consulted on
11 with other physicians?
12 A. At least that many I would say as an approximation -- over
13 a thousand.
14 Q. And as a pathologist doing autopsies, is it -- is it a
15 part of your responsibility in certain cases to go to the
16 scenes where crimes have been committed?
17 A. On certain situations the forensic pathologist does attend
18 the death scene, not always.
19 Q. Do you have an opinion whether in a triple homicide
20 involving evidence of sexual mutilation involving the killing
21 of three young boys in a case based primarily on circumstantial
22 evidence the defense should have the evidence reviewed by an
23 independent forensic pathologist?
24 A. In general?
25 Q. Yes.
1 A. I would expect that it would -- there would be a higher
2 certainty that that would happen in that type of a case as
3 opposed as to, say, a single homicide.
4 Q. All right. Before we go further, let me ask you briefly,
5 if you would tell Judge Burnett about your education?
6 A. Yes. I attended Arizona State University and the
7 University of Arizona where I received my Bachelor of Science
8 in biology. From there I moved to Milwaukee, Wisconsin. I
9 attended medical school at the Medical College of Wisconsin and
10 received my Doctor of Medicine degree there.
11 From there I moved back to my home town of Phoenix, and I
12 spent one year doing a general surgery internship. Then I
13 switched gears to pathology. I moved to Southern California,
14 and attended the University of California Irvine program in
15 Orange County for four years training in anatomic and clinical
17 From there I moved to New York where I spent one year
18 training in the sub-speciality area of forensic pathology, and
19 have been on the staff since.
20 Q. I am holding what is marked for identification as
21 Petitioner's Exhibit Number Sixty-two. I'd like to ask you to
22 tell us generally what this is. (HANDING TO WITNESS.)
23 A. (EXAMINING.) This is a copy of my C. V.
24 Q. And for the record, what is a C. V. and what general sort
25 of information is in there?
1 A. C.V. is a list of your background including some
2 biographical data and your experience in terms of education and
3 other professional experiences and so forth.
4 MR. MALLETT: May we move the admission of his
5 C.V., Exhibit Number Sixty-Two, your Honor?
6 MR. DAVIS: No objection, your Honor.
7 THE COURT: All right, it may be received
8 without objection.
9 (PETITIONER'S EXHIBIT NUMBER SIXTY-TWO IS
10 RECEIVED IN EVIDENCE.)
11 THE COURT: Hand it up here to me, please.
12 MR. MALLETT: (HANDING TO THE COURT.)
13 THE COURT: Thank you.
14 BY MR. MALLETT:
15 Q. As a pathologist, are you sometimes called to testify in
16 court proceedings?
17 A. Yes, frequently.
18 Q. Approximately how many times have you been called as a
19 witness in court proceedings?
20 A. Approximately fifty to sixty times in the last few years.
21 Q. And in -- on those occasions, how many of those times were
22 you called or sponsored as a witness on behalf of a defendant?
23 A. I was called by the counsel for the defendant zero times.
24 Q. Prior to today?
25 A. Prior to today.
1 Q. This is your first time to testify on behalf of a citizen
3 A. That is correct. I consider my testimony to be testimony
4 for the Court in general, but I'm usually -- in fact, always in
5 the past – I've been called by the prosecution.
6 Q. As a pathologist, are you called upon in court to express
7 opinions cast within a reasonable degree of medical
9 A. Yes, I am.
10 Q. Is -- is that the proper terminology that's customarily
11 used when you testify?
12 A. Yes.
13 Q. In this case, who contacted you?
14 A. I believe the first contact was by Melissa Martin, your
15 associate, back in August -- I think August tenth.
16 Q. All right. Did you request -- was any information
17 provided to you in a documentary written or published form?
18 A. I did have materials presented to me by mail by you and
19 Melissa, I believe -- also, one or two other individuals.
20 Q. Can you tell us just sort of a general short summary lists
21 of the materials that you were provided?
22 A. Yes, sure. I was provided three autopsy reports, a
23 psychological analysis by Brent Turvey, miscellaneous
24 investigative reports including some scene diagrams, testimony
25 by Doctor Peretti, testimony by Doctor Richard Jennings,
1 computer discs with many autopsy photos of the three decedents.
2 Q. Was there some additional information that you as a
3 pathologist would look at if you could write your own list that
4 you haven't had a chance to look at?
5 A. Well, did --
6 Q. In all -- in all fairness to the Court, is there anything
7 you've not seen that you really would like to see?
8 A. There certainly is.
9 Q. Such as?
10 A. Well, I have not seen any -- or perhaps one or two --
11 crime scene or scene photographs, and I have not seen until
12 just this morning, and briefly, exhibits from the former trial.
13 Q. Other than to the extent that the autopsy photographs you
14 were provided became exhibits at the former trial.
15 A. Apparently some of them did. I -- they're not labeled by
16 exhibit number on the computer disc that I received.
17 Q. Are you prepared to offer comments on the evidence and on
18 the opinions expressed by the state's witnesses at trial?
19 A. Yes, I am.
20 Q. Let me start then by focusing on what I will refer to as
21 the so-called aggravating characteristics of the offense as
22 seen by the pathologist who testified at trial, and in
23 particular, Doctor Peretti.
24 Let me direct your attention first to what is in evidence
25 at the trial as seventy-one B, and we referred to it in the
1 proceedings when you were not here as what we call the Steve
2 Branch autopsy photograph. I think that is forty-six in these
4 Have you examined that photograph previously? (HANDING TO
5 WITNESS. )
6 A. (EXAMINING.) Yes, I have.
7 Q. Have I directed you to -- well, let me back up.
8 MR. MALLETT: If the Court will allow, I will
9 from time to time read very brief passages from the
10 transcript in order to direct the witness's attention
11 to the testimony.
12 THE COURT: All right.
13 BY MR. MALLETT:
14 Q. On page ten fifty-six -- excuse me -- ten fifty-five
15 beginning at the very bottom line, I will read:
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 scrape that left
20 a pattern and inside the pattern you can see it'd almost like a
21 dome shape. It has this little area of square abrasion inside
22 here right on the top of the forehead and that injury you see
23 is typical of a belt injury -- the belt has a little buckle --
24 and that buckle has that little one that goes back and forth,
25 left to right, at the base of the latch. And that type of
1 injury we typically see with belts."
2 Would you please examine that portion of seventy-one B and
3 indicate to me whether that is an injury you would say within a
4 reasonable degree of medical certainty you typically see with
6 A. I wouldn't say with a reasonable degree of medical
7 certainty this was from a belt, no. I -- I would simply say
8 that the injuries described are suspicious for a patterned
9 injury. That is, an injury that may be reminiscent of one that
10 you would expect by a certain object.
11 Q. Are you qualified to evaluate a human body under
12 consideration for the presence or absence of bite marks?
13 A. Only in general. I'm not a forensic odontologist. I'm
14 not trained in that area. But I do from time to time see
15 injuries suspicious for bite marks.
16 Q. In the Office of the Medical Examiner for the City of New
17 York, is there access to an odontologist to assist pathologists
18 in forming their evaluations?
19 A. Yes, when necessary.
20 Q. And you – what steps does a pathologist – what steps do
21 you recommend and take as a pathologist upon the finding of
22 such a patterned injury?
23 A. Well, if I see an injury -- and it's not common -- but
24 when I do see an injury that is reminiscent of a bite mark, the
25 first step would be to photograph the area, including close-up
1 detail and swab the injury if I did suspect that it could be
2 a bite mark. I would then consult with a forensic dentist, and
3 he may or may not come to the office to examine the wound
5 Q. For what reason would you swab the injury that could be a
6 bite mark?
7 A. For evidence -- looking for evidence of saliva or DNA on
8 the wound.
9 Q. Did you find any indication when you read the autopsy
10 reports or reviewed the transcript of the testimony that such
11 swabbing was conducted in this case?
12 A. I did not see any reference to swabbing, no.
13 Q. Did you look for Exhibit Sixty-four B? Did I ask you to
14 look for sixty-four B in that stack of photographs that we
15 looked at before court this morning?
16 A. I don't recall.
17 MR. MALLETT: If I may, your Honor, I need to
18 recover sixty-four B.
19 THE COURT: All right. I don't remember what
20 that was.
21 MR. DAVIS: Your Honor, for purposes --
22 THE COURT: Oh, for the trial? Is that what
23 you're talking about?
24 MR. MALLETT: Yes, your Honor.
25 THE COURT: Okay, I didn't think we'd gotten
1 that far in this hearing yet.
2 MR. MALLETT: Yes, excuse me, I believe we have
3 the trial photographs here.
4 THE COURT: All right.
5 MR. DAVIS: Your Honor, just for clarification
6 on the record. When Mr. Mallett referred to Exhibit
7 Sixty-four B, he's referring to an exhibit number
8 from the previous trial, not an exhibit number in
9 this proceeding.
10 THE COURT: That's what I said. I don't think
11 we've gotten that far yet.
12 BY MR. MALLETT:
13 Q. Let me show you trial Exhibit Sixty-four B and ask you if
14 you've seen that photograph before? (HANDING TO WITNESS.)
15 A. (EXAMINING.) Yes, I have.
16 Q. Let me read to you, please --
17 MR. DAVIS: Which -- which one is sixty-four B?
18 THE WITNESS: (HANDING TO MR. DAVIS.)
19 MR. DAVIS: (EXAMINING.) Okay.
20 MR. MALLETT: I believe, if the Court will
21 allow, I will do my best to refer to exhibits under
22 the name of the trial exhibits because they're
23 already in part of the record in the case.
24 THE COURT: All right.
25 MR. MALLETT: And I if I slip, I'm not trying
1 to confuse the record, and I hope someone will
2 correct me.
3 BY MR. MALLETT:
4 Q. Looking at trial Exhibit Sixty-four B, which would be the
5 subject of this short series of questions and answers, let me
6 read to you, if I may, from page ten fifty-seven of Doctor
7 Peretti's testimony.
8 "Now, State's Sixty-four B is shoving the under surface of
9 the penis. And here we can see the injury and part of the head
10 and shaft of the penis. But what is important to note in this
11 photograph is that we have a clear line of demarcation here.
12 Okay, where we have this area which is involved, we have this
13 nice circumferential band going around the penis which you
14 also see on the front of the penis, the interior parts of the
15 penis, this line of demarcation which is separating the injury
16 from the uninvolved skin.
17 "Question: Doctor, do you base an opinion or have you
18 seen similar injuries? Do you know what the cause of these
19 type injuries could be?
20 "Answer: Well, you can see those type of injuries in two
21 situations. One, if an object is wrapped around like a belt,
22 for example, tightly around the penis, or those types of
23 injuries are more characteristic when you see young children
24 who have oral sex performed on them because the little
25 scratches are the teeth marks."
1 Did you consider that testimony?
2 A. Yes, I did.
3 Q. And did you -- can you comment and share with us your
4 opinions but that testimony in relation to fifty-four B?
5 A. Sixty-four B?
6 Q. Sixty-four B.
7 A. Yes. I agree with portions of the testimony in terms of
8 the demarcation between the discolored area and the more normal
9 appearing or tan area, and I do agree that the discoloration is
10 circumferential which means that it involves the front, back
11 and sides of the penis.
12 I do not, however, feel that I am in a position -- nor
13 anybody for that matter -- to interpret this finding as being
14 one connected with a specific type of object or scenario.
15 Q. In your -- in your reading, in your education, in your
16 training, in your work, have you ever looked at a pictures like
17 that and formed the opinion that it was a belt wrapped around
18 the penis?
19 A. I would never make that conclusion based on this
21 Q. Or from looking at that photograph, do you see evi --
22 evidence of a child having oral sex performed upon him -- a
23 child who is subsequently the victim in a murder?
24 A. I don't see that. I think it's pure speculation and that
25 this finding could be from a number of causes many of which I
1 probably have no clue myself.
2 Q. When you testify as a clinical pathologist, do you testify
3 from sheer speculation or to matters within a reasonable degree
4 of medical certainty?
5 A. Well, I try not to speculate. But I will formulate an
6 opinion with varying degrees of certainty depending on how the
7 question is posed to me.
8 Q. And if you are testifying to sheer speculation, do you
9 customarily make it clear that you are merely speculating, or
10 do you allow a jury to believe that you're giving some
11 scientific credence to your speculation?
12 A. Well, I state what I believe which would be either
13 speculation or with some firm degree of certainty.
14 Q. Continuing on on that page there is a discussion of
15 State's Exhibit Sixty-two B and Sixty-three which I will share
16 with you. Sixty-two B and sixty-three B -- have you seen these
17 photographs? (HANDING TO WITNESS.)
18 A. (EXAMINING.) Yes, sir, I believe I have.
19 Q. On page ten fifty-eight, the testimony continues.
20 "On State's Sixty-three B, Sixty-two B shown here, now
21 here all you can see all the -- on sixty-three you can see all
22 the abrasions or scrapes. You can see this darkened
23 discoloration. That is, the bruising of the ear."
24 MR. DAVIS: Excuse me. Excuse me, Ed, could I
25 see which two photographs those are?
1 MR. MALLETT: (HANDING TO MR. DAVIS.)
2 MR. DAVIS: (EXAMINING.)
3 BY MR. MALLETT:
4 Q. Continuing. "You can see this darkened discoloration.
5 what is, the bruising of the ear. But if you look very, very
6 closely you can see the fine little scratches which are
7 fingernail marks."
8 Within a reasonable degree of medical certainty, do you
9 see fingernail marks on those ears?
10 A. I see marks on and around the ear. I would never --
11 again, I think it's speculation. They could be caused by
12 fingernail marks, but there are many, many things that could
13 cause these type of injuries.
14 Q. Such as?
15 A. Well, they are -- I agree they are scrapes and abrasions.
16 I don't see any contused area or area of contusion which would
17 be a bruise. Most of what I see here is abrasion or scrapes.
18 Some of the small abrasions are a quarter inch or less.
19 They're -- they're small. Occasionally they're curvilinear.
20 They're not straight. But there's so much variation, an
21 there's so many types of objects that could cause these types
22 of injuries.
23 Q. Can you say within -- within a reasonable degree of
24 medical certainty what caused those injuries?
25 A. I could not, no.
1 Q. Would testimony that those were caused by human
2 fingernails be more than mere speculation in your professional
4 A. Yes, it would.
5 Q. It would be more than-- it would only be speculation or
6 it would be --
7 A. It sure would be speculation.
8 MR. MALLETT: I think I could save time if the
9 state will allow for me to simply move the stack
10 which appears to be in sequence beginning with sixty-
11 four C a little closer. And I'll do everything I can
12 to keep them from getting mixed up.
13 MR. DAVIS: Your Honor, I --
14 MR. MALLETT: My list apparently was incomplete.
15 Is there any problem with that?
16 MR. DAVIS: No. But I think that if you think
17 those are in sequence, you may be --
18 MR. MALLETT: Disappointed?
19 MR. DAVIS: --disappointed. All I ask is that
20 we be sure and keep them grouped together so we can
21 later return them to the Supreme Court Clerk's
23 MR. MALLETT: That's fine. Indicating I'm
24 keeping them on the lower right corner and I'll try
25 to keep them here until we return them to the state
1 across the room.
2 THE COURT: Doctor Cohen, when you testify, from
3 time to time, are you not asked to speculate, if you
4 will, or to give some educated opinion as to the type
5 device or cause of a particular injury?
6 THE WITNESS: Yes, your Honor. Frequently we
7 are asked questions regarding a connection between a
8 specific object and the injury.
9 THE COURT: All right. Have you not been asked
10 a question, well, Doctor, do you have an opinion as
11 to what might have caused that or could have caused
13 THE WITNESS: Yes, and very frequently the
14 answer, your Honor, is, many things could cause this
15 type of injury, and then I would list several
16 examples and go from there.
17 THE COURT: For example, the injuries described
18 to the penis, could that -- that could have, I guess,
19 reasonably been caused by any type of ligature?
20 THE WITNESS: That's possible. The appearance
21 from that exhibit almost looks like that finding
22 would be chronic -- something that's been there for a
23 while. I could not be certain of that. It -- it
24 could be a number of things really. It could be
25 something wrapped around the penis, and there are
1 many other types of scenarios that one could consider
2 for that.
3 THE COURT: All right.
4 BY MR. MALLETT:
5 Q. The Judge inadvertently, I'm sure, lead you a little bit
6 when he made the reference to some type of ligature. Did you
7 mean to be adopting the suggestion that there was some type of
9 A. Absolutely not, no.
10 THE COURT: I guess I did lead. (LAUGHTER.)
11 MR. MALLETT' I'm sure it was inadvertent.
12 BY MR. MALLETT;
13 Q. Within a reasonable degree of medical certainty, you would
14 not express the opinion it -- would you express an opinion that
15 any type of ligature or any specific origin at all caused that
17 A. That's correct.
18 Q. What's correct?
19 A. Your description of my interpretation.
20 THE COURT: Well, my question was based upon
21 the -- the description that both you and the doctor
22 in the original trial made that -- that the injury
23 circumscribed the entire penis which -- which would
24 suggest some kind of device or object or whatever
25 that -- such as a ligature.
1 THE WITNESS: Well, it could, and I'm sure there
2 would be a number of natural disease processes that
3 could cause a similar discoloration on the tip of the
4 penis. I'm not a dermatologist, and I did see a
5 short description by Doctor Peretti of the
6 microscopic appearance of that region which he
7 described as being hyperemic or blood vessels that
8 are engorged with blood. That is not a bruise. That
9 is more of a congestion of the tissue which means
10 more blood than usual in that area.
11 THE COURT: All right. All right, go ahead.
12 BY MR. MALLETT:
13 Q. Now, when you use the expression a congenital injury can
14 you help us -- please, for the record -- tell us -- by telling
15 us what you mean by congenital?
16 A. WelI, -- I didn't say congenital.
17 Q. All right.
18 A. But I did say a natural disease process. In other words,
19 I haven't seen that many penises -- yell, I have in my autopsy
20 performance, but again, I'm not a dermatologist, and there are
21 natural processes that can cause reddish or reddish purple
22 discolorations, and again, I -- I would not want to mislead
23 anybody by stating that this finding is consistent with a
24 specific object or scenario.
25 Just to be more complete and in all fairness, sucking or
1 pinching of the area could perhaps cause something similar to
2 that. But there are many, many things that could cause
4 Q. Let me show you, if may, what is marked as trial
5 Exhibits Sixty-five and Seventy-two B. (HANDING TO WITNESS.)
6 A. ( EXAMINING. )
7 MR. DAVIS: Sixty-five B?
8 MR. MALLETT: Sixty-five C and Seventy-two B.
9 MR. DAVIS: Sixty-five -- which individual is
10 that -- which victim?
11 MR. MALLETT: Let me see that. I'm not sure
12 that's the photograph.
13 THE WITNESS: (HANDING TO MR MALLETT.)
14 MR. MALLETT: (EXAMINING.) That's not it.
15 MR. DAVIS: Okay. Sixty-five C scratch.
16 MR. MALLETT: Seventy-two B.
17 MR. DAVIS: Okay.
18 MR. MALLETT: Let me withdraw that and go to --
19 do you have the autopsy -- the autopsy photograph up
20 there? State's Seventy-one D.
21 I'm sorry, your Honor.
22 THE COURT: Is seventy-one B the same as forty-
23 six in this case-- in this hearing?
24 MR. MALLETT: I have -- I have my notes and
25 pictures out of order because of that conclusion.
1 May I suggest if the Court would give us about
2 a five minute break I'd be able to run more smoothly?
3 THE COURT: All right. All right.
4 MR. MALLETT: Could we just have a recess?
5 THE COURT : Yes, that's – that's fine.
7 (RETURN TO OPEN COURT.)
8 MR. MALLETT: Do you have sixty-six A there?
9 MR. DAVIS: Yeah.
10 BY MR. MALLETT:
11 Q. Let me show you what is trial Exhibit Sixty-six A.
12 (HANDING TO WITNESS.)
13 A. (EXAMINING.)
14 Q. Have you seen that photograph before?
15 A. Yes.
16 Q. Now, referring to some of the so-called aggravating facts
17 and circumstances offered at trial through the testimony of the
18 state's forensic pathologist, reading from page ten forty-six.
19 "Exhibit Sixty-six A is showing the lower" -- beginning at
20 line six. Excuse me.
21 "In State's Exhibit Sixty-six A is showing then --
22 MR. DAVIS: Your Honor, at this point, we're
23 prefacing all these questions in terms of
24 characterizing them as aggravating circumstances
25 shown at trial, and I don't know if that's -- if
1 that's in the record somewhere as testimony that
2 these marks represent aggravating factors, it's one
3 thing. But my concern is that that -- that
4 a characterization is being made by, defense counsel for
5 purposes of pointing and directing that these
6 particular injuries were ones that were directly
7 related to aggravating circumstances in the penalty
8 phase, and if that's his characterization, I think
9 it's improper to ask questions and premise them with
10 that remark because that's not something that's
11 coming from the testimony or the transcript of the
13 MR. MALLETT: I believe that he's correct, your
14 Honor, that I can't invade the minds of the jurors
15 and announce to the Court how much weight any juror
16 gave to these photographs, and I'll withdraw that
18 THE COURT: All right.
19 BY MR. MALLETT:
21 Q. Reading from page ten forty-six at line six.
22 "State's Exhibit Fifty-six A is showing the lower lip and
22 the bridge of the nose. The bridge of the nose – now, the
23 bridge of nose, we can see the abrasion scrapes here on the
24 lower lip. If you look very carefully, you can see that
25 discoloration there -- that faint discoloration. That is
1 bruising or a contusion.
2 "Questions: Doctor, in your experience as a medical
3 examiner have you ever -- have you -- have you seen instances
4 or are you familiar with cases in which there are injuries and
5 bruising to the ears and also injuries to the mouths of the
7 "Answer: Well, those types of injuries we generally see
8 in children who are forced to perform oral sex."
9 Did you consider that testimony?
10 A. Yes, I did.
11 Q. And would you please comment on that testimony?
12 A. Yes, sure. I do agree that this finding on the lower lip
13 -- it is on the inner aspect of the lower lip -- it is faint
14 and I do agree that it is most likely a subtle contusion or
15 bruise. I do find it rather absurd that one would speculate or
16 offer some sort of an opinion on the mechanism by which this
17 subtle small injury on the inner lip was sustained and
18 certainly by forced oral sex.
19 Q. On cross examination by Mr. Ford, Doctor Peretti
20 testifies on page eleven hundred beginning at line seventeen.
21 "Doctor, based on what you have seen in your examination
22 of these boys and based on our experience and your training,
23 based on a reasonable degree of medical certainty, isn't it --
24 isn't it your opinion that these boys were not forced to
25 perform oral sex?
1 "Answer: Well, that's difficult, you know. They have
2 injuries that are consistent with that, you know. They have
3 the ear injuries. They have the mouth injuries. Like I said
4 before, it could be another modality how those injuries were
5 sustained, but we see those type of injuries in people who are
6 forced to perform oral sex. But then again, there are no
7 injuries to the back of the mouth, and one way you can explain
8 that is that the mouth wasn't totally opened. The teeth were
10 All right "Question: Are you telling the jury that in
11 your opinion based on a reasonable degree of medical certainty
12 these boys were forced to perform oral sex?
13 "Answer: No, I am saying they had injuries float we
14 normally see in people who are -- especially children,
15 especially the ear injuries, who are forced to perform oral
17 Do you hear in there Doctor Peretti expressing an opinion
18 within a reasonable degree of medical certainty one way or
20 A. No.
21 Q. Have you had in your experience as a pathologist, review
22 of cases in which a finding was made that there was forced oral
23 sex and the absence of internal injury to the mouth was because
24 the teeth were clenched? Could you -- can you imagine there
25 existing such a case throughout all the literature you've read?
1 and all the experience you've had and all the doctors you've
2 talked to?
3 A. I've never seen that, no.
4 Q. What's your evaluation of that proposition?
5 A. Well, I think it's misleading. Injuries are injuries, and
6 generally we describe them, and we document them, and then we
7 are frequently asked to render an opinion regarding a cause/
8 effect relationship between the inflicting object and the
9 injury. Many times we can say with a fairly high degree of
10 medical certainty that something matches. Most of the time we
11 can't, but certainly in this situation you couldn't. These are
12 very nondescript injuries that could have been inflicted by a
13 number of mechanisms including slapping, punching, falling.
14 Even some of them actually may be post-mortem injuries. In
15 fact, I -- I think there's a very high degree of certainty that
16 some of the injuries that we see on the victims are post-
18 Q. And for simplicity, what do you mean by post-mortem?
19 A. Post-mortem would be findings or markings on the body that
20 occur after the time of death. They could be from marine or
21 animal activity, from decomposition, from other -- from being
22 dragged in -- in -- in the wooded area, for example. There are
23 many, many types of ways to sustain post-mortem inflictions.
24 Q. For example, let's look at what is in evidence as forty-
25 six in these proceedings and trial Exhibit Seventy-one B
1 generally referred to as the Branch autopsy photograph. Do you
2 see evidence in there of any pose -- do you see evidence in
3 there that all the injuries sustained to that poor victim were
4 caused by the perpetrator of the offense directly?
5 A. Not necessarily.
6 Q. What other causes do you see as possibilities within a
7 reasonable degree of medical possibility?
8 A. Well, the injuries on the left side of the face of Steven
9 Branch do show some markings that involved the soft tissue
10 underneath the skin. At this magnification, it's difficult to
11 ascertain what they are. From this magni -- magnification, I
12 would simply say they are defects in the skin or markings in
13 the skin that involved the soft tissue. They're very
14 nondescript. They could be from post-mortem marine activity.
15 It is possible given that the children were found in water.
16 Q. With reference to the injuries seen in that exhibit --
17 and do you have seventy-two B there, also?
18 A. Yes, I do.
19 Q. All right. Look at seventy-two B.
20 MR. DAVIS: Which one's seventy-two B?
21 MR. MALLETT: Trial Exhibit Seventy-two B.
22 BY MR. MALLETT:
23 Q. On page ten fifty-five at line one.
24 "Also, in State's Exhibit Seventy-two B shows multiple --
25 shows a confluent area of abrasions, scraping involving the
1 face. Also, overlaying this area we have multiple irregular
2 and gouging type cutting wounds. These little irregular areas.
3 "Question: Doctor, would those cut marks be consistent
4 with come sharp object such as a knife?
5 "Answer: Yes.
6 "Question: When you say, irregular gouge marks, what
7 causes would cause an irregular mark such as that?
8 "Answer: Well, we generally see these type of injuries
9 when an object such as a knife or a glass, or any sharp object
10 is put into the skin and either the person doing the stabbing
11 is twisting and pulling the knife, or a combination of the
12 person being stabbed and they are not standing stills they're
13 going to be moving around. So as they're moving, the knife is
14 going to twist and as the knife is being pulled out, it's going
15 to pull out all the soft tissues, the fat in the cheek region,
16 and in this photograph you can see that the ear was abraded,
17 and it is contused like the scrape, the bruising and its
18 overlying scratches; and we can also see abrasions and the
19 superficial cuts involving the scalp region."
20 Do you see in that photograph marks that you would call
21 marks from a stabbing or from a knife?
22 A. Again, this photograph is even at a lower magnification
23 than the last one -- Exhibit Seventy-one B. I find it very
24 difficult to find a cause/effect relationship between a
25 specific object and the findings on the left side of the face
1 of Steven Branch.
2 There are markings that do involve the subcutaneous
3 tissues. There's a lot of information in that question, but
4 with -- with regard to the gouging or cutting nature of these
5 findings, I Just can't say with any certainty at all that a
6 knife could have caused some of these wounds.
7 Some of the wounds may actually be post-mortem. I do
8 agree that the discoloration on the left side of the face is
9 most likely an abrasion. I certainly would not rule out some
10 of these markings being inflicted by an object, but I -- I
11 certainly wouldn't pin it to a knife or a piece of glass.
12 And, as I mentioned earlier, post-mortem marine activity
13 is always a consideration, live seen many cases in which
14 victims look a lot worse than this -- and this is bad – but a
15 lot worse than this just from post-mortem marine activity.
16 Q. Let me show you Exhibit Six -- trial Exhibit Sixty-nine Co
17 (HANDING TO WITNESS.)
18 A. ( EXAMINING. )
19 Q. In referring to trial Exhibit Sixty-nine C on page ten
20 sixty-six, is a discussion of the autopsy on young Christopher
21 Byers And the following testimony appears on page ten sixty-
22 six at line twelve.
23 (AS READ.) "We have all these gouging type injuries that
24 have been described similar to the one we saw in the face. But
25 it is important to note here that we have contusions and
1 bruising of the inner aspect of the thighs. These type of
2 injuries we commonly see in female rape victims. And also
3 there you will note on the feet you can see some bruising
4 contusions on the skin where you can see the ligature was tied.
5 These marks here."
6 MR. DAVIS: I believe you misstated that. I
7 think it says, "bruising and contusions on the
9 MR. MALLETT: You're correct. I'll reread the
10 whole sentence. I apologize for dropping words.
11 BY MR. MALLETT:
12 Q. "And also there you will note on the feet you can see some
13 bruising contusions on the ankle, and you can see where the
14 ligature was tied. These marks here."
15 Would you please direct your attention to sixty-nine C and
16 tell me whether you see injuries you commonly see in a female
17 rape victim.
18 A. (EXAMINING.} I see at this very low magnification
19 photograph, I do see significant discoloration in the inner
20 thighs and the genital region. I have seen many victims of
21 alleged sexual assault which many of them have no markings at
22 all on the body, including the inner thighs. Some have
23 injuries but I -- I certainly don't see it commonly, and I
24 don't think many people do see findings such as this commonly
25 in a female rape victim.
1 Calling – specifying a female rape victim implies
2 coitus -- insertions of the penis in the vagina -- and I -- I
3 think it's misleading.
4 Q. Let me show you what is marked as State's Exhibit Seventy--
5 three C. Trial exhibit Seventy-three C. (HANDING TO WITNESS.)
6 A. (EXAMlNING.)
7 Q. Reading from page ten sixty-seven at line sixteen.
8 "State's Exhibit Seventy-three is a close-up view of the
9 injuries, the gouging type wounds, cutting wounds that we have
10 in the inner aspects of the thigh. This red area here that we
11 can see is the shaft of the penis.
12 "Doctor, is there also serration type wounds, or serrated
13 type wound patterns contained in that photograph?
14 "Answer: There is a serrated type pattern here, yes.
15 "Question: Could you take my pen and circle that area --
16 the ones that you denote are serrated? Now, Doctor, when you
17 say serrated, what do you mean?"
18 Turning the page. "Answer: "Well, I'm talking about for
19 example, a typical serrated knife is a steak knife -- that
20 pattern of serration.
21 "Question: Okay, in this case, the items that you've
22 marked there seems to be those three or four wounds, there is a
23 distance between those wounds, is that correct?
24 "Answer: That's correct.
25 "Question: That would be consistent with the serration of
1 the blade that inflicted that?
2 "Answer: Yes, to an extent providing there is no twisting
3 or turning."
4 Is there a portion of Exhibit Six -- Seventy-three C that
5 is in fact circled in ink?
6 A. Yes, there is.
7 Q. And would you comment on your consideration whether that
8 indicates a serrated knife pattern?
9 A. Well, I --- I use the term serrated usually to refer to a
10 knife and not to an injury on the body. The injuries I
11 describe as what they are in terms of the size and orientation
12 of the injuries. But to day that this is a serrated pattern is
13 very misleading.
14 What we have here are three small marks on the skin which
15 do penetrate slightly into the skin and through the skin, but
16 there are many, many similar and nondescript markings all
17 around that area, and I would simply refer to those as defects
18 or markings. Many of these actually would qualify, or I would
19 have the suspicion that some of these could be post-mortem.
20 There's no reaction around the wound. There's no blood in the
21 wound. They look dry, and they're not red.
22 I can't exclude ante-mortem injury, but they' re suspicious
23 for post-mortem. There's no real pattern. They're haphazardly
24 arranged on the inner thigh.
25 Q. On page ten seventy-six, Mr. Davis is questioning, and at
1 line number eight, Mr. Davis says, "Doctor, in performing the
2 autopsies on these three victims, did you note anywhere in your
3 report or indicate any insect bites or mosquito bites on the
4 three children?
5 "Answer: There was no evidence of animal activity, comma,
6 insect bites."
7 Did you review that testimony?
8 A. Yes, I did.
9 Q. Setting aside the subject of insects alone, tell us
10 whether there is within a reasonable degree of medical
11 certainty evidence of animal mac -- activity on these three
13 A. I don't think I can say with a reasonable degree of
14 medical certainty that these are post-mortem; however, I do
15 feel that there is a degree of suspicion that they may be.
16 Q. And what type --
17 THE COURT: May be what?
18 MR. MALLETT: May be --
19 THE WITNESS: They may be post-mortem.
20 BY MR. MALLET:
21 Q. And what is the "they" that you're referring to?
22 A. The markings on the inner thigh.
23 THE COURT: I think the question was whether or
24 not you saw or observed any animal activity. Is that
25 not what you asked?
1 MR. MALLETT: That is correct, your Honor.
2 BY MR. MALLETT:
3 Q. Did you observe evidence of animal activity?
4 A. Evidence of animal activity?
5 Q. Yes, sir.
6 A. I see areas that are suspicious for animal activity.
7 Q. Tell me what sort -- in your experience -- what sort of
8 animal activity you have observed in autopsies on bodies that
9 were recovered from the water.
10 A. We see a number of -- the result of fish and other marine
11 life as they interact with the dead body post-mortem in the
12 water, and I'm not a specialist on fish, but we see many, many
13 types of nondescript defects or markings due to marine
15 Q. Let's talk about the scene investigation. Did you observe
16 in your study of the reports that these bodies were removed
17 from the water and laid on the bank before the time the coroner
18 arrived to perform his statutory duties?
19 A. That's what I gathered, yes.
20 Q. Is that the normal procedure with which you're familiar?
21 A. No, it's not. Usually the bodies are left in the
22 positions that they're found until the coroner and investigator
23 or the medical examiner arrives to do their investigation.
24 Q. For what reason?
25 A. So as not to disturb the scene and, specifically, not to
1 disturb the relationship between the bodies and their
3 A. Did you notice a period of delay between the discovery of
4 the bodies and the arrival of the coroner?
5 A. Yes, I believe there was a delay.
6 Q. Do you recall about how much that was?
7 A. Approximately two to two and a half hours.
8 Q. Would you comment on the consequences of this delay?
9 A. I can't say much. I -- it's preferable to have the
10 medical examiner or representative on the site much sooner that
11 that but it's -- it's somewhat of a delay, and it is preferable
12 to have somebody on site as soon or, say, within an hour, hour
13 and a half.
14 Q. Did you find in the coroner's report or the autopsy report
15 a description of the relative orientation of the bodies as the
16 were found in water?
17 A. No, I did not.
18 Q. Is that -- is that a -- would you comment on the
19 significance of that?
20 A. Yes. Again, disturbing the relationship between the
21 bodies and the environment can prevent the pathologist from
22 rendering opinions such as whether or not marine activity could
23 have been responsible for certain wounds. In other words, if
24 the bodies were in water, what parts of the body was -- was in
25 the water, what parts were out of the water. That -- that kind
1 of information would be helpful.
2 Q. Did you notice in the autopsy report or the coroner's
3 report a description of the environment with respect to the
4 bottom of the creek in which the bodies were recovered?
5 A. I did not, no.
6 Q. What would be the significance of such a description?
7 A. Well, anytime bodies are found in water there's always a
8 chance and a very good chance that movement of the bodies
9 either against the bottom of the water -- body of water -- or
10 the side of the -- the edge of the water -- those mechanisms
11 could cause post-mortem -- poet-mortem injury. They frequently
13 Q. Did you find in your study of the autopsy report and the
14 coroner's report any indication that the pathologist requested
15 that the clothes be provided to him to be examined in
16 connection with performing his autopsy?
17 A. No, I did not.
18 Q. Is that unusual?
19 A. It's not preferable. It's best on homicide cases for the
20 pathologist to request the clothing so that he can with his own
21 eyes look at the clothing and see if there are any defects,
22 blood or any trace evidence, anything that may be helpful to
23 him in rendering opinions regarding the scenario or possible
24 scenario by which injuries could have been inflicted.
25 Q. Did you find any indications that the pathologist in
1 evaluating the nature and cause of death examined the clothing
2 for any stains or any damage?
3 A. I didn't.
4 Q. What would be the significance of that?
5 A. Again, it would just be of evidentiary vaIue to have as
6 much information as possible.
7 Q. Did you see in the autopsy report a report that larvae of
8 insects were found on the person of one of the decedents, the
9 young boy named Moore?
10 A. I did see reference to that, yes.
11 Q. What was -- what is the significance of that to you as a
13 A. As a pathologist, the finding of fly larvae or larvae on
14 the body would suggest a certain time interval following death
15 which would be variable depending on what type of larvae they
17 Q. As a pathologist, what is your custom and practice and
18 what is the custom and practice of pathologists and others in
19 your field as you know it upon the discovery of insects or
20 insect larvae upon the body being examined?
21 A. Basically, just to document and photograph the evidence,
22 the presence of any eggs or larvae on the body.
23 Q. For what purpose?
24 A. For the purpose of later viewing those photographs and
25 documentation to help with rendering opinions regarding time of
2 Q. And what sort of expert is of assistance to a pathologist
3 in determining whether the presence of larvae, the age of the
4 larvae, the presence of the eggs, the size of the eggs, the
5 stage of the larvae, whet sort of expect is of assistance to a
6 pathologist in using that information to try to establish a
7 time of death?
8 A. A forensic entomologist may or may not be helpful.
9 Q. Did you see an indication as you were reading the
10 testimony and the reports whether Doctor Peretti attended the
11 crime scene in connection with preparing his autopsy report?
12 A. I didn't see any reference to that, no.
13 Q. Is it the custom in the jurisdiction where you are a
14 pathologist to rely on homicide detectives and officers to
15 provide the pathologist with information about the scene of the
17 A. Yes. We have medical legal investigators which respond to
18 the scene to document and photograph the scene.
19 Q. And are these ordinary uniformed officers and members of
20 the police department?
21 A. No, they're actually members of our medical examiner's
22 office. They're full-time investigators trained to document
23 and photograph scenes of death.
24 Q. Did you notice that in his pathological findings Doctor
25 Peretti found as a matter of pathology that two of the victims
1 died from drowning?
2 A. Yes, I did.
3 Q. Did you find the descriptions in his autopsy to support
4 the finding that they died from the pathology of drowning?
5 A. I found -- there was -- there were features or findings
6 that could support drowning, but they're non-specific. The
7 features are quite non-specific and can be found in just about
8 any type of death including natural deaths and deaths due to
9 head trauma and so forth.
10 Q. What is the difference between finding a person and
11 finding that drowning is the cause of death versus finding a
12 person in submersion without finding drowning as the cause of
14 A. Well, any bodies that are found in water certainly are
15 submerged in water, but they don't necessarily have to have
16 died from drowning. And it's important to distinguish between
17 bodies submerged in water and -- and bodies that died as a
18 result of drowning.
19 Q. What is the significance of finding a body that has died
20 and then been submerged in water as distinguished from a body
21 that has been drowned in the water?
22 A. Well, drowning implies that the -- the manner of death
23 occurred there in the water, whereas bodies that die from other
24 mechanisms of death -- other manners of death -- that are found
25 elsewhere -- or actually found in water but not due to drowning
1 could have -- could have died elsewhere.
2 Q. Did you see any -- the indications that there were blows
3 to the head that were lethal in nature?
4 A. Yes, definitely on all three victims.
5 Q. And is drowning a diagnosis that would be exclusive of
6 other causes of death?
7 A. Drowning itself is a diagnosis of exclusion. Generally,
8 it relies heavily on the clinical or historic information,
9 witness accounts, and many times there are not wit -- witness
10 accounts, but drowning is a diagnosis of -- of exclusion
11 because the findings are quite non-specific, and it's very
12 important to exclude other mechanisms or manners of death prior
13 to labeling a death as drowning.
14 Q. Why would it be important to you -- particularly in the
15 City of New York -- to include or exclude drowning as the cause
16 of death?
17 A. Well, as I said earlier, drowning implies that the death
18 occurred in the water. And excluding drowning can place the
19 death elsewhere, be it ten feet away from the water or a
20 hundred miles away from the water, but away from the water.
21 Q. There was discussion in some of the testimony giving the
22 implication that there might have been some evidence of anal
23 sodomy in connection with the death of these children. Do you
24 recall reading that testimony?
25 A. I believe I did, yes.
1 Q. And you also read the autopsy reports?
2 A. Yes, I did.
3 Q. Did you find the indicators confirming such a finding?
4 A. I did not. I couldn't exclude it myself, but I certainly
5 did not find any findings that would be suggestive of sodomy.
6 Q. Is the fact of a dilated rectum evidence of sodomy?
7 A. Excuse me?
8 Q. Is the fact of a dilated anal orifice indicative of
10 A. Absolutely not. A dilated anus is seen frequently in the
11 post-mortem interval due to relax -- relaxation of the anal
12 sphincter. In most deaths we see relaxation or dilatation of
13 the anus.
14 Q. So if you as a board certified clinical pathologist would
15 find a dead person with a dilated anus and no marks, abrasions,
16 tears, lacerations, blood or other injury, would you speculate
17 to a jury that there was anal sodomy in the death of the person
18 under consideration?
19 A. As a forensic pathologist?
20 Q. Yes, sir.
21 A. No, I would not.
22 MR. MALLETT: Thank you very much.
23 Pass the witness.
24 MR. DAVIS: Go on now or --
25 THE COURT: Well, do you want to take a recess?
1 MR. DAVIS: It doesn't matter to me, Judge.
2 It's whatever you want to do. Are you gonna
3 interrupt me between now and noon?
4 THE COURT: Well, we'll take a ten minute
7 (RETURN TO OPEN COURT.)
8 CROSS EXAMINATION
9 BY MR. DAVIS:
10 Q. It's Doctor Cohen?
11 A. Yes, sir.
12 Q. Okay. And, Doctor Cohen, I'm gonna --- I hope to keep this
13 in some sort of logic -- chronological order and I'm just gonna
14 try to go through where I've written notes down as far as
15 questions about what you testified to previously.
16 In regards to your qualifications, you've been a forensic
17 -- a practicing forensic pathologist for how long?
18 A. About five years. I'm in the fifth year.
19 Q. Okay. And so you began in 1993?
20 A. Four.
21 Q. 1994?
22 A. (WITNESS NODS HEAD.)
23 Q. Okay. So that's --
24 A. Four and a half years.
25 Q. Okay. And what -- January of ninety-four?
1 A. July.
2 Q. Okay. So at the time these cases went to trial back in
3 March of 1994 and February of ninety-four --
4 A. Ninety-three.
5 Q. -- ninety-three, you wouldn't have been available?
6 A. That's correct.
7 Q. Okay. And you indicated that in that five years you
8 performed about thirteen hundred autopsies; is that right?
9 A. That's correct.
10 Q. Okay. And when you render -- when you perform an autopsy
11 now, when you render an opinion, is part of that opinion based
12 not on -- only on your training but the experience you've
13 gained in that five years as being a forensic pathologist?
14 A. It's based on experience and common sense.
15 Q. Okay. So the experience and knowledge you gain from case
16 to case kind of accumulates and you become -- as you gain that
17 experience, you're able to apply that experience in formulating
18 and rendering opinions, correct?
19 A. That' s correct.
20 Q. Okay. And so when you evaluate the autopsy that was
21 performed here and the physical evidence, and your testimony
22 today, a part of that -- a portion of your opinion is based on
23 your experience?
24 A. Yes, it is.
25 Q. Okay. And you would expect any forensic pathologist who
1 performed an autopsy to not only use his formal education but
2 also the experience that he's derived over the course of his
3 years of practice, correct?
4 A. And common sense, yes.
5 Q. Okay. Now, you work in an office where you say there is
6 -- there are thirty other medical examiners?
7 A. Yes, there are approximately thirty.
8 Q. Okay. And when you have a particularly -- let me ask you
9 this: Do you have cases that come in that are run-of-the-mill
10 cases? The case you see a dime a dozen of -- the shootings on
11 the street corner, single homicides that you all deal with en
13 A. Yes, we do.
14 Q. Okay. And are there other cases that because of their
15 peculiar nature or their uniqueness receive more attention or
16 at least you focus on a little more because they're unique or
17 different in some respects?
18 A. Yes. I -- the focus is different. The terms of the
19 procedure is basically the same -- just performing the
20 investigation adequately.
21 Q. Okay. And when those more unique cases come in, is it
22 common in those cases to collaborate with your other MEs --
23 say, if that case is assigned to you -- for you to go to other
24 medical examiners in the office and solicit their opinions and
25 input in regard to your findings, or how you -- how the body
1 appears, things of that nature?
2 A. That's a frequent occurrence to run things past your
3 colleagues to ask their opinions. I do it, and I do it
4 frequently, but in the end I -- I develop my own opinion.
5 Q. But if an experienced, noted and learned colleague
6 suggests something, points out something that you may not have
7 seen, may have overlooked, may not have placed significance on,
8 and it makes sense, it's intelligent, the idea fits with logic,
9 you use that sometime, right?
10 A. Not very often, but I certainly would use that in that
11 situation, yes.
12 Q. Okay. So most of the time you just -- if based on your
13 experience and training this is what you think is right, then
14 what the opinions of other pathologists are -- as long as
15 you're -- you feel comfortable based on your experience and
16 training, then that's the call you make?
17 A. That is the call I make.
18 Q. Okay. And if you have differing opinions -- as I
19 understand this -- apparently, in your office some of the other
20 MEs in cases have differing opinions from yours?
21 A. They do occasionally, yes.
22 Q. Okay. And you go with your own even though there are
23 differing opinions?
24 A. I go with my own. The only way I would change it would --
25 would be I there was something I overlooked or if somebody I
1 felt with a vast amount of more experience than me could
2 contribute to my decision. But it's pretty rare at this point
3 after four or five years to have it go that way.
4 Q. Okay. You indicated -- I can't remember who asked the
5 question -- it may have even been the Court -- but you -- Mr.
6 Mallett was asking you how many times have you testified for
7 the defense and how many times have you testified for the
8 state. As I understand it, you've been called as a witness by
9 the state in all the cases you've testified in, correct?
10 A. In criminal trials, yes. I've had one or two civil trials
11 called by the defense, but in a criminal -- criminal proceeding
12 every time by the D. -- district attorney.
13 Q. Okay. And in that scenario, do you consider your
14 testimony -- or is your job as a testifying forensic
15 pathologist to testify to benefit the state, or is it to
16 present in an objective fashion the findings and conclusions
17 that you can render based on your experience and training?
18 A. It's always an unbiased opinion based on facts that I've
19 obtained through the investigation and my autopsy.
20 Q. Okay. And it is an opinion, right?
21 A. It is an opinion.
22 Q. Okay. And, in fact, the training that you receive as a
23 forensic pathologist and accepted procedure is that -- that
24 your job is to be objective and unbiased, correct?
25 A. It certainly is.
1 Q. Okay. And you would expect that of other medical
2 examiners, correct?
3 A. I sure would.
4 Q. And, in fact, did you -- did you review the testimony of
5 these proceedings in terms of any of the testimony of Doctor
7 A. I'm sorry?
8 Q. Did you -- did you review the testimony -- the transcript
9 of the testimony of Doctor Peretti?
10 A. Yes, I did.
11 Q. Okay. And did you note in there at page -- just a minute
12 here -- eleven seventeen where Doctor Peretti said -- actually,
13 the Court made the comment -- some comment about Doctor Peretti
14 being a state witness, and he said in the testimony, "I would
15 just like to clarify one fact for the Court that I am not a
16 prosecution witness. The crime lab is an independent agency.
17 We don't work for the defense. We don't work for the
18 prosecution. We're an independent agency. So I'd just like to
19 clarify that."
20 A. Yes, sir, I do recall reading that.
21 Q. Okay. And that is a proper -- I mean, you would consider
22 that acceptable and proper and the thing --- the goal that all
23 medical examiners should -- should attempt to achieve, right?
24 A. I would agree with the statement that he made, yes.
25 Q. Okay. Now, do you receive cases that you work on where
1 when you receive them, there's already a suspect in custody and
2 you're aware of that?
3 A. Occasionally, yes.
4 Q. Okay. And you receive cases where you receive the body to
5 have an autopsy performed, yet at that point in time, the --
6 the door is wide open as to who the suspects may be, correct?
7 A. Absolutely.
8 Q. Okay. And do you approach in terms of your job any
9 differently how you deal with those type cases?
10 A. I don't believe so, no.
11 Q. Okay. In the instance where there is no suspect or no
12 arrest has been made, nothing -- anything of that nature -- do
13 you consider it important in your job that you view and examine
14 all the evidence if -- so that anything that might be of value
15 in ascertaining who the criminal was and who the perpetrator
16 was, is found and discovered and provided to law enforcement?
17 A. Whatever is available is good. The more the better.
18 Q. Okay. And there can't be any question of objectivity at
19 that point in terms of wanting to hide evidence or not disclose
20 evidence against someone because nobody knows who it is that
21 may have done it, right?
22 A. Correct.
23 Q. The whole idea is to get as much evidence as possible
24 that's relevant and is there so that you can help solve the
1 A. The purpose is to generally perform autopsies and render
2 cause and manner of death determinations and answer other
3 questions relating to the investigation.
4 Q. Okay. Let--- let me digress just one minute. I notice
5 you said that you were originally contacted by Melissa Martin?
6 A. Yes.
7 Q. How did she come up with you?
8 A. I've been doing some private work for the past year, and
9 she called me, and we talked and went from there.
10 Q. Okay. And that -- that doesn't help me out much. How did
11 the private work you've been doing for the last year help you
12 get hooked up with Melissa Martin?
13 A. I'm not really sure how she found out about me.
14 Q. Okay. What kind of private work was that? Is it for --
15 is it -- in another criminal defense case?
16 A. Other cases -- several cases. There have been federal
17 cases, criminal, civil -- cases around the country -- about
18 five or ten different states in the past year.
19 Q. Okay. And does -- just out of curiosity, are you
20 expanding your work in the area of -- of helping and assisting
21 criminal defense clients?
22 A. I'm expanding my profession to include private work
23 outside of the City of New York.
24 Q. Okay. And when you do that private work, do you get
25 compensated to supplement your salary that you receive as a
1 medical examiner for the State of New York?
2 A. Yes. Usually, I do for myself, yes. Usually, not always.
3 Q. Okay. And you being compensated in this case?
4 A. I sure am.
5 Q. Who's paying the ticket?
6 A. I'm not sure. I believe Ed Mallett's office.
7 Q. Okay. Hare you received any payment up to this point?
8 A. I have not.
9 Q. Okay. Do you understand what the terms of your
10 compensation will be?
11 A. Basically.
12 Q. Okay. What is that?
13 A. We agreed to a thousand dollars for the initial review up
14 through today and then two thousand per day for my testimony
15 and other work that I do relating to my trip here in Arkansas.
16 Q. Okay. And were those figures put out on the front end?
17 Did you tell Mr. Mallett, now, I'll review this case for a
18 thousand dollars and then if I'm needed for testimony, it'll be
19 two thousand dollars a day?
20 A. Um, I sent a fee schedule, and we discussed possibilities
21 and he came back with an offer which was much less than what I
22 would have preferred, but in any event, I went with it.
23 Q. Okay. Now, in the autopsy that was performed by Doctor
24 Peretti, the protocol that he followed was that at first he did
25 a visual examination of the body -- of the external body and
1 took photographs.
2 A. Correct.
3 Q. And you viewed those photographs, correct?
4 A. I don't know if I viewed all of them. But a good number
5 of them, I did, yes.
6 Q. Okay. As a forensic pathologist in rendering opinions as
7 to injuries, type of injuries, causes of injuries, things of
8 that nature, is it better to view -- are you in a better
9 position to render opinions having seen some of the auto --
10 autopsy photographs than a person who actually viewed the body
11 in person?
12 A. It's preferable to be there and to do it yourself,
14 Q. Okay. And if you're relegated to actually viewing autopsy
15 photographs, surely you would want to see them all?
16 A. Well, I would -- I would like to see the appropriate ones,
18 Q. Okay. Well, in order to evaluate all the injuries that
19 may have occurred to the body, you would want to see all
20 photographs that were done to make your own opinion or
21 determination as to whether injuries existed on certain parts
22 of the anatomy, right?
23 A. I sure would, yes.
24 Q. And you haven't done that, have you?
25 A. I requested it along the way but I don't -- I can't say
1 for sure if I have received all of the photographs.
2 Q. Okay. In fact, most of the --- a lot of the photographs
3 you looked at were ones you thumbed through right before you
4 got on the stand this morning, correct?
5 A. That' s correct.
6 Q. Okay. And you -- your opinions that you rendered
7 regarding those photographs were based on that perusal this
9 A. No, based primarily on perusal of photographs that I
10 received a couple of months ago by Brent Turvey. He sent me a
11 computer disc with the photographs -- several hundred
13 Q. Okay. Well, the -- the protocol that was followed by
14 Doctor Peretti to view the body externally, to take photographs
15 of the body externally, you don't have any problems with that?
16 That's what you would do, right?
17 A. That's what I would do, yes.
18 Q. Okay. And you relied on the photographs he's taken in
19 rendering what opinions you've given, so I assume the
21 photographs were adequate?
22 A. I -- there were a lot of photographs, and I do not believe
22 the photographs were adequate to render opinions with respect
23 to certain marks on the body.
24 Q. Now, if I understood you correctly, your -- you would take
25 a photograph and you would swab -- you would have swabbed what
1 you thought might have been a bite mark, correct?
2 A. I would have considered swabbing the marking on the left
3 forehead of Steven Branch, yes.
4 Q. Okay. And that's because you say in your opinion that
5 when you looked at that, you thought it might be a bite mark?
6 A. I thought there was a chance it -- it may be a bite mark.
7 Again, I'm not a forensic dentist, and I don't want to portray
8 myself as one, but it looks like it could be, and it's better
9 to -- it's easier to explain why you did something than why you
11 Q. And you would agree though that -- and I assume you're
12 saying that Doctor Peretti made a mistake -- made an omission
13 when he didn't swab that area?
14 A. I -- it depends on how important that those markings are
15 in the case and, frankly, I'm not sure of the importance of
16 that -- those markings. It may be -- it may have been a
17 mistake. It may not have been. I'm not sure.
18 Q. Okay. And so a 10t of that would be based on whether --
19 how likely you thought that was a bite mark, right?
20 A. The decision by the pathologist to swab it?
21 Q. Right.
22 A. It has to do with the probability or at least the
23 recognition that it may be a bite mark.
24 Q. Okay. And if you're a forensic pathologist doing that
25 examination, I think you said that besides swabbing it, you
1 would also want to consult a forensic dentist?
2 A. If I went through the process of swabbing, I would consult
3 with a dentist, yes.
4 Q. Okay. But while you --- as long as you have the body there
5 and the mark's still there and the body is at your medical
6 examiner's office, you can perform the swabbing, correct?
7 A. Yes, I can.
8 Q. Okay. So if you're a forensic pathologist and you see a
9 mark --- in this instance on the body of the young Branch
10 individual -- your suggestion would be to consult a forensic
12 A. With this specific marking?
13 Q. Yes, sir.
14 A. I -- I wasn't there, and I didn't see it with my own eyes
15 in three dimension, but I think there's a likelihood I would
16 have swabbed it and consulted with a dentist. If I had
17 recognized it, and I hope I would.
18 Q. Okay. And, I guess, the -- even the more -- acting out of
19 an abundance of caution, if you've got a case where there could
20 be a bite mark -- even though you don't think there's one there
21 -- you'd consult a forensic dentist just to examine the body
22 just to help you make sure, right?
23 A. Not -- not in every case. We would have the dentist in
24 there full time every day. With every marking, no, I wouldn't
25 consult a dentist.
1 Q. Okay. But -- but certainly if you didn't see anything
2 that you thought might be a bite mark but you go ahead and
3 consult a forensic dentist to come in and examine and look over
4 the body, that's going above and beyond what you would even do,
6 A. Can you state that again?
7 Q. Okay. If you didn't view anything on the body -- if
8 you're performing this autopsy, you look over it,
9 hypothetically, there's nothing on there that causes you or
10 jumps out at you that says, this appears to be a bite mark, but
11 because it's an important case, because we want to find out and
12 try to determine who may have done this and if bite marks may
13 exist and somebody with more expertise might be able to
14 identify it, if you consult a forensic dentist under those
15 circumstances, that's going above and beyond what you would
16 normally do, right?
17 A. I think I'd rather answer the first question. If I
18 understand what you're saying, if I didn't recognize anything
19 as being suspicious for a bite mark, having swabbed it and
20 requested a dentist, that would be going over and above the
21 call of duty.
22 Q. Okay.
23 A. Yes, I agree with that.
24 Q. Okay. Do you know if a forensic dentist was consulted by
25 the medical examiner's office in this case?
1 A. I do not know the answer to that.
2 Q. Okay. Hypothetically, assuming a forensic dentist was
3 consulted and was brought in and was asked to view the bodies
4 of all three victims, then as a medical examiner, if that
5 forensic dentist says, I don't see any bite marks, would you
6 feel at that point compelled to swab certain wounds on this
8 A. It depends on how much confidence I have in the dentist,
9 and, you know I -- I have to place my confidence in -- in the
10 dentist when I use one and if a -- if a qualified forensic
11 odontologist says, there is nothing that looks like a bite --
12 bite mark, in general, I certainly would -- that would override
13 my opinion.
14 Q. Okay. And so if you're in the position of a pathologist
15 who has called in a forensic dentist, and the forensic dentist
16 looks and says, I don't see any bite marks here, then you don't
17 find fault with the pathologist not swabbing an area that the
18 forensic dentist couldn't identify as a bite mark?
19 A. There would be situations where I'd swab anyway if I was
20 not comfortable with the dentist's opinion.
21 Q. Okay. So you don't defer to the forensic odontologist on
22 those opinions?
23 A. Well, I defer on those opinions initially, and usually he
24 takes charge, and I value his opinion. But if I feel that he's
25 neglecting something, I could always ask for another dentist or
1 swab and think about it.
2 Q. Okay. And if you looked at the body and didn't think that
3 there were -- didn't see anything that you thought were bite
4 marks but wanted to be real sure you'd ask for another ME
5 to look at 'em to see if he saw anything that looks suspicious
6 to him, true?
7 A. I think that's a value to correspond with associates to
8 get their opinion. I probably would on this case.
9 Q. Okay. And the same photographs that you looked at, if
10 they were submitted to other medical examiners and they viewed
11 them and were asked, is there any other significant findings
12 you can draw from these photographs, would you expect them to
13 reference or to mention that there's possible bite marks?
14 A. Possibly.
15 Q. Okay. Now, let me refer you to sixty-four B -- I think
16 that'll be the second one on your stack there, maybe -- if we
17 did that right.
18 A. (EXAMINING.) Okay.
19 Q. Okay. And if I understand correctly, it's your opinion
20 that Doctor Peretti went too far out on a limb when he gave
21 suggestions as to how this injury could have occurred?
22 A. I think so. I think it's speculation, yes.
23 Q. Okay. And it's your testimony that -- do you or do you
24 not give testimony in court under oath in areas other than by a
25 reasonable degree of medical certainty? Do you also -- if
1 questions are posed to you, is this consistent with an injury
2 occurring in this fashion, do you--- do you respond and answer
3 those questions in court?
4 A. I certainly do. When the district attorney asks me
5 questions, is something consistent with something else, I have
6 to answer the question. However, I do make effort not to
7 mislead the Court in specifying specific objects and mechanisms
8 that could be misleading. And if I do answer, yes, this is
9 consistent with that, I will add an addendum by stating, many
10 other things could cause this. I don't know what it is.
11 Q. Okay. And in your review of the testimony, isn't it true
12 that upon cross examination, upon response to questions, that
13 his testimony wasn't by -- beyond a reasonable degree of
14 medical certainty, it is my opinion that it occurred this way.
15 He said it was consistent with a scenario such as that.
16 A. That's what he said in -- in many instances.
17 Q. Okay. And if I understood you correctly, that -- you
18 aren't saying that's wrong, you're just saying in your opinion
19 he went too far?
20 A. I think it's wrong. I think it's misleading and I -- I
21 l don't do it that way.
22 Q. Okay. You don't do it that way, but your testimony -- let
23 -- let me back up just a minute.
24 He --- he premised and said that that opinion was based in
25 --- on his experiences, correct?
1 A. On certain instances, yes.
2 Q. Okay. And that he is an -- and in his experience in
3 performing autopsies and doing his job, that these types of
4 injuries commonly occur from this type of -- of conduct,
6 A. He did state that on more than one occasion.
7 Q. Okay. And you've testified earlier under oath that when
8 you render opinions and testify as an expert, that part of that
9 testimony is based not only on your training but your
10 experience that you gather in the course of your career,
12 A. Yes, it can be.
13 Q. Okay. And isn't it true that your experience and those of
14 Doctor Peretti could be different?
15 A. They most certainly are.
16 Q. Okay. And so when he renders an opinion based on his
17 experience as a practicing forensic pathologist, he can render
18 that opinion based on his experiences and if they're different
19 than yours, they still would be valid opinions?
20 A. I -- it depends on what specifics you're talking about.
21 They may or may not be valid. And just because he has more
22 experience than me doesn't necessarily mean they're gonna be
22 more valid than my opinion.
24 Q. Okay. But if he has had experience with these type of
25 injuries caused in that manner and he testified to that, then
1 that wouldn't be an invalid testimony. It would just be
2 different from your experiences, correct?
3 A. It would be different.
4 Q. Okay. Now, would it be -- would you say that it would be
5 an appropriate interpretation of those injuries to say they
6 were caused by self-masturbation without the use of proper
8 A. Could you restate the question?
9 Q. If a criminal -- let me ask it another way.
10 If a person with no forensic pathology background -- not a
11 degree -- not a degree in forensic pathology, not an M.D., not
12 a medical examiner, a person that puts themself out to be a
13 criminalist and Bays that that injury -- as you see in that
14 picture sixty-four B -- was caused by masturbation without
15 proper -- self-masturbation without proper lubrication, do you
16 think that would be an opinion that's out on a limb?
17 A. I think it's out on a limb.
18 Q. Okay. And as a forensic pathologist, do you think
19 somebody who renders that opinion is doing it based on any
20 scientific basis or expertise?
21 A. I don't know.
22 Q. Okay. Okay. Now, let me refer you to -- I believe it's
23 sixty-two B and sixty-three B.
24 A. (EXAMINING.)
25 Q. If my notes are right, those should be pic -- photographs
1 of the side of Stevie Branch's head – okay.
2 Now, Mr. Mallett asked you to look specifically at the
3 ears and if I understood your testimony, you said that there
4 are marks there on the ears that are curvilinear?
5 A. Curvilinear.
6 Q. Okay, And that just means they're kind of half-moon
7 shaped or --
8 A. That's correct. That means they're not a straight line.
9 They're curved,
10 Q. Okay. And if curvilinear lines would be the same type of
11 impressions or marks you would expect to be left by a
12 fingerprint (sic) penetrating or pressing against the skin,
14 A. A fingerprint?
15 Q. A fingernail?
16 A. Fingernail. It could be.
17 Q. Okay. In other words; curvilinear lines would be
18 consistent with fingernail impressions?
19 A. They could be.
20 Q. Okay. And you said that you don't disagree that these
21 could be fingernail impressions on the ears; isn't that
23 A. That's correct. I'm not sure which of the injuries he was
24 referring to specifically. Some of them could be consistent
25 with fingernail markings.
1 Q. Okay. And so it's – what you're saying is that again
2 you thought that by suggesting that this was the method in
3 which those marks were inflicted on the ear, that that went too
5 A. I thought it went too far. He wasn't asked the question,
6 what could cause this. He just forwarded the information.
7 Q. Okay. And did he was subject to cross examination on that?
8 A. I believe so.
9 Q. Okay. And did he say within a reasonable decree of
10 radical certainty that, I think this is what occurred?
11 A. I don't he said that with certainty.
12 Q. Okay. He said it was a pos -- that this is one scenario,
13 this is how these injuries could have been inflicted?
14 A. That's what he said.
15 Q. Which anybody who heard that understands that you aren't
16 saying that's how it is. It's -- you're saying, that's how it
17 could have been, right?
18 MR. MALLETT: I object to the form of the
19 question. It's now testifying to anybody -- meaning
20 anybody in the world as being an overbroad phrasing
21 of the question.
22 THE COURT: Avoid being --
23 MR. DAVIS: I'll rephrase. I'll rephrase it.
24 THE COURT: Okay. Avoid generalizations.
25 BY MR. DAVIS:
1 Q. When somebody says that it – that these could be the
2 causes of this – this particular – fingernails could be the
3 cause of that injury, that doesn't exclude other causes, does
5 A. It doesn't necessarily.
6 Q. Okay. And so your gripe with him on that would be that by
7 phrasing it in such a way, he added emphasis to that when you
8 don't agree in your opinion that that should have been done?
9 A. That is absolutely correct.
10 Q. Okay. And, again, your opinion is based on your
11 experience in part as a forensic pathologist?
12 A. Experience and common sense, yes.
13 Q. Okay. And your experience is different from that of
14 Doctor Peretti's, I assume?
15 A. Experience definitely is.
16 Q. Okay. Now, let me ask you to flip over to sixty-six A --
17 the photograph.
18 A. (COMPLYING. )
19 Q. And that's the photograph, I believe, that shows the
20 bruising or contusions of the lips?
21 A. Yes, it is.
22 Q. Okay. And you indicated that you acknowledge there is
23 some bruising and contusion there?
24 A. It does look like there is, yes.
25 Q. Okay. And so as far as Doctor Peretti's finding or
1 testimony regarding the existence of that injury, you don't
2 dispute that?
3 Q. Okay. And as I understood it, you said -- and this is a
4 quote from you -- based on his experience that testimony was --
5 was absurd.
7 A. Could you restate the question?
8 Q. Okay. If I understood when Mr. Mallett asked you about
9 that testimony, based on your experience, you said that
10 testimony was absurd.
11 A. That this in consistent with or --
12 Q. Consistent with – with the marks to the ears and with
13 this type of injury, that it's consistent with forced oral sex.
14 A. I think it's absurd.
15 Q. Okay. Based on your experience, correct?
16 A. That's correct, and common sense.
17 Q. Okay. You also were asked, and is was pointed out to you,
18 that Doctor Peretti was grilled on that in cross examination,
20 A. I don't recall what extent he was --
21 Q. Okay.
22 A. -- on that one.
23 Q. Okay. In fact they asked him, is -- can you say within a
23 reasonable degree of medical certainty that this is what
25 happened? And he said, no.
1 A. He may have. That's correct.
2 Q. Okay. So as far as that is concerned, any insight or
3 advice that you can lend, that was dealt with, and he denied
4 that he could make an opinion of that nature on cross
5 examination in this case?
6 A. As he frequently did, but he also forwarded specific
7 cause/effect scenarios willy-nilly on many occasions.
8 Q. Now, you also mentioned that some of the injuries to the
9 side of the face of Stevie Branch could have been caused by
10 animals; is that right?
11 A. Based on what I've seen, it -- it's possible, yes.
12 Q. Okay. And I understand and I wrote down -- you were asked
13 that question and Mr. Mallett termed it -- used the phrase, can
14 you say within a reasonable degree of medical possibility if
15 that were true, and you said yes. Does that sound familiar?
16 A. That it was from post --
17 Q. That it was from animals. That there's animal bites on
18 this. Can you say it that definitively?
19 A. Uh, I don't recall. If I said it like that, I'd like to of certainty.
20 retract it. I -- I don't know if I could say with that degree
21 of certainty.
22 Q. Okay. And that's just within a reasonable degree of
23 medical responsibility, right?
24 A. I think so.
25 Q. Okay. So what standard would you say that the likelihood
1 that there's animal marks in this case are?
2 A. I -- without -- I really couldn't put a percentage on
3 it. I think it's less than a reasonable degree of medical
4 certainty perhaps. I'm not sure.
5 Q. Okay.
6 A. I'm really not sure.
7 Q. So you're just saying that if could be?
8 A. It certainly could be.
9 Q. Okay. Does certainly could be mean anything more than
10 could be? I mean, is that a higher standard or anything?
11 A. It's a little bit higher than could be.
12 Q. Okay. And you said that it could be caused -- when
13 they're submerged like that -- by fish?
14 A. Yes. If there are fish in the water, then that -- that
15 would qualify as marine activity.
16 Q. Okay. If there aren't fish in this wat -- in the -- in
17 the water that they were submerged in, would that also change
18 your opinion?
19 A. If there weren't fish or any aquatic life, that could
20 change my opinion.
21 Q. And, in fact, you said that -- if I understood -- you
22 would defer to an entomologist to make those kind of opinions,
23 and all you can say is that it's possible that those were
24 animal bite marks?
25 A. A forensic entomologist?
1 Q. Right.
2 A. Could you restate the question?
3 Q. Who would you refer to or defer to in terms of the
4 expertise in that area?
5 A. Post-mortem marine activity, I probably wouldn't defer to
6 anybody unless there was some question as to whether they could
7 be human site marks, and in which case I would go with a
8 forensic odontologist.
9 Q. Okay. So if I understand correctly, if you observed that
10 finding, the most you could do was maybe put in the report is
11 suspicion of post-mortem marine activity?
12 A. I wouldn't -- I generally don't include in my report any
13 comments regarding mechanisms. I simply document the findings
14 and photograph the evidence and issue the report. I generally
15 don't include comments regarding cause/effect relationships and
17 Q. Okay. So you wouldn't put it in a report that you
18 suspected marine activity, correct?
19 A. If I was sure of it, I may put the diagnoses list ---
20 Q. Okay.
21 A. -- just to alert the reader that I considered it.
22 Q. Okay. Let me specify as to this case. If you weren't
23 sure of it in this case, you wouldn't have put it in your
24 report, of you'd been -- based on the examination of these
25 photographs you've seen, right?
1 A. Yes. I would have described the defects in the body of my
2 autopsy reports, but I probably would not have committed to any
3 mechanism by which they may or may not have occurred.
4 Q. Okay. Well, Doctor Peretti described the defects in the
5 body of his autopsy report, didn't he?
6 A. He did describe them as gouge type cutting defects or
7 wounds. There were several different ways he described them.
8 Q. Okay. And with an overlaying arms of abrasion, I believe,
9 or --
10 A. Yes.
11 Q. Okay. And you said that that -- you agreed with the
12 overlaying area of abrasion?
13 A. I agree with the abrasion most likely based on what I've
14 seen on the photographs. But -- I'm not sure about the
15 gouging and cutting description that he employed in his text.
16 Q. Okay. And so you wouldn't have mentioned in your report
17 about marine activity. You would have described the injury,
18 and there's no one to defer to in terms of sending it on for
19 further examination?
20 A. I probably would not defer to anybody. I would simply
21 address the questions as I'm doing right now.
22 Q. Okay. And even if we took it -- even if you, had the
23 opinion that I am certain that these -- or within a reasonable
24 degree of medical certainty that there was marine activity
25 involved in some of these injuries -- that's what you could
1 testify to in court, right?
2 A. I felt that, you know, with that degree of certainty, I
3 would testify to that, yes.
4 Q. And how that might affect the outcome of the case you
5 don't know because you'd have to know the whole body of
6 evidence to speculate, right?
7 A. Everything is -- we're looking at pieces of a large amount
8 of information here.
9 Q. And you've seen the testimony -- and I can't remember if
10 you were asked to look at the testimony or the report -- but
11 some reference that Doctor Peretti made to these being --the
12 injuries to the left aide of the Branch face -- being
13 consistent with knife wounds?
14 A. I believe there was some mention that they were -- there
15 was a gouging or a cutting. I -- can't remember exactly how
16 he described them, but I believe gouging type or gouging and
17 cutting wounds, or something to that effect.
18 Q. Okay. And your -- your -- if I understand -- I just went
19 to be sure -- your -- your fault with now he described that was
20 that he referred to a knife when you said it would be difficult
21 to ascertain exactly what type of object?
22 A. I disagree with the wording gouging and also cutting.
23 Cutting implies using either s knife or an instrument similar
24 to a knife or something similar to a scalpel where you can
25 inflict an incision or an incised wound or a stab wound.
1 Cutting wounds encompass both stab wounds and incised wounds.
2 Gouging I'm not sure what that means. To me, gouging is when
3 you physically exert your energy and effort behind some
4 instrument to inflict a defect on something else. To me, it's
5 more of an act than a finding. I -- I've never used it to my
6 knowledge in -- in describing injuries or findings in my
7 autopsy reports.
8 Q. Well, you do agree that wounds differ in their pattern
9 based on, number one, the movement at the instrument that's
10 causing the wound and/or the movement of the person that is
11 having the young inflicted upon them, right?
12 A. Assuming they are ante-mortem injuries then, yes. It's a
13 very dynamic process, and the outcome depends on the relative
14 positioning and movement of -- of two or more parties, yes.
15 Q. Okay. And a number of times -- in -- in your job as a
16 forensic pathologist, one of the ways that you differentiate
17 between post-mortem and ante-mortem injuries is if there is no
18 appearance that the victim is moving, that the wounds are in a
19 nice straight pattern, that may Indicate that they were
20 inflicted either after unconsciousness or after death, correct?
21 A. That would be speculation. I -- I wouldn't be able to
23 Q. Okay. And if you have wounds that are irregular in shape
24 and are consistent with either an object being twisted or the
25 person moving while the object is implanted in their flesh,
1 then that would be consistent -- you don't have the clear
2 delineated type injuries, do you?
3 A. I'm sorry?
4 Q. You don't have well defined, easily identifiable cut marks
5 like you would see if the object is not moving or the victim is
6 not moving?
7 A. Well, I would expect, quote unquote, cut marks with, say,
8 a knife or something similar.
9 Q. And, in fact, your testimony yes that you couldn't rule
10 out some -- some of these injuries being inflicted with a
12 A. I couldn't. The -- the findings are atypical. Those
13 defects or marks on the face are nondescript based on the
14 photographs that I have looked at.
15 Q. Okay. And if I understood correctly, your testimony
16 would be you couldn't tell what caused those?
17 A. I could not tell.
18 Q. Okay. So your disagreement with Doctor Peretti is that
19 you think he went too far in speculating possibly about the use
20 of a knife causing these Injuries?
21 A. That's exactly correct.
22 Q. Okay. Not that the knife couldn't have caused these
23 injuries, but you think he rendered an opinion that went
24 further than you would have?
25 A. Well, the injuries don't look like ones that I would
1 expect to see with a knife, and the reason I can't exclude a
2 knife is that in the appearance in the post-mortem interval there may be changes
3 in appearance of the wound that would obscure the initial
4 appearance of it such as a post-mortem marine activity or
5 dragging on the bottom of a creek or the side of the creek.
6 Q. Okay. Well, a mud bottom creek wouldn't cause much
7 injury as far as the drag bottom -- drag injuries in a two
8 and a half foot deep mud bottom creek, would it?
9 A. If it's mud bottom, than I wouldn't expect the mud to
10 cause much injury.
11 Q. You're talking about if we've got rocky surfaces or
12 irregular surfaces under – on the bottom that might cause
13 specific injuries that you could correlate to that?
14 A. Or on the side of the body of water -- on the edge.
15 Q. And I wrote down -- and it's on the next page -- but that
16 in terms of your suspicion that the -- or your opinion that
17 some of the injuries to the side of Stevie Branch's face may
18 have been post-mortem. You said earlier that you had a degree
19 of suspicion, that they might be post-mortem injuries.
20 A. That's correct.
21 Q. Okay. And where did that degree of suspicion rank in
22 terms of these levels of certainty of opinions?
23 A. Well, it's less than a -- a -- a degree of medical
24 certainty. It's possible.
25 Q. Okay. And is that something you would put in your report
1 that you had a degree of suspicion that these were caused --
2 that these were post-mortem injuries?
3 Again, I don't address mechanisms in my report. I simply
4 state and document the findings and leave the mechanisms to the
6 Q. Okay. Now, you said that it is -- it would be preferable
7 to have a medical examiner on site when the bodies were removed
8 from the water, right?
9 A. It's preferable to have somebody qualified in any scene
10 investigation end especially homicides to have somebody there
11 to adequately document and photograph the scene.
12 Q. And assuming that that --that -- that what occurred in
13 this case, that the coroner is not somebody that is -- is
14 adequately qualified in your opinion? I'm just ---
15 hypothetically, let's assume that, and hypothetically, he
16 didn't arrive there in a timely fashion. What can be done
17 about that after the fact?
18 A. Could you restate the question again?
19 Q. How -- how can you change any impact that that may have
20 caused in terms of investigation? Is there anything that a
21 forensic pathologist, a criminalist, a defense attorney,
22 anybody can do to turn back the clock to change what may or may
23 not have occurred within hours after a crime scene's
25 A. Well, you can't turn anything back after the scene's been
1 manipulated. If bodies are moved, that's manipulating the
2 scene, and there's nothing that I can think of to turn that
4 Q. Now, you all -- in New York City, you all don't send out a
5 medical examiner to the crime scene, do you?
6 A. We do on certain cases, yes.
7 Q. Okay. And you normally send out somebody who is -- works
8 in your office and is trained, right?
9 A. They're trained medical legal investigators.
10 Q. Okay. And if the procedure in Arkansas is different,
11 maybe not as far advanced as it is in New York, that's true in
12 other states, too, isn't it?
13 A. I'm not sure. I haven't worked in any other jurisdictions
15 Q. Okay. Did you know whether the bodies were totally
16 submerged when they were found?
17 A. I did not, no.
18 Q. Okay. And would that make a difference as a forensic
19 pathologist to have that information available to you?
20 A. It sure could, yes.
21 Q. Okay. Because there could be -- if the bodies were part
22 in and part out of the water, it could affect how the body
23 decomposed or the rate of decomposition, things of that
24 nature, correct?
25 A. Things of that -- that's correct.
1 Q. Okay. Now, you also mentioned that -- preferably, I
2 believe you said -- that the clothes should be examined by the
3 forensic pathologist?
4 A. On homicide cases, yes.
5 Q. Okay. And you said because you'd like to see if there's
6 blood, trace evidence, things of that sort?
7 A. Any defects in the clothing. Whether there's any rips or
8 cuts, tears in the clothing, many different things. It's
9 preferable to have it. We don't always get it, but it is
10 preferable to have it.
11 Q. Okay. And in terms -- as -- as a forensic pathologist,
12 you don't do serology tests to determine if there are stains
13 that --- that are blood or stains that are semen yourself,
14 somebody else in your crime lab does that, don't they?
15 A. In our office we have a serology lab that does that, yes.
16 Q. Okay. In other words, if you get clothes and you suspect
17 or suspicion there are stains or there's items on there it that
18 you want further examination, you forward 'em on to that
19 section of your lab to do that?
20 A. That is correct.
21 Q. Okay. Do you see anything wrong with the clothes going to
22 trace evidence for serology trace evidence testing and things
23 of that nature initially?
24 A. I don't necessarily, no.
25 Q. Okay. So in terms of the pathologist not examining
1 clothes first, you don't have a problem with that protocol in
2 terms of getting those items to the proper trace evidence
3 serology section so they could do their examination?
4 A. That's okay, but the pathologist should have some idea
5 when he testifies in court as to the nature and any information
6 regarding clothing that may be beneficial.
7 Q. Okay. And you don't know if he had that in this case or
9 A. I don't know if he had that.
10 Q. Okay.
11 A. I didn't see anything in the testimony that would lead me
12 to believe that he had it.
13 Q. Now, but -- but you wouldn't expect a pathologist
14 necessarily to examine for stains if you had other experts in
15 your crime laboratory that could do the same thing?
16 A. The forensic pathologist doesn't do it himself so it has
17 to be moved on to somebody else.
18 Q. Okay. And if that were done in this case, then that would
19 be an appropriate procedure?
20 A. I think it would be.
21 Q. Now, you indicated that there was a notation in the
22 autopsy report -- and it may have just been in reference to one
23 -- I don't think it was all three -- but one or more in the
24 autopsy reports reflected that there was larvae observed, I
25 believe, in the -- in the eye cavity?
1 A. The eye.
2 Q. Okay. And you indicated that as a forensic pathologist,
3 that that could have been removed and tested, correct?
4 A. No, I didn't say that. I-- it should only be documented
5 and perhaps photographed.
6 Q. Okay. And in this case, it was documented because it was
7 in the report?
8 A. Yes.
9 Q. Right?
10 A. That's correct.
11 Q. Okay. And so you said documented and perhaps
12 photographed, so Doctor Peretti did what you would have done.
14 A. He did. The only element that I question is whether they
15 were fly larvae or fly eggs. The larvae are actually maggots
16 -- moving maggots -- and eggs are small, very tiny little eggs
17 that appear similar to grated cheese -- finely grated cheese --
18 and he didn't describe that. He did describe it on one eye of
19 one of the victims -- I believe, Michael Moore. But I
20 questioned whether defining it was indeed larvae or whether
21 they were maggot -- eggs -- fly eggs.
22 Q. Okay. And the significance of that finding?
23 A. Well, the significance -- I would expect eggs -- if there
24 are maggots, I would expect eggs also. So he described the
25 finding of larvae but not the finding of eggs which I would
1 question. And that may help with time of death issues.
2 Q. Okay. Now, you indicated that you were aware that the
3 bodies after they were removed from the water remained on the
4 ditch bank for a period of time.
5 A. Yes, they were.
6 Q. Okay. And in that period of time, if they were exposed to
7 fly and insect activity, then, obviously, fly eggs and larvae
8 could have been deposited during that period, correct?
9 A. Not larvae.
10 Q. Okay.
11 A. Fly eggs could have been.
12 Q. Which then turn into larvae?
13 A. Yeah, but it takes hours for that.
14 Q. Okay. And do you know the time interval between the time
15 the bodies were on the ditch and the time that the examinations
16 occurred at the crime lab?
17 A. The autopsies?
18 Q. Right.
19 A. I believe the autopsy examinations were done the following
21 Q. Okay. So hours elapsed between those two time periods,
23 A. But only two and a half hours from the time the bodies
24 were moved from the water to the -- the bank until the time the
25 coroner arrived. I'm not sure when the bodies were actually
1 put into bags.
2 Q. Okay. So that's the time interval in which fly larv --
3 fly eggs could have been deposited right?
4 A. While the bodies are sitting on the -- lying on the creek
5 bank, yes.
6 Q. Okay. And with that fact in mind, it would make the
7 significance of that finding even less, correct?
8 A. It could.
9 Q. Okay. And you indicated that from your review of the
10 autopsies that -- I can't read my own notes -- let's see --
11 that there was some evidence of drowning, right?
12 A. I didn't say that.
13 Q. Okay. Tell me -- tell me what your opinion is regarding
14 the drowning issue.
15 A. Well, drowning was described as part of the cause of death
16 on two of the three victims. And I -- I wasn't there so,
17 again, it's not -- I'm adding this disclaimer -- my
18 interpretation may not be as -- as good as the performing
19 pathologist, but I do have questions regarding making that
20 call. That is, multiple injuries with drowning on two of two of the
22 Q. Okay. Now, what are the things that you look for in
23 ascertaining whether drowning has occurred?
24 A. Well, again, as I mentioned earlier, drowning is a
25 diagnosis of exclusion. So the findings or the features of
1 drowning are nonspecific. They include small petechial
2 hemorrhages on the heart, the lungs. They include wet and
3 edematous lungs. They could include frothy edema liquid in the
4 airways, and there are other features, but certainly not
5 washer-woman wrinkling of the hands which occurs with
6 submersion only -- or drowning -- but submersion in water.
7 Q. Okay. And is there evidence in the report that the
8 washer-woman wrinkling of the bands was used as a basis for
9 determining that they drowned?
10 A. It was alluded to on one or more questions and answers.
11 There was reference to washer-woman wrinkling with respect to
12 evidence of drowning.
13 Q. Now, all these things you've mentioned in terms of the --
14 the things -- the items you look for to try to ascertain if a
15 person drowned or not, all of those things are based on an
16 internal examination, correct?
17 A. Most of it is internal examination.
18 Q. Okay. Have you viewed any photographs of the internal
19 examination on these boys?
20 A. No, I have not.
21 Q. Okay. And wouldn't you agree that the person who actually
23 A. Actually, there were a few, but nothing pertaining to the
24 concept of drowning.
25 Q. Okay. So in terms of being in a position to evaluate
1 whether these cases involved drowning or not, the person who
2 performed that internal examination would be in the best
3 position to make that determination?
4 A. That's partially correct. However, as I mentioned,
5 drowning is a diagnosis of exclusion. It relies primarily on
6 either witness accounts or other historic information that
7 would point to drowning as well as excluding other causes of
8 death such as blunt impact trauma.
9 Q. Well, you could receive -- blunt impact trauma, I could
10 receive severe head injuries, not be dead yet, be thrown into
11 the water and drown from -- even though I sustained injuries
12 that could ultimately have caused my death anyway, correct?
13 A. That is correct.
14 Q. Okay. And so you could sustain massive head injuries, be
15 thrown into the water and drown, correct?
16 A. It is possible, yes.
17 Q. Okay. And so I guess the bottom line question is: Doctor
18 Peretti who opened up and did the internal examination of
19 these boys, saw and had a chance to look at all these signs of
20 what could or could not lead to drowning, and you haven't even
21 seen any internal photographs, correct?
22 A. Non --- nonspecific findings.
23 Q. Okay. And you --
24 A. I simply questioned the concept that two of three -- two
25 of the three victims died from drowning when they have ample
1 evidence for another modality for their death; namely, blunt
2 impact trauma to the head.
3 Q. Okay. So to pin this down, you're saying that because of
4 the extent of the head injuries they suffered, you question
5 whether they drowned because those head injuries should have
6 been sufficient to have caused death in and of themselves?
7 A. They would have been, yes, and I questioned the
8 explanation for attaching drowning to the injuries because it
9 implies that the death occurred in water and not elsewhere. It
10 may be misleading. I simply question that area, and I don't
11 know the answer.
12 Q. And what things would you need to better formulate an
13 answer, or do they exist at this point?
14 A. I'm not sure they do.
15 Q. Okay.
16 A. It -- it may be an over-interpretation of the findings.
17 I'm not sure. I simply question it.
18 Q. Okay. But you would agree that in order to make a call on
20 whether someone drowned, the best -- the best evidence to make
21 that decision on would be an internal examination of that
22 person during the time of the autopsy, right?
23 A. Yes, it's better to he there than to be an outside
23 observer. Definitely it's better.
24 Q. Okay. And the next best thing, I guess, would be able to
25 view photographs of that internal examination so that you could
1 form an independent opinion, correct?
2 A. Well, that would be good, also, but I've read the
3 description of the internal examination, and I have no reason
4 to dispute that what Doctor Peretti described in his report is
5 not what he saw. I have no reason to dispute that.
6 Q. And as a forensic pathologist that might have been asked
7 to consult in this case, you could -- your -- what you could
8 here told a defense attorney is, I might question that
9 particular call?
10 A. I -- I do simply question it.
11 Q. Okay. Do you know if they had received that information
12 from another forensic pathologist -- if they might question
13 that call?
14 A. I have no idea.
15 MR. DAVIS: One second, your Honor.
16 THE COURT: All right.
17 MR. DAVIS: Pass the witness, your Honor.
18 THE COURT: We're gonna take our noon recess.
19 One -- 1:00 o'clock. Court will be in recess until
20 1:00 o'clock.
22 (RETURN TO OPEN COURT)
23 THE COURT: All right, are you ready?
24 MR. MALLETT: One second, your Honor.
25 REDIRECT EXAMINATION
1 BY MR. MALLETT:
2 Q. Well, Doctor Cohen did you enjoy lunch?
3 A. I sure did. I enjoyed my peanut butter cookies and
4 Doritos. (LAUGHTER)
5 Q. And during the time that you were hawing your peanut
6 butter cookies and Doritos and I was having an equally healthy
7 meal, we had a brief conversation about your testimony this
8 morning, did we not?
9 A. That was fat free, wasn't it? (LAUGHTER.)
10 Q. The first point I want to touch on, in his questioning,
11 Mr. David -- Davis went to the subject of the insect larvae as
12 reported in the autopsy and your testimony that it should have
13 been documented and photographed, do you recall that?
14 A. That's correct.
15 Q. For what reason would it be photo – documented and
17 A. Well, it's a way to document the evidence and be able to
18 look at it at a later date perhaps months or years later to see
19 what exactly it was.
20 Q. In the materials that you've been provided, have you seen
21 that kind of photography showing visually what was described in
22 words in the autopsy report?
23 A. No, I did not.
24 Q. There was a question, and I thought a good question, that
25 Judge Burnett raised about consideration of aquatic creatures
1 in this creek. Do you understand that this creek was generally
2 a run-off area where water running off of the more elevated
3 ground would go down and then flow -- presumably in the
4 direction of the Mississippi River -- ultimately down the road
6 A. Yes.
7 Q. You understood that it was in a wooded area?
8 A. Yes.
9 Q. And in a wooded area when you have a relatively shallow
10 creek based on run-off, in your experience, is it common or
11 uncommon to have ambient wildlife like turtles, crayfish,
12 raccoons -- I think we heard about raccoons yesterday when you
13 were in the courtroom -- is that a common or uncommon
15 MR. DAVIS: Your Honor, is this something that
16 he's testifying in an area of expertise as forensic
17 pathologist, or is this just a question about his --
18 THE COURT: Well, I think in New York City
19 they'd have a lot of experience in coons and possums.
20 (LAUGHTER) I -- I don't know. You're gonna have to
21 qualify him if that's, an area within his general
23 BY MR. MALLETT:
24 Q. Is it within your general knowledge that which is
25 not aquatic feeds, drinks at free standing waters?
1 A. That is possible.
2 Q. Mr. Davis has set to you the prop -- the proposition that
3 it was possible -- I think he was doing it in terms of
4 hypotheticals -- that there might be a dentist at a laboratory
5 who could -- in a hypothetical laboratory in a hypothetical
6 situation -- assist a pathologist by looking at the subject of
7 the autopsy. And he was asking you -- and I believe he asked
8 you whether those -- that situation would be necessary to do
9 swabbing of a suspected bite mark. Do you recall that area of
11 A. Yes, briefly.
12 Q. Now, when you see something that raises in your mind the
13 possibility it could be a human bite mark, what's the first
14 step -- to have the swabbing done or to see if there's a
15 dentist in the neighborhood?
16 A. I would do the swabbing first, photograph the marks, and
17 then consult with an odontologist.
18 Q. Well, why would you do it in that order?
19 A. I would like to collect the evidence as quickly as
20 possible to prevent the possibility that it may be lost.
21 Q. Now, you understand that when you write an autopsy report,
22 you're not writing for your personal library of autopsy
23 reports, are you?
24 A. No.
25 Q. You know that your autopsy report might be of use to the
1 district attorney?
2 A. That's correct.
3 Q. It might be of use to homicide, investigators in
4 determining the direction of an investigation?
5 A. Yes.
6 Q. In the State of New York it might be considered by
7 person sitting on a grand jury?
8 A. Correct.
9 Q. A report might be used to refresh your memory to assist
10 you in testifying in a subsequent trial?
11 A. That's right.
12 Q. Now, I presume that if in the City of New York after an
13 autopsy is completed the doctor becomes incapacitated in some
14 way, there is a provision by which some other doctor can
15 testify from an autopsy prepared by the primary physician?
16 A. Correct.
17 Q. So the autopsy report provides for continuity?
18 A. Yes, it does.
19 Q. Otherwise, in the case of a pathologist becoming
20 incapacitated or becoming ill, retiring, not being available
21 for medical reasons, there would be no way to prosecute the
23 A. Correct.
24 Q. So what is important about an autopsy report is that it
25 include within it all the important observations of the person
1 conducting the autopsy?
2 A. Correct.
3 Q. And in the autopsy report you read in this case, you
4 saw no indication of Doctor Peretti utilizing a dentist, a
5 forensic -- or a forensic odontologist, or taking any swabbing
6 of the suspected bite marks?
7 A. I did not see that, no.
8 Q. And finally, Mr. Davis told you that some cases -- or
9 indicated and I think you agreed -- that some cases are sort of
10 run-of-the-mill and that is, they have a fact pattern that
11 seems to repeat itself often in criminal investigations, right?
12 A. Sure.
13 Q. And other cases are sort of unusual. They stand out
14 because of the atypical facts and characteristics?
15 A. Correct.
16 Q. So a case, for example, in which investigators relying
17 substantially on circumstantial evidence involving a triple
18 murder, involving sexual offenses, involving accusations
19 against teenagers, involving a state's theory that it had
20 something or other to do with a cult -- whatever that is -- or
21 satanic worship -- whatever that is -- as activity. That would
22 stand out as kind of an unusual case, would it not?
23 A. It would, yes.
24 Q. And that would be a case in which, at least in your
25 office, all available resources would be utilized in an effort 1188
1 to arrive at an understanding of the truth of what really
3 A. I would expect so, yes.
4 MR. MALLETT: Thank you very much.
5 RECROSS EXAMINATION
6 BY MR. DAVIS:
7 Q. Just a few questions. Back to the -- the injury to the
8 left side of the forehead of the Branch young man, if I
9 understand correctly, the -- if -- if you observe as a forensic
10 pathologist an injury that you believe could possibly be a bite
11 mark -- and I think that's what you said here -- is that after
12 observation of this photo, you thought it possibly could be?
13 A. Possibly, yes.
14 Q. Okay. And your next step -- your -- your next step you
15 said would have been to swab the area?
16 A. I would in the course of my performance of the autopsy, I
17 would swab it, yes.
18 Q. Okay. If you had access to a forensic dentist who could
19 arrive in a short period of time to examine all the bodies of
20 the victims, whether or not you saw anything that you thought
21 to be a bite mark but that was available, would it be improper
22 to allow that examination to be done before any swabbing took
24 A. That would be acceptable.
25 Q. Okay. And, in fact, if you saw nothing that you suspected
1 be a bite mark, then until a forensic dentist had arrived
2 and either concluded there was or wasn't something of that
3 nature, there would be no need to do a swab, would there?
4 A. That correct
5 Q. Okay. And so if that is the scenario that played out in
6 this case, you would find no fault with what Doctor Peretti
7 did in following those procedures other than that you disagree
8 in your opinion as to whether this appeared to be a bite mark?
9 A. Pretty much, yes.
10 MR. DAVIS: No further questions.
11 THE COURT: Doctor Cohen, in the course of doing
12 an autopsy: do you take notes independent of your
13 dictation of the autopsy protocol?
14 THE WITNESS: Yes, of course, your Honor.
15 THE COURT: And those notes, of course, wouldn't
16 be included in the protocol?
17 THE WITNESS: They may or may not be.
18 THE COURT: All right.
19 Anything else?
20 MR. MALLETT: Nothing further, your Honor.
21 MR. DAVIS: No, sir.
22 THE COURT: All right, you're free to go.
23 THE WITNESS: Thanks, your Honor.
24 MR. MALLETT: If I may have a minute.
25 Call John Hutson, if I may.
1 JOHN HUTSON
2 having been first duly sworn to speak the truth, the whole
3 truth, and nothing but the truth, then testified as follows:
4 DIRECT EXAMINATION
5 BY MR. MALLETT:
6 Q. Please introduce yourself to Judge Burnett.
7 A. It's John Robert Hutson and it's H-U-T-S-O-N.
8 Q. How are you employed, Mr. Hutson?
9 A. I'm self-employed. I'm a clinical psychologist.
10 Q. Where do you live?
11 A. I live in Cordova, Tennessee. It's a suburb of Memphis.
12 Q. Does -- as a clinical psychologist, do you have some sort
13 of a license?
14 A. I'm licensed in Tennessee and have been since 1975 and in
15 Arkansas since 1980.
16 Q. What briefly is your educational background?
17 A. I have a Bachelor of Science degree from Ohio State
18 University that I received in 1968. I have a Doctor of
19 Philosophy degree in clinical psychology that I received from
20 the University of Tennessee in 1975. I've been, as I
21 indicated, licensed in Tennessee since 1975. I was hired by
22 the Medical School in Tennessee in Memphis in 1976 to do court
23 evaluation work and after having done that in the Knoxville
24 area since 1974.
25 Q. Do you have experience working on behalf of defendants or
1 defense counsel in cases where the prosecution --in Arkansas,
2 Tennessee, or other states -- is seeking the death penalty?
3 A. Yes, sir, in all three (sic) of those states.
4 Q. Is the concept of --
5 A. And -- and in Missouri, also.
6 Q. Is the concept of mitigation something which you've been
7 invited to work on or direct your skills, training and
8 experience on in assistance of defendants and defense counsel
9 in capital litigation?
10 A. Generally, there are three issues in capital that we --
11 usually I am approached to look at, and that is competency to
12 stand trial, mental state at the time of the offense, and
13 mitigation issues.
14 Q. All right. Let me show you what's marked for
15 identification as Petitioner's Exhibit Sixty-three and ask you
18 to tell Judge Burnett what it is. (HANDING TO WITNESS. )
17 A. (EXAMINING.) It's my vitae and it's an up-to-date copy.
18 MR. MALLETT: Move the admission of sixty-
19 three, your Honor.
20 MR. DAVIS: May I see that?
21 (MR. MALLETT HANDING TO MR. DAVIS.)
22 THE COURT: Did you say your practice is in
24 THE WITNESS: I live in Cordova. I have -- my
25 office is in Bartlett.
1 THE COURT: Are you with a group?
2 THE WITNESS: Yes, sir, I am. We're all
3 independent within the group but we have an
4 association. It's Hutson, Nichols, Martin and
6 THE COURT: Do you know Doctor Jane Clement?
7 THE WITNESS: She's in the office, yes, sir.
8 THE COURT: I thought she was. That's my
10 THE WITNESS: Oh.
11 MR. MALLETT: Proudly move the admission of
12 Exhibit Sixty-three. (LAUGHTER.)
13 (PETITIONER'S EXHIBIT NUMBER SIXTY-THREE IS
14 RECEIVED IN EVIDENCE. )
15 THE COURT: I think we've met before.
16 THE WITNESS: We may have. She has mentioned
17 you before, I know that. However, nobody told me
18 today who I was gonna appear in front of.
19 THE COURT: Well, I didn't have any idea you
20 were coming either, so we're equal.
21 BY MR. MALLETT:
22 Q. Doctor Hutson, do you know Damien Echols?
23 A. No, sir, I don't.
24 Q. That's the young man sitting here in the gray shirt with
25 the black hair. Let the record reflect that you're looking at
1 Mr. Echols as I'm standing behind him?
2 A. Yes, sir.
3 Q. You don't know him, do you?
4 A. No, sir, I don't. Never seen him before in my life.
5 Q. Have you ever performed any testing on him?
6 A. No, sir.
7 Q. Ever evaluated him?
8 A. No, sir.
9 Q. When did you first become involved in this case?
10 A. My recollection is in August or early September of -- I
11 believe it was -- 1993. It was the year prior to trial. I was
12 approached by a Ms. Glori Shettles of Inquisitor, Incorporated,
13 a private investigation firm, about doing an evaluation of Mr.
14 Echols. She indicated that I may be looking at the issues of
15 competency, sanity, and mitigation.
16 Q. All right. Did you enter into any written agreement of
17 understanding with Ms. Shettles or with anyone on behalf of Mr.
19 A. Written -- not that I recall. Sometimes attorneys ask for
20 a fee schedule to submit to the Court when they ask for
21 funding. I don't recall doing that in this case.
22 Q. Did you ever accept a retainer of any kind?
23 A. No, sir.
24 Q. Were you ever provided a quantity of materials that you
25 understood to be about Damien Echols?
1 A. Yes, sir. Ms. Shettles provided me with about three
2 volumes -- extensive volumes -- I would say they reached
3 several inches thick -- sometime during that fall. My
4 recollection of those volumes included educational notes,
5 hospital treatment records, writings and drawings of the
6 defendant and, I think, some notes that she herself had made.
7 Q. Did you put in any substantial amount of time in looking
8 at those materials?
9 A. No, sir, I did not.
10 Q. For what reason?
11 A. I told Ms. Shettles that I wasn't used to and would not
12 work on a case until I had gotten approval from the attorneys,
13 and I hadn't talked to attorneys at that point.
14 Q. And we're talking now about the fall of 1993, the fall of
15 the year preceding the trial?
16 A. I may be wrong about the year. If the trial was in 1994,
17 it was the fall of 1993.
18 Q. All right. And as 1993 went on, did you speak to Ms.
19 Shettles on one or more than one occasion, as best you now
21 A. I talked to Ms. Shettles every four to six weeks from the
22 time she first talked to me about this case, which as I said,
23 was late August or early September of that year about whether
24 I should go ahead and do -- was I gonna do any work on the case
25 or what was the status of the case.
1 Q. Now, if you were gonna go ahead and do some work on the
2 case, what did you contemplate that would consist of?
3 A. Well, I've done this kind of work for some time, and it
4 would consist of me beginning to read all those records, set up
5 appointment times to see the defendant. I usually like to talk
6 to the defendant's family, or I like to talk to the prosecution
7 to get the facts in the case. I like to corroborate what the
8 defendant tells me after the first interview or so. I usually
9 do some psychological testing of the defendant.
10 Q. Going through to the end of 1993, did you do any of that
11 work that you've described?
12 A. I did nothing.
13 Q. Were you paid any money?
14 A. No, sir.
15 Q. Did the lawyers ever contact you?
16 A. No, sir.
17 Q. Did a time ever come when you entered into a written
18 agreement whereby you would help Damien Echols?
19 A. No, sir.
20 Q. Well, I mean, did a time ever come when you were asked
21 affirmatively to step forward and, as you say, given the go-
23 A. Yes, sir. My recollection is I could not recall if Ms.
24 Shettles or the attorneys had talked to me. They talked --
25 someone talked to me in very late January of the next year --
1 1994 -- about, we have a trial date. The trial date is -- was
2 approximately thirty days from that date -- or twenty-eight
3 days from that date -- to go ahead and get started.
4 Q. What was your response to that request, or -- or that
5 direction --however you took it?
6 A. My response was, that my schedule was already booked two
7 to three weeks in advance. There isn't sufficient time to do
8 comprehensive evaluation as you discussed earlier. And I could
9 not do it. I could not provide what I thought were good
11 Q. In restating your answer, do you mean you refused to take
12 the case at that time?
13 A. I refused to take their case at that time because there
14 was insufficient time for me do what I consider a good job.
15 Q. And that was the first time you were directed or
16 authorized to go ahead and begin working with the promise that
17 you would be compensated for your work?
18 A. That's correct. If I may add something that I learned
20 Q. Sir.
21 A. I learned from the Inquisitor records that, in fact,
22 attorneys never talked to me. Ms. Shettles had called me on
23 that date. So I'm sure part of my response was, I told you
24 before that unless the attorneys work with me, I would not
25 handle the case.
1 Q. What is the reason you wouldn't handle the case without
2 the attorneys working with you?
3 A. Well, I've done all kinds of Court work for twenty-some
4 years, and a case is an attorney's case. It's his
5 responsibility or her responsibility. I've been approached by
6 family members and by defendants and things of this nature in
7 the past, and I've learned that they don't speak to hiring me
8 in the case. The attorney controls the case, and I won't get
9 involved in a case unless the attorney says, I want you, and if
10 the other parties agree, that's fine. But I don't work without
11 the attorney saying yes.
12 Q. In your recollection, did you make Ms. Shettles aware that
13 you wanted cooperation and communication with the attorneys?
14 A. Oh, yes, consistently from the first time she approached
15 me. She --- she -- I have known her since before she worked for
16 Inquisitor. We never worked in cases like that before at that
17 point, as I recall. But during the time that we did talk every
18 four to six weeks, I reaffirmed that I needed to talk to the
19 attorneys. I need to know what we're gonna do here.
20 Q. Did you ever talk to any attorney on behalf of Damien
21 Echols before you announced that you wouldn't take this case?
22 A. No, sir.
23 MR. MALLETT: Thank you very much.
24 CROSS EXAMINATION
25 BY MR. DAVIS:
1 Q. Mr. Hutson, just a few questions so I -- I just want to
2 clarify things.
3 You were sent some materials in August or September
4 regarding this defendant?
5 A. No. Ms. Shettles contacted me then. I don't believe she
6 provided me the materials until sometime later in that fall.
7 It could have been October or November. It was well before
8 Christmas. I do recall that.
9 Q. It could have been as late as November?
10 A. It could have been, yes, sir.
11 Q. And you don't have any notes or records as to when those
12 materials were provided?
13 A. I don't usually log stuff like that, no, sir. I remember
14 them sitting in my office -- 'cause they're quite substantial
15 -- for some time.
16 Q. Okay. And you were -- she consulted you about possibly
17 getting involved in this case?
18 A. I would say more than possibly. She approached me about
19 being involved in this case.
20 Q. Okay. But you were never retained?
21 A. That's correct.
22 Q. Okay. You never did an evaluation?
23 A. That's correct.
24 Q. Never testified?
25 A. That's correct.
1 Q. Okay. And you indicated that when you were contacted in
2 January of 1994, at that point you said that your schedule was
3 such that you could not be prepared in order to present
5 A. I remember being contacted approximately twenty-eight days
6 -- give or take two days -- before the trial date, which, I
7 believe, was in February.
8 Q. Okay. Did you --- did you document that?
9 A. No, sir, I didn't.
10 Q. Okay. How do you recall it was twenty-eight days before
11 the trial date?
12 A. 'Cause I remember when I was called that I had a month or
13 less to do the work.
14 Q. Okay.
15 A. And that was insufficient for me to do it because I had
16 been warned when the trial date was gonna be. I maintained my
17 schedule and had not set aside time 'cause I had not gotten any
18 advance warning.
19 Q. Okay. When you say you maintained your schedule, you had
20 clients to see, other cases to work on, other evaluations to
22 A. Exactly.
23 Q. And you couldn't set aside your time to devote during that
24 time period to this particular case?
25 A. Not in that short of notice, that's correct -- not to be
1 prepared for a trial date that was within thirty days.
2 Q. Okay. And so you made your decision at that point not to
3 go forward and not to assist in terms of providing any further
4 exam -- any examination or any testimony regarding this matter?
5 A. That's correct. Let me add -- I don't -- other than in a
6 conflict of interest, I don't recall ever having turned down a
7 case or -- and I don't ever recall having been involved in a
8 case where I did not talk to the attorney. I remember I was
9 really upset about that.
10 Q. Okay. And as far as -- are there other people that
11 practice in your field that also provide the same type of
12 services that you do?
13 A. I'm sure there are. I don't know everybody in my field.
14 Q. Okay. And are you familiar or not with whether a person
15 -- another psychologist -- provided testimony in regard to that
16 -- that area of testimony regarding mitigation at the trial?
17 A. I found out about ten days ago that another psychologist
19 Q. Okay. So they retained somebody else?
20 A. That's what I found out, yes, sir.
21 MR. DAVIS: No further questions.
22 MR. MALLETT: That's all we have of this
23 witness, your Honor.
24 THE COURT: Yes, sir, you're free to go.
25 THE WITNESS: Thank you, sir.
1 MR. MALLETT: May we approach the bench, your
3 THE COURT: All right.
4 THE WITNESS: Am I -- may I be excused?
5 THE COURT: Yes, sir, you're free to go.
6 (THE FOLLOWING DISCUSSION WAS HELD AT THE
8 MR. MALLETT: I want the record to reflect that
9 we are unable to furnish the Court today with Doctor
10 Neil Haskell who is an entomologist and who I spoke
11 to yesterday evening. He was unable to travel here
12 from Indiana today, but he's not under an interstate
13 Subpoena. I have not taken those steps and at this
14 time I can't produce him. Friday was the day that I
15 was gonna try to persuade the prosecution --
16 THE COURT: We're coming back on the twenty-
17 eighth and twenty-ninth. I don't have any problem
18 with you -- unless the state's gonna object for some
19 reason -- doing it then.
20 MR. MALLETT: That's fine.
21 THE COURT: So you're ready to rest short of
23 MR. MALLETT: And I would rest shortly.
24 (RETURN TO OPEN COURT.)
25 THE COURT: All right, for the record, the
1 defense is resting at this point?
2 MR. MALLETT: Yes, your Honor.
3 THE COURT: All right, call your first witness.
4 MR. DAVIS: Your Honor --
5 THE COURT: You do have -- I am allowing you to
6 reserve the right to call Doctor --
7 MR. MALLETT: Neil Haiskell.
8 THE COURT: Hassel?
9 MR. MALLETT: H-A-I-S-K-E-L-L, I think.
10 THE COURT: Haiskell? Okay.
11 MR. MALLETT: H-A-S-K-E-L-L.
12 THE COURT: Haskell.
13 MR. DAVIS: Call Detective Bryn Ridge.
14 THE COURT: All right.
15 BRYN RIDGE
16 having been first duty sworn to speak the truth, the whole
17 truth, and nothing but the truth, then testified as follows:
18 DIRECT EXAMINATION
19 BY MR. DAVIS:
20 Q. Would you state your name, please, sir?
21 A. Bryn Ridge.
22 Q. And, Mr. Ridge, you're -- you're employed with the West
23 Memphis Police Department?
24 A. Yes, sir.
25 Q. Okay. And at the time back when the triple homicides
1 occurred back in -- I believe, it was May of 1990 -- ninety-
2 three -- you were a detective with the West Memphis Police
3 Department; is that correct?
4 A. Yes, sir.
5 Q. And did you work and were you involved in the
6 investigation surrounding that particular crime?
7 A. Yes, sir.
8 Q. Okay. Now, I asked you to review prior to taking the
9 stand what has been introduced as Petitioner's Exhibit number
10 Nine, which is a three page document that bears your signature
11 at the bottom. Have you had a chance to review that? (HANDING
12 TO WITNESS.)
13 A. (EXAMINING.) Yes, sir, I have.
14 Q. Okay. And what -- can you describe for us what
15 Petitioner's Number Nine is -- what that exhibit contains?
16 A. It's responses to questions that were asked by Doctor
17 Griffis in reference to this case as to whether or not there
18 was reason to believe it may have been satanic in nature.
19 Q. Okay. And can you explain for the Court how it was that
20 letter came to be written? What transpired that caused you to
21 send that letter to Doctor Griffis?
22 A. He sent a list of questions he would like to have answered
23 in reference to this case for him to formulate an opinion.
24 Q. Okay. And at some point during the investigation, had you
25 contacted Doctor Griffis in order to assist or hopefully
1 provide information that might assist in this investigation?
2 A. Yes, sir.
3 Q. Okay. And after that contact, did he send you a list of
4 questions and things he needed information about?
5 A. Yes, sir.
6 Q. Okay. Now, in this letter, what is marked as Petitioner's
7 Exhibit Number Nine, is the letter that you supplied to him
8 containing information responding to his questions?
9 A. That's correct.
10 Q. Okay. On the last page of that there is a paragraph -- I
11 believe it's like maybe one from the bottom that has a -- a
12 mark or parentheses around it. Do you see that paragraph?
13 A. (EXAMINING.) Yes, sir.
14 Q. Could you read that paragraph for us?
15 A. "Sir, it is also of interest to us if you have any
16 information as to whether the injuries to the left side of the
17 Branch victim's face could have any significance. If the term
18 crossroads could have any meaning, associated to a location
19 where the bodies were found and if the full moon had any
20 bearing on the satanic nature of the crime."
21 Q. Okay. Now, you make reference in there, if the injuries
22 to the left side of the face of the Branch victim could have
23 had any significance?
24 A. Yes, sir.
25 Q. Okay. what -- why was that question asked and what was
1 the reason for inquiring about that?
2 A. I had researched some satanic in nature questions myself,
3 and in doing so I had discovered that maybe the left side had
4 some signi -- some significance, in those, type of crimes. And
5 his questions didn't refer to the left side so I asked him if
6 that had any significance in the case.
7 Q. Okay. When you referred to the left side, were there --
8 were there as extensive an injury to the right side of the
9 Branch victim's face as there was to the left side?
10 A. No, sir, there was more injury to the left side.
11 Q. Okay. And was the reason that you put that information in
12 there to see if there was any significance to injuries being
13 more prominent on the left side of the face versus the right?
14 A. Yes, sir.
15 Q. Okay. Was there any -- was that information placed in the
16 letter because of any concern or belief or theory that there
17 might be bite marks or bite mark -- something that could be
18 bite marks to the left side of the face?
19 A. Yes, sir.
20 Q. Okay. And so the extent of the reason that that
21 information was in there was to determine if there was
22 significance by being more injuries to the left side than to
23 the right side of the face?
24 A. That's correct.
25 MR. DAVIS: Pass the witness.
1 I've got one other question I forgot to ask.
2 BY MR. DAVIS:
3 Q. Officer Ridge, you were -- in conducting the investigation
4 you were present when the -- the bodies of the three victims
5 were removed from the water there at the location there in
6 Robin Hood Hills or the Robin Hood Woods, right?
7 A. Yes, sir.
8 Q. Okay. And you actually waded in the water and secured
9 some of the bodies out of the water; is that right?
10 A. Yes, sir.
11 Q. Okay. What was the condition or the nature of the bottom
12 of that ditch in terms of was it rocky, was it gravelly, was it
13 mud bottom with a soft -- how -- how would you describe it?
14 A. It was mud bottom.
15 Q. Did you sink some when you -- when you tried to wade that
17 A. Yes, sir.
18 MR. DAVIS: No further questions.
19 THE COURT: Were any photographs taken prior to
20 entering the water and removing the bodies or any
22 THE WITNESS: I'm not sure if that was done
23 prior to. Lieutenant Allen is the first person who
24 entered the water and at that point, it was to
25 retrieve a -- a visible shoe that was floating in the
1 water. And I'm pretty sure there was no photographic
2 equipment there at that time.
3 CROSS EXAMINATION
4 BY MR. MALLETT:
5 Q. Officer Ridge, would you please, for the record, give me
6 the benefit of your educational background?
7 A. I have an Associate Degree in Criminal Justice, graduated
8 from high school, and have received over nine hundred hours of
9 training in police work.
10 Q. In your -- your Associate Degree, I presume it's from an
11 accredited college or university?
12 A. Yes, sir.
13 Q. Would that be Arkansas State University?
14 A. No, sir.
15 Q. Where was that?
16 A. East Arkansas Community College in Forrest City.
17 Q. All right. And when did you obtain that degree?
18 A. In 1989.
19 Q. When you say you had been -- you had researched the
20 satanic yourself?
21 A. Yes, sir.
22 Q. When you say, "the satanic," what are you referring to?
23 A. Well, criminal activities that may deal with satanic or
24 devil worshiping, witches, any of that type information.
25 Q. Now, I'll confess, I was raised in the Episcopal church,
1 and so it may be that the teachings that I was given at my
2 church are different than whatever church you attended, and I
3 do not mean to impose on your personal religious beliefs when
4 I ask a few additional questions.
5 A. Um-hum.
6 Q. And if you're uncomfortable, just let me know, and I'll go
7 on to something else.
8 But when you talk about devil worship, are you talking
9 with reference to a fallen angel of God who lives eternally?
10 A. That's my belief in the Bible, yes.
11 Q. All right. And in your belief in the Bible there is a
12 place -- if not a geographic place at least a place in the
13 experience of the greater universe -- where there's actual fire
14 and brimstone and pain and suffering. You believe in that,
15 don't you?
16 A. Yes, sir.
17 Q. And someone to you who worships the devil has the same
18 love and devotion and respect for a place of fire and
19 brimstone, that a -- a --a person who has accepted Jesus as
20 their Lord and Savior has for heaven above. You -- you believe
21 that, don't you?
22 MR. DAVIS: Your Honor, at this time if I may
23 enter an objection. The relevancy as to this line of
24 testimony, number one, it is outside the scope of
25 direct examination, and, number two, its relevancy as
1 to these proceedings as to what his beliefs are in
2 that particular area are -- are totally irrelevant to
3 this proceeding in terms of the Rule 37 --
4 THE COURT: Well, I'm gonna sustain the
5 objection partially. I don't know what his personal
6 beliefs really have to do with anything before the
8 I am going to allow you, however, to ask him to
9 describe and define what it is he researched in the
10 course of the investigation -- at least, as it
11 relates to the occult or Satanism.
12 BY MR. MALLETT:
13 Q. Please describe and define what you researched in the
14 course of the investigation.
15 A. Okay. I read a book that had been given to me by one of
16 the prosecutors, and I contacted a coroner who had had some
17 dealings in Little Rock with what he called occult crime.
18 Q. What book did you read?
19 A. I don't remember the name of it. I've got it at home.
20 Q. And was it the coroner that you spoke to in Little Rock
21 who told you that there was some possibility that an injury on
22 the left side of the face would have a religious significance
23 to it?
24 A. Sir, I don't know who it -- who had actually told me that
25 information. I just remembered in that research that I had
1 done that that conversation had come up.
2 Q. And how did -- was it that you came upon the idea that
3 this Mr. Griffis was a person qualified to answer inquiries
4 that you put forth?
5 A. Sir, I don't know how he originally came into the case.
6 I just remember that contact was made with him.
7 Q. By you?
8 A. Yes.
9 Q. But you don't know how it came about that you contacted
10 him -- or did he contact you?
11 A. He contacted me, but I don't know who contacted him
12 originally to contact us.
13 Q. Oh, I see. Mr. -- Mr. -- Mr. Griffis contacted you and
14 what you're unaware of is that -- what we call hearsay -- the
15 conversation outside your presence -- that made him decide that
16 he would contact you? That's what you don't know anything
18 A. That's correct.
19 Q. Okay. And when he contacted you, he expressed an interest
20 in the case?
21 A. He wanted to know some of the facts concerning the case.
22 Q. An interest in whether he might in some way be helpful in
23 solving the case?
24 A. Yes, sir.
25 Q. And you had a conversation with him in which you responded
1 to his questions?
2 A. These letters, yes.
3 Q. Well, in addition to the letters, you had verbal
4 conversations with him on the telephone?
5 A. At some point, yes.
6 Q. About whether he could help solve the case?
7 A. I don't know about to solve the case, but his opinions may
8 have been of importance, and that was my endeavors.
9 Q. And your endeavor was to determine if his opinions might
10 be important?
11 A. Yes, sir.
12 Q. And you determined his opinions were important?
13 A. I didn't determine anything. I forwarded that information
14 to the prosecutor.
15 Q. Did you make a recommendation?
16 A. No, sir.
17 Q. Did you tell the prosecutor what your personal opinions
19 A. I probably did.
20 Q. And Doctor Griffis did testify?
21 A. Yes.
22 Q. And the point of the letter that you read to was about a
23 marking on the face that was very prominent and pronounced to
24 you even though you are not a pathologist, correct?
25 A. It doesn't say anything about a marking. It says,
1 injuries to the face or injuries to the left side.
2 Q. You thought there were injuries to the left side that were
3 very distinct?
4 A. Or -- I didn't say distinctive here. I just said
5 there were more injuries to the left side.
6 Q. Did you believe there were injuries to the left side of
7 the face that were distinctive?
8 A. Distinctive?
9 Q. Yes.
10 A. How are you terming distinctive?
11 Q. Excellent question. Did you see any injury that looked
12 like a pattern to you -- deliberately imposed to create some
13 kind of pattern on the left side of the face?
14 A. There were injuries that had a pattern, yes.
15 Q. And you could see them even though you're not a clinical
16 pathologist? You could see them with your own eyes?
17 A. I didn't know what they were, but, yes.
18 Q. And you wanted to find out what they were?
19 A. Yes.
20 MR. MALLETT: Thank you very much.
21 REDIRECT EXAMINATION
22 BY MR. DAVIS:
23 Q. Just for clarification purposes, Officer Ridge, I'm gonna
24 show you what is -- I think it's State's Exhibit Forty-six for
25 purposes of this nearing and seventy-one --
1 THE COURT REPORTER: Petitioner's Exhibit
3 BY MR. DAVIS:
4 Q. -- Petitioner's Exhibit Forty-six and State's Exhibit
5 Seventy-one B from the trial -- and I asked if you're familiar
6 with that photograph? (HANDING TO WITNESS.)
7 A. (EXAMINING.) Yes, sir, I am.
8 Q. Okay. And is that the -- a facial photograph -- frontal
9 view of the victim, Stevie Branch --
10 A. Yes, sir, I believe so.
11 Q. -- that was an autopsy photograph in the file?
12 A. Yes, sir.
13 Q. Okay. And at the time that you wrote this letter to
14 Doctor Griffis, is that -- were you aware of the injuries that
15 are depicted in that photograph?
16 A. No, sir.
17 Q. Okay. Were you aware that those injuries existed?
18 A. Yes, sir.
19 Q. Okay. If -- and -- and using that photograph to show to
20 the Court, why did you described, or why were you talking about
21 injuries to the left side of the face versus the right? Can
22 you show the Court what you mean?
23 A. (COMPLYING.) Well, sir, when the body was taken from the
24 water, these injuries to the side of the face were very
25 prevalent. You could see them easily.
1 Q. And were there injuries of that magnitude and that
2 consistency on the other side of the face in that photograph?
3 A. No, sir.
4 Q. Or on the body?
5 A. No, sir.
6 Q. Okay. And when you say that you could see -- you
7 described it as some type of patterned injuries --
8 A. Um--hum.
9 Q. -- injuries that seemed to be consistent with the same
10 type of -- of weapon or device?
11 A. Yes, sir.
12 Q. Okay. And did you, in your experience, try to formulate,
13 or, did you have any basis to determine what type of
14 instruments may have caused these type of injuries?
15 A. From looking at the wounds on that date, it looked like
16 instrument or knife -- sharp pointed instrument -- had been
17 repeatedly pushed into the face of the child.
18 Q. And so even though you aren't a forensic pathologist or
19 whatever, that -- based on your experience as an investigator
20 -- that's what you thought?
21 A. Yes, sir.
22 Q. Okay.
23 MR. DAVIS: No further questions.
24 MR. MALLETT: Nothing further, your Honor.
25 THE COURT: All right, you're free to go.
1 Call your next witness.
2 MR. DAVIS: Your Honor, if we could have like
3 five minutes. I haven't had a chance to just see
4 what this witness brought with him.
5 THE COURT: All right -- five to ten minute
8 (THE FOLLOWING DISCUSSION WAS HELD AT THE
10 MR. MALLETT: I'm moving to suppress and exclude
11 business records from Ron Lax for the reasons they
12 contain work product produced by him on behalf of
13 Damien Echols and that would violate Damien Echols'
14 right to the confidentiality of his work product for
15 these to be admitted in evidence by the state.
16 Furthermore, they would have greater prejudicial
17 value than probative value and under 403 ought to be
18 excluded. And we ask for the Court to rule on our
19 motion to exclude and suppress the business records.
20 MR. DAVIS: Your Honor, it's the state's
21 position -- and I requested to Mr. Lax to bring these
22 records with him and he was kind enough to do so --
23 very itemized detailed hour-by-hour, minute-by-minute
24 account of what he did in regard to this case and he
25 has brought a stack probably an inch, an inch and a
1 half thick which contains from the very inception of
2 his involvement in the case 'til the end showing how
3 many hours were spent, who the contact was with, and
4 that's basically it. Not the content of what that --
5 that may have been.
6 It's the state's position that that is highly
7 relevant and probative because it shows the extent
8 and magnitude of his investigation which -- as an
9 expert that was retained by defense counsel that's
10 one of the very issues that the defense has raised in
11 this -- that they didn't have access to proper --
12 THE COURT: You're not planning on going in and
13 asking him specific questions about the contents,
14 about the information that was revealed to him, just
15 strictly his time records; is that what you're --
16 MR. DAVIS: Right. And -- and the reason -- and
17 I want those made a part of the record so that it can
18 be seen exactly the extent -- which I don't even plan
19 to go down through item by item -- and he's brought
20 those with him and we can make copies of those and
21 supply him back with what he brought and make the
22 copies a part of the record.
23 THE COURT: All right, I'm -- I'm gonna overrule
24 the motion and rule that it is relevant to show the
25 breadth and length of time that was expended in the
1 defense of Damien Echols by Inquisitor for the
2 benefit of Val Price and -- and Mr. Davidson who
3 defended him. So it would be relevant for that
4 purpose, but I'm not gonna allow you to go into any
5 specific details or to actually reveal any work
6 product. But time records, fine. Okay.
7 And, also, I might add that it would be limited
8 only to this hearing, and I don't know that they
9 could necessarily be used in any subsequent hearing
10 or trial that might arise.
11 (RETURN TO OPEN COURT.)
12 RON LAX
13 having been first duly sworn to speak the truth, the whole
14 truth, and nothing but the truth, then testified as follows:
15 DIRECT EXAMINATION
16 BY MR. DAVIS:
17 Q. Would you state your name for the record, please?
18 A. Ronald L. Lax.
19 Q. And, Mr. Lax, where do you reside?
20 A. Memphis, Tennessee.
21 Q. Okay, and where are you employed?
22 A. Inquisitor, Incorporated.
23 Q. Okay. And can you explain for purposes of the record what
24 Inquisitor, Incorporated is -- what type of business?
25 A. Yes, sir, it's a private investigation firm.
1 Q. Okay. And how long has that been in existence?
2 A. 1978.
3 Q. Okay. And how -- what is your role in terms of ownership
4 or involvement in that particular entity?
5 A. I own the company.
6 Q. Okay. And it's been in business since nineteen --
7 A. Seventy-eight.
8 Q. Okay. And have you been working -- are you a licensed
10 A. Yes, sir.
11 Q. In what states?
12 A. Arkansas, Tennessee, and Montana.
13 Q. Okay. And how long have you been licensed as an
15 A. In Tennessee, since 1971. In Arkansas, I believe it was
17 Q. Okay. And what background, training, and experience have
18 you had to qualify you as a criminal investigator?
19 A. No formal education. I began working as an investigator
20 in 1971 with a national firm doing white collar investigations.
21 I started Inquisitor in 1978 and specialized in insurance fraud
22 and white collar crime until about 1989, at which time we
23 started doing some criminal work.
24 Q. Okay. And prior to your first contact as an investigator,
25 did you have any background -- anything that provided
1 experience or expertise in that area?
2 A. Before I was first licensed as an investigator?
3 Q. Yes, sir.
4 A. I had a college degree in accounting.
5 Q. Okay. And any -- what -- what led you into that field?
6 A. In 1971, accountants were not paid very well. I took a
7 job that was advertised for an undercover investigator with
8 Mark Lipman, Division of Guardsmark, and moved up in that firm
9 to doing white collar stuff because of my accounting background
10 and enjoyed it, and when I left them, I started Inquisitor.
11 Q. So from seventy-one until seventy-eight you did that
12 investigative work?
13 A. Until seventy-seven. I had a year's noncompete that I
14 honored and worked as an assistant comptroller at a
15 manufacturing firm -- from seventy-seven until seventy-eight.
16 Q. Okay. What area -- where did you work from seventy-one to
18 A. Probably tile first three years as an undercover
19 investigator. Then the remainder of the time in white collar
20 stuff – enbezzlement, arson, forgery -- that sort of thing. I
21 was based in Memphis, but it was pretty well national.
22 Q. Okay. What kind of clients would you have in -- under the
23 umbrella of white collar type crime -- what type of
25 A. Almost entirely corporate.
1 Q. Trying to weed out people that are stealing from their
2 own corporations or businesses?
3 A. Yes, sir.
4 Q. Okay. And did you gain experience, and learn investigative
5 techniques during that time period?
6 A. Yes, I did.
7 Q. And would you have experience in determining how to
8 conduct or what you need to do to successfully conduct a
9 criminal investigation?
10 A. Well, there's certain overlaps, yes, between white collar
11 crime and a straight criminal investigation, yes.
12 Q. Okay. And then you started your own business in
13 seventy-eight, right?
14 A. Right.
15 Q. Okay. How -- did you -- how many employees did you start
16 out -- out with?
17 A. Just me.
18 Q. Okay. And by 1993, how large had Inquisitor, Inc. grown
19 to in terms of employees?
20 A. Probably eighteen or nineteen.
21 Q. Okay. And how large an area do you service in terms of
22 providing investigative services -- in how many states?
23 A. The majority of it is Tennessee, Mississippi, Kentucky,
24 and Arkansas. We have handled cases throughout the nation.
25 Q. And how many investigators as of the spring of 1993 --
1 early summer of ninety-three -- how many actual investigators
2 did you have employed there?
3 A. Probably sixteen, seventeen.
4 Q. Sixteen or seventeen?
5 A. Yeah.
6 Q. And by that time you were involved -- had been involved
7 since -- I think you said -- 1989 with assisting in criminal
9 A. That's correct.
10 Q. Okay. In what regard?
11 A. In 1989, we were asked by one of our civil attorneys to
12 handle a murder case in Nashville where the man had been
13 convicted and he had received a new trial. He retained a new
14 attorney and that attorney was an attorney that we did white
15 collar work with, and he asked us to work with him on this
16 case. We did.
17 We had fairly good results, and the Capital Case Resource
18 Center of Tennessee out of Nashville tracked that case.
19 Afterwards, they asked us if we would be willing to handle
20 another case, which we did. And that's how we started doing
22 Q. Okay. Was the original case that you were asked to become
23 involved on, was it a capital murder case?
24 A. No, it was a murder case but it wasn't -- the death
25 penalty was not involved in that one.
1 Q. Okay. And when you refer to the Capital Resources --
2 A. Capital Resource Center.
3 Q. -- Capital Resource Center -- that's a center in the State
4 of Tennessee that deals specifically with the defense of people
5 charged with capital murder, correct?
6 A. The Capital Case Resource Center was a joint venture
7 between the federal and the state government to provide
8 assistance to attorneys handling death penalty cases both at
9 trial and post-conviction. It's no longer in business -- or no
10 longer funded. It was defunded four or five years ago.
11 Q. Okay. And you worked with that particular agency on
13 A. Yes.
14 Q. How many cases did you work with and on with the Capital
15 Resources Center?
16 A. You mean total?
17 Q. Yes, sir.
18 A. Since we first became involved, we've worked on
19 approximately a hundred and twenty-five to a hundred and thirty
20 capital murder cases.
21 Q. And would you be personally actively involved in some or
22 all of those cases?
23 A. To some extent in all of 'em, others more so.
24 Q. And so you have had investigative experience prior to
25 being associated in this case in some one hundred and twenty to
1 one hundred and thirty capital murder cases?
2 A. No, sir. Prior to ninety-three, we had handled twenty-
3 five capital cases prior to taking this case. Out of those
4 twenty-five, all but eight were post-conviction, and our
5 involvement was somewhat limited, directed explicitly by the
6 director of the Resource Center, saying, we need you to do
7 this, we need you to do that. Out of the eight cases that we
8 handled prior to that -- those were at trial level -- we
9 only asked to handle the sentencing or the mitigation phase on
10 one of those and that was in 1992.
11 Q. Of the other seven, did you handle investigative matters
12 leading up to the determination of guilt or innocence?
13 A. Yes. I think only two of those went to trial.
14 Q. Were you were actively involved in at least seven cases
15 prior to 1993 in which the investigative -- to assist with the
16 defense counsel in terms of defending someone on a capital
17 murder charge?
18 A. That's correct.
19 Q. And at least -- if I count right -- that would be
20 seventeen other cases in terms of investigation for purposes, of
21 post-conviction relief type proceedings such as this?
22 A. Yes, sir.
23 Q. Okay. And you were actively involved in each of those?
24 A. Yes.
25 Q. Okay. And was it that experience and expertise in the
1 area that caused the Capital Resource Center to use you
2 frequently at that time?
3 A. Well, I don't know if it was as much that as it was the
4 lack of anyone else.
5 Q. Now, since this time you've been involved -- I guess, if
6 there were twenty-five prior to that -- your caseload in terms
7 of capital murder investigations has increased substantially?
8 A. Yes, sir, it has.
9 Q. Fourfold since ninety-three; is that right?
10 A. At least.
11 Q. Okay. Has that been a result of your involvement in this
13 A. Probably not.
14 Q. Any of the exposure you received in this case, has it
15 benefited you in terms of business based on what you've been
16 able to ascertain?
17 A. Not positively, no.
18 Q. Okay. Now, are you familiar with other criminal
19 investigators in the Memphis area, or locally, that have the
20 type of experience that you've described in investigating --
21 private investigators that are involved in investigating
22 capital murder criminal cases than yourself?
23 A. There are two former homicide detectives from the Memphis
24 Police Department, J. D. Dacless and Gene Milner, who handle
25 capital cases. There are others that do some.
1 Q. In your --
2 A. Go ahead. I'm sorry.
3 Q. Okay. In your role as an investigator in these criminal
4 cases, is it necessary for you to have some working knowledge
5 as to the interplay of forensic sciences and how it's involved
6 in the investigation of a criminal case?
7 A. Yes, sir, it is.
8 Q. Have you had any training in that area?
9 A. I have not.
10 Q. Okay. Have you gained knowledge through your practical
11 experience as far as being involved in these investigations?
12 A. Yes, sir, I have.
13 Q. Okay. Have you ever had a case or instance in your
14 experience when you were to confer with a forensic
16 A. No, I have not.
17 Q. Were you aware that such experts existed?
18 A. Yes, I was.
19 Q. Okay. And you were aware prior to 1993 that they existed,
21 A. Probably, yes.
22 Q. Okay. And you are aware that sometimes they're consulted
23 and used in criminal investigations to provide testimony or at
24 least to evaluate cases, correct?
25 A. Yes, sir.
1 Q. And you're also familiar with a number of forensic
2 pathologists who also confer, consult and review items in
3 criminal investigations?
4 A. I am.
5 Q. Okay. And included in that list is Doctor Kris Sperry
6 out of -- I believe -- the State of Georgia; is that right?
7 A. Yes, sir, it is.
8 Q. Familiar with other -- have you used other forensic
9 pathologists to evaluate case materials and also to review
10 cases that you've been involved in?
11 A. There have been other forensic pathologists involved in
12 cases that I've been involved in. I have not worked closely
13 with them, no.
14 Q. Okay. And in your role as an investigator in these cases,
15 do you attempt to gain a thorough understanding of all evidence
16 that has been compiled in regard to the case?
17 A. I attempt to, yes, sir.
18 Q. Okay. And did you do that specifically with regard to
19 your efforts concerning these triple homicides that occurred at
20 West Memphis back in May of 1993?
21 A. I attempted to, yes.
22 Q. Okay. Did you -- what -- what did you do in terms of
23 gathering information concerning these cases?
24 A. We reviewed all of the discovery that was provided by
25 your office. We conducted interviews. We tried to develop
1 additional witnesses. We met with the attorneys. We pursued
2 -- most of the work that we did was more reaction rather than
3 direct action on our part. This was due to the fact that it
4 was a large case, we were not funded, and we did not have
5 either the manpower or the time to chase down every possible
6 lead that was there and to pursue everything. It would have
7 been nice to have been able to canvass neighborhoods to try to
8 run down all witnesses who might have been mentioned or all
9 individuals who might have been mentioned. We didn't --
10 weren't able to do that.
11 Q. How many people did you have assigned or were working on
12 this case besides yourself?
13 A. Probably Glori Shettles did more work than anyone other
14 than myself. Outside of her, we may have had two or three
15 other investigators who did isolated things like one
16 investigator, Allison Frasier, who does only locations. Or if
17 we had a witness that we needed to find, it would be turned
18 over to her department, and she would locate that witness. I
19 think one investigator was used to film the crime scene and
20 that was the extent of his involvement. Another investigator
21 was used to interview a few witnesses.
22 Q. When you say, "film the crime scene," what are you
23 referring to?
24 A. To go back and film where it happened just to give us a
25 working knowledge when we were in the office and we were
1 looking through the discovery, it would --
2 Q. What area -- what area was that film taken at?
3 A. Of the area over behind the Blue Beacon truckstop.
4 Q. What is referred to as the Robin Hood Hills area?
5 A. That's right.
6 Q. And so you referred to one person that worked on location
7 of witnesses?
8 A. Yes.
9 Q. Is that per -- is that -- in your office, is that that
10 person's primary responsibility that you use -- you have
11 someone that their specialty is to locate witnesses?
12 A. We have a department whose specialty is locating
13 individuals. Most of it is for insurance companies.
14 Q. Okay.
15 A. But we also use it for the criminal work to locate
16 witnesses, yes, sir.
17 Q. Okay. And you're able to tap in and use that resource
18 involve -- in assisting in preparing this case for defense
19 counsel, correct?
20 A. That's correct.
21 Q. Okay. In other words, if Mr. Price or Mr. Davidson or
22 yourself were having trouble locating someone you thought was
23 relevant, might -- might be important to talk to, that
24 department in your agency would help locate them?
25 A. If requested, yes.
1 Q. Okay. And Ms. Shettles, is that -- did I pronounce that
3 A. Glori -- Glori Shettles, that's correct.
4 Q. And did she have an area of expertise -- a specialty or
5 expertise -- in your agency?
6 A. Ms. Shettles has a Bachelor's Degree and a Master's Degree
7 in sociology. She was hired in January of 1993 to lend
8 assistance in our mitigation investigation. Prior to that we
9 had no one who had any experience in sociology or psychology
10 whatsoever. She had not had direct experience in mitigation or
11 capital case investigations prior to that. She had worked with
12 the state for seventeen years in paroles and probation, and had
13 worked for the district attorney's office in Shelby County for
14 a couple of years before she came to work for us.
15 Q. So she had experience in the criminal justice field but
16 not specifically in the area of mitigation?
17 A. That's correct
18 Q. Okay. And had a degree in sociology which, I assume, as
19 the owner of this business you felt like with that background,
20 with that degree, and with that experience, would be valuable
21 to you in the area of assisting in investigations regarding the
22 topic of mitigation?
23 A. Yes, sir I did.
24 Q. Okay. And she came on board in January of ninety-three?
25 A. That's correct.
1 Q. Okay. And was she involved in gathering mitigation
2 evidence for this case?
3 A. Yes, to some extent she was.
4 Q. Okay. And did that involvement begin very early on in
5 terms of your contact with this case?
6 A. Yes, sir. I -- I think we first began working on this in
7 June -- either June or July of ninety-three.
8 Q. Some of the first steps in that area would have been to
9 obtain psychiatric and psychological reports, correct?
10 A. I don't know if that was some of the first efforts. At
11 the time, Ms. Shettles did not have experience with mitigation.
12 My recollection -- which probably could be refreshed going
13 through the itemization that you have there -- is that first
14 there were family interviews that were conducted. Usually one
15 of the first steps is to collect all possible records. I don't
16 know that we did that first at that time.
17 Q. If there are medical authorizations and releases signed by
18 defendant in this case authorizing the release of psychiatric
19 reports dated as early as June thirteenth of ninety-three,
20 would those -- and on the hearing of Inquisitor, Inc. -- would
21 those reflect that at that early day you all were gathering
22 this evidence for purposes of mitigation or for whatever use it
23 could be?
24 A. Not necessarily. It's -- it's possible but usually when
25 you do an initial interview with a client, you carry releases
1 to have them sign in anticipation that you're going to
2 request those records. And you're right. Now, one of the
3 first things that we do after the initial investigation -- or
4 the initial interview, I'm sorry -- is to begin collecting
5 records. I'm not sure at that time we did it that quickly.
6 Q. So as of 6-13, if there is a signed authorization on the
7 heading of a medical release form to Inquisitor, Inc. signed
8 this defendant, that would at least reflect that that was -- at
9 that stage there was already contact between your office and
10 this defendant involving your investigation of this case?
11 A. Yes, sir. I would assume so, but our first billing on
12 this file indicates to be June fifteenth, and the initial
13 interview with Mr. Echols appears to be June the sixteenth.
14 Q. Can you recall how soon that was after he was arrested on
15 these charges?
16 A. I think he was arrested the first of June -- June third
17 June fourth -- I'm not -- I'm not positive but it seems like it
19 Q. Okay. So within a few weeks -- a couple weeks of his
20 arrest you all are already involved in investigating this case
22 A. Yes, sir.
23 Q. -- give or take a few days?
24 A. Yes, sir.
25 Q. Okay. How did you become involved?
1 A. We volunteered.
2 Q. Okay. And did you -- when you volunteered, did you make
3 your services available to defense counsel?
4 A. Yes.
5 Q. Okay. What was the first step when you say that you
6 volunteered, did you contact the attorneys representing Mr.
8 A. I think actually we first contacted Judge Raney and asked
9 who he was going to appoint or who was gonna be appointed, and
10 he gave us the date the appointments were gonna be made. And
11 then we met with Val Price and Scott Davidson and, actually, I
12 think we first received a call from Paul Ford.
13 Q. And did you represent, or did your involvement in these
14 cases -- was there one or all of the defendants that you
15 initially became involved in the investigation with?
16 A. Initially and officially, it was probably just with
17 Damien. After --- when we first took this case, it was my
18 opinion -- and this was based on the news media -- and it was
19 my understanding from our meetings with the attorneys that all
20 three of the defendants were guilty. That changed. After it
21 changed and we felt like they were not guilty, then we had more
22 interaction with Mr. Baldwin's attorneys and with Mr.
23 Misskelley's attorneys. Most of our involvement was with Val
24 Price and Scott Davidson although Dan Stidham became quite
25 involved toward the end.
1 Q. When you volunteered your services, did you do so -- did
2 you have an understanding of what, how much, or if you were
3 going to be compensated for those services?
4 A. No, sir, we did not.
5 Q. Okay. So you entered into this venture to provide the
6 services that your agency offered regardless of whether
7 compensation was forthcoming or not?
8 A. That's correct.
9 Q. Okay. And in terms of the amount of compensation that was
10 forthcoming or even whether it was, that didn't affect the
11 quality of your work in this case, did it?
12 A. Sure it did. Even though we would like to have given
13 everything a hundred percent, assign five, six, seven
14 investigators to running down every lead, economically we just
15 could not do that. We had to work this case in and around
16 other cases that were paying. I mean, we are a prof -- for
17 profit organization. We're not overly funded. We tried to do
18 what we could.
19 Did we do everything? No, we did not.
20 Was there other things we could have done? Yes.
31 Q. Isn't -- isn't that a true statement that you could make
22 about every criminal investigation you've been involved in in
23 terms of there is always something else you could do?
24 A. I'm sure that's from both the attorneys' and the
25 investigators' standpoint.
1 Q. Now, you have with your --
2 MR. DAVIS: Your Honor, if I mark these. I
3 have no idea what state exhibit we're on -- if we
4 even have a state exhibit.
5 THE COURT REPORTER: I don't think you have any.
6 MR. DAVIS: Let me mark this State's Exhibit
7 Number One.
8 (STATE'S EXHIBIT NUMBER ONE IS MARKED FOR
9 IDENTIFICATION. )
10 BY MR. DAVIS:
11 Q. I'm -- I'm showing you what is marked as State's -- oops,
12 I'd better wait until she quits writing.
13 I'm showing you what is marked as State's Exhibit Number
14 One. Can you explain to us what that file folder contains?
15 (HANDING TO WITNESS.)
16 A. (EXAMINING.) Yes, sir, this is a -- this is our billing
17 file. It on the top has a receipt from Arkansas showing that
18 we were paid on the case. There is an attorney from Scott ---
19 or a letter from attorney Scott Davidson stating he is sending
20 a check and a receipt. There is some more correspondence --
21 the majority of the file is made up of our bill and
22 itemization. All of our investigators are required to keep
23 daily time sheets. These are turned in to one of the office
24 personnel and entered into a computer by case number. At the
25 end of the case it is printed out and that's what this is.
1 Q. Okay. Does it reflect the total number of hours that
2 you've expended -- you or members of your agency -- expended in
3 the investigation and work on this case?
4 A. It does.
5 Q. And how many hours was that?
6 A. One thousand, five hundred and thirteen and a half.
7 Q. Okay. And that would include -- do you have a break-down,
8 or do you know how many of those hours you were personally
9 involved in?
10 A. It could be done, but I do not have that, no.
11 Q. Okay.
12 A. In the itemization here the investigator responsible for
13 each task is noted with initials. So, I mean, physically -- or
14 manually someone could go through and pull that out. But we
15 don't keep it otherwise.
16 Q. Okay. And so that State's Exhibit Number One not only
17 contains a cumulative total of hours but will also show each
18 item -- each particular task that a particular investigator
19 did, the amount of time involved in that task and, also, what
20 investigator actually engaged in that; is that accurate?
21 A. It will show the date. It has the investigator's
22 initials, the time that the task began, a brief description of
23 the task, total number of hours that were expended on that
24 task, and then a break -- ah, it's carried forward to how much
25 that will be. And then if there were any other expenses such
1 as mileage, copies, et cetera, that will also be noted.
2 Q. Now, when you volunteered your services for this and had
3 your first contact with Mr. Price and Mr. Davidson, did you
4 indicate to them that you had --you had some experience in
5 this area that you thought would be helpful to them in helping
6 defend Mr. Echols?
7 A. Yes, I did.
8 Q. And, in fact, you did have experience in capital cases,
10 A. I did.
11 Q. Okay. Did they -- during the course of the proceedings
12 and in your review of the evidence, did you use your expertise
13 and experience to make suggestions as to how the investigation
14 -- your investigation should go or proceed?
15 A. I guess the answer to that is yes. Although Val and Scott
16 did not -- were not overly involved in the investigation.
17 Every task that we do we provide a memorandum of the task
18 explaining what we were attempting to do and what happened and
19 what the results were. They were all sent to Val and Scott
20 periodically. We usually send out memorandums once a week to
21 each attorney on each capital case.
22 Although my experience in capital cases was limited, I had
23 had some. I recall that Scott and Val both expressed concern
24 that they had even less experience in capital cases. So their
25 involvement directly in the investigation was not as thorough
1 or as complete as I thought it should be.
2 Q. Now, in terms of the investigative efforts, in terms of
3 tracking down witnesses, looking at relevant evidence, you
4 provided a great deal of input in terms of what would be
6 A. Yes, I did.
7 Q. Okay. And frankly, your training and background and
8 experience qualifies you to do that, doesn't it?
9 A. It does to a point, but I'm not an attorney. On capital
10 cases where our work is most effective, it's a team effort
11 where you have experts in each different field and where the
12 attorneys review all of the memorandums that are sent in on a
13 regular basis and you have on-going communication where they're
14 telling you, all right, you did this, let's go forward and
15 let's do that. Then I can respond, I don't think we should, or
16 I agree with you, or I didn't think of that. We did not have a
17 lot of that in this case.
18 Q. Did you suggest that a forensic pathologist be consulted
19 in this case?
21 A. I did.
21 Q. Okay. And did the defense counsel agree that that was a
22 good idea?
23 A. To a limited -- for a limited purpose, yes.
24 Q. Okay. And in their behalf, did you consult a criminal --
25 a forensic pathologist?
1 A. I did.
2 Q. Okay. And who was that?
3 A. Doctor Kris Sperry.
4 Q. And what materials -- let me ask it this way: Let me show
5 you a packet --
6 MR. DAVIS: I guess I need to have this marked
7 as State's Number Two.
8 (STATE'S EXHIBIT NUMBER TWO IS MARKED FOR
9 IDENTIFICATION. )
10 BY MR. DAVIS:
11 Q. Let me show you what has been marked as State's Exhibit
12 Number Two and, if you could, in looking through that, identify
13 for us what that is. (HANDING TO WITNESS.)
14 A. (EXAMINING.) The first two pages is a letter I sent to
15 Doctor Sperry on February fourteenth, 1994, where I provided
16 him with a synopsis of the case. And it indicates that I also
17 provided him with a copy of the offense reports, the medical
18 examiner's autopsy reports completed by Doctor Peretti, and
19 copies of Jesse Misskelley's tape recorded confession. I asked
20 -- also included were a number of photographs which were
21 provided to us during the discovery which appear to be crime
22 scene photographs and autopsy photographs. I then asked Doctor
23 Sperry in the letter three questions -- do you want me to read
25 Q. Yes, if you could, please.
1 A. "One, can you determine a time of death. The medical
2 examiner that conducted the autopsies first informed us he
3 could not and he maintained this opinion until this past week
4 when he informed us he conducted additional tests and was now
5 fixing the time of death at 4:30 A. M. on May the sixth, 1993,
6 give or take an hour."
7 Q. Okay. Let me stop you right there. Now, you all -- you
8 had developed -- who -- who had developed that information that
9 the medical examiner had changed -- or at least was rendering
10 -- now rendering an opinion on time of death?
11 A. Paul Ford.
12 Q. Okay. And you had obtained that information from him?
13 A. Actually, he gave it to Val and Scott, and they passed it
14 on to me.
15 Q. Okay. And so that information -- was that in your
16 experience as an investigator -- was that information that you
17 had obtained from the medical examiner, was that helpful or
18 harmful to the defense of Mr. Echols?
19 A. It would have been beneficial.
20 Q. Okay. That -- that time frame would have assisted the
21 defendant if you could substantiate that, correct?
22 A. That's correct.
23 Q. Okay. And so one of the reasons that you're sending this
24 information to Doctor Sperry is to provide that and see what
25 his thoughts are on that topic?
1 A. That's correct.
2 Q. Okay. And Doctor Sperry is someone -- I believe, at the
3 very first of this letter, it indicates you were talking to him
4 previously--in the first paragraph? Did you have some
5 conversation with him maybe about another case?
6 A. (EXAMINING.) Well, at the time I was working with Doctor
7 Sperry on another case, and we may have had a conversation. It
8 actually says, "First, I apologize for the hastiness of the
9 letter. However, I am trying to get out of my office for a
10 meeting. Regarding the conversation we had Saturday, I have
11 spoken with the attorneys and they are in agreement and are
12 putting all the" --- you're right, that's on a different case
14 Q. Okay. So you were already conferring with Doctor Sperry
15 regarding another matter?
16 A. That's correct.
17 Q. Do you recall if it was a capital murder case or not?
18 A. I -- I don't even recall the case. I would hazard a
19 guess it probably was.
20 Q. Okay. And you -- so if you're consulting with him on that
21 case, you're using his experience, expertise and advice to help
22 you prepare in another matter?
23 A. Correct.
24 Q. Okay. And based on that familiarity, you contact him
25 about this case and had Val and Scott put together a packet of
1 information for him to review?
2 A. Well, actually, I think I was the one that put the package
3 together. This is the package that was sent to him.
4 Q. Okay.
5 A. These photographs along with the other things that I
6 mentioned earlier --
7 Q. Okay.
8 A. -- were sent to Doctor Sperry.
9 Q. Okay. And the first thing that you asked him in the
10 letter is to give his opinion based on these materials as to
11 the time – estimated as to time of death because you got this
12 plum from Doctor Peretti at this point that you want to know
13 how that's gonna go -- t that's gonna go -- if that's gonna -- if
14 he can back that up?
15 A. Yes, sir.
16 Q. Okay. And, number two -- what was the second item you
17 asked him?
18 A. Well, before that and still on number one, along these
19 same lines, he has told us -- referring to Doctor Peretti --
20 "He has also told us he does not believe the murder occurred at
21 the location where the bodies were found."
22 Q. Okay.
23 A. "Number two, do you see evidence of oral or anal sex
24 having been performed on the boys?
25 "Three, is there anything else you can tell us from this
1 information you think would be helpful?"
2 Q. And so you supplied that information, and included with
3 that packet were autopsy photographs; is that correct?
4 A. That's correct.
5 Q. Okay. Now, would it be -- granted, the photocopies of
6 those photographs that are contained there are somewhat hard to
7 discern exactly what they are in terms of the specifics
8 contained in the photographs, right?
9 A. Yes, sir, they are.
10 Q. Okay. Did you send with this packet the original
11 photographs -- I mean, just made photocopies for purposes of
12 providing that material to us?
13 A. That's correct.
14 Q. Okay. And would you be able to in order to save time
15 review items, photographs, and pick out based on those
16 photocopies the original photographs that were either
17 introduced into evidence or were part of the criminal
18 investigators file?
19 A. Yes.
20 Q. Okay.
21 MR. DAVIS: And, your Honor, what I would
22 request here is in order to expedite this somewhat,
23 that after Mr. Lax has testified, if he could, by
24 looking through the packet of original exhibits and
25 also any other photographs he may deem necessary, to
1 substitute and provide the originals that correspond
2 with those photocopies that are contained on that
4 THE COURT: All right.
5 BY MR. DAVIS:
6 Q. And after you submitted that letter to him, did you have
7 an occasion to contact him further?
8 A. Yes, I did.
9 Q. And what was the -- did -- did he respond to you or
10 provide information to you regarding the questions that you had
11 put to him?
12 A. Yes. He was in Memphis in regard to another case that I
13 wasn't affiliated -- wasn't involved in, and he and I met for
15 Q. Okay.
16 A. And I generated this memorandum dated 2-23-94, reporting
17 what he had -- what information he had provided us.
18 Q. Okay. At the time you met with him for dinner, did he
19 have this packet of materials with him?
20 A. No, he did not.
21 Q. Okay. Did he later or subsequently return those to you?
22 A. I think his secretary did, yes.
23 Q. Okay. Now, so you meet with him, you submitted the
24 materials to him, you submitted the questions in areas that you
25 wanted him to look at, what information based on that
1 memorandum did he provide to you?
2 A. I'll read: "Doctor Kris Sperry was in Memphis in regard
3 to another case and I met with him and discussed his review of
4 the autopsy report."
5 THE COURT REPORTER= I can't understand you.
6 You're reading too fast.
7 THE WITNESS: I'm sorry.
8 BY THE WITNESS:
9 A. "Doctor Kris Sperry was in Memphis in regard to another
10 case and I met with him and discussed his review of the autopsy
11 report and the material regarding the murder of the three
12 victims in West Memphis. He made the following observations.
13 One, it was his opinion and the opinion of" --
14 MR. MALLET: Only out of an abundance of
15 caution, your Honor. We're not objecting to this
16 hearsay that's being offered for an explanation for
17 the conduct of Mr. Lax as the investigator, but we're
18 asking the Court to restrict its admissibility for
19 that purpose and not consider it for medical truth
20 because Doctor Sperry is not here to testify.
21 THE COURT: All right, I'll sustain that
23 MR. DAVIS: Your Honor, this is information that
24 they obtained from a medical expert that they relied
25 on in preparation of their case and as part of their
1 petition it is that, number ode, they didn't have
2 access to sufficient medical experts in which to
3 gather information on various topics.
4 And, number two, that they didn't use -- utilize
5 those or they didn't have access to 'em or couldn't
6 provide them for testimony because of the inability
8 THE COURT: All you can ask this witness though
9 is what action he took based upon the information
10 that was given to him.
11 MR. DAVIS: But part of the -- I think part of
12 our presentation, your Honor, is the fact -- the
13 content of that and the information that he received
14 because of its lack of benefit to the defendant would
15 have made it --
16 THE COURT: You can ask him what he did after he
17 obtained that information. You weren't even
18 objecting to that?
19 MR. MALLETT: No. I was -- I was agreeing that
20 hearsay is admissible to explain the conduct of Mr.
22 THE COURT: Okay.
23 MR. MALLETT: I -- I just don't have Mr. Sperry
24 to cross examine, and I didn't want the Court to
25 think that we agreed with his medical opinion.
1 THE COURT: Well, I understand -- I understand
2 what -- go ahead.
3 BY MR. DAVIS:
4 Q. Let me -- let me ask you this: Are the -- are the
5 notations you made there accurate in terms of the opinions that
6 Doctor Sperry provided to you?
7 A. They're accurate to what he provided me, and he said they
8 were his thoughts on the limited review he had of the
10 Q. Okay. Do you know if he had in fact talked with Doctor
11 Peretti and discussed this case with him?
12 A. I do not know that.
13 Q. Okay. And, if you could, go ahead wherever you left off.
14 A. "One, it was his opinion, and the opinion of his colleagues
15 that the three boys did not drown but were dead at the time
16 they were put in the water.
17 "Two, the way the boys were tied indicated that that the
18 murders were sexually motivated and not indicative of any type
19 of satanic cult ritual.
20 "Three, Doctor Sperry said he did understand how Doctor
21 Peretti arrived at the time of death at 4:30 A.M. but stated
22 he did not feel Doctor Peretti took into account the cool
23 temperature of the water which would have retarded the
24 findings. He stated he would estimate the time of death as
25 eight hours earlier than the 4:30 A.M. time provided by Doctor
1 Peretti. This would make an effective time of death of 8:30
2 P. M.
3 "Four, I also received photographs back from Doctor Sperry
4 which are attached to this memorandum and after a conversation
5 with Val Price have examined all of the photographs again in an
6 attempt to find any indication that the scrapings, cuttings, or
7 markings on any of the victims' bodies resemble the initials of
8 J. B. and found none."
9 Q. Now, in your initial letter to Doctor Sperry in which you
10 supplied this information, what was the last question that you
11 asked him on that letter in terms of what his review of
12 matters was to be?
13 A. (EXAMINING.) "Is there anything else you can tell us from
14 this information you think would be helpful?"
15 Q. Okay. When you talked to him in person that evening, did
16 you also inquire of him if there was anything based on your
11 review of these materials -- anything else that's of
18 significance when you met with him that night?
19 A. Sure, I asked.
20 Q. Okay.
21 A. And this is what he told me. He said this is all he could
22 do based on the time he had spent on this case.
23 Q. Okay. Any -- any indication from him -- well, let me ask
24 you this: Did you specifically inquire of him about the
25 possibility of bite marks?
1 A. I did not.
2 Q. Okay. And you had reviewed all these autopsy photographs,
4 A. That's correct.
5 Q. And you were aware at that time that bite mark evidence is
6 something that can be presented in courts of law?
7 A. Yes.
8 Q. And that it is sometimes used as a tool in forensic
9 sciences to include or exclude or make a determination of who
10 may have been involved in the case?
11 A. I did.
12 Q. Okay. And you didn't -- after your review of all these
13 photographs, you never inquired of him anything about, do you
14 see anything in these photographs that look like bite marks?
15 A. I missed it completely.
16 Q. Okay. And you had reviewed -- how many times at that
17 point do you think you have pored over these autopsy
18 photographs and photos from the crime scene and pictures of the
20 A. I don't know. I have no idea.
21 Q. Countless times?
22 A. Numerous,
23 Q. Okay. And so you had not seen anything that caused that
24 question to come to your mind as an experienced criminal
1 A. That's correct.
2 Q. Okay. And Doctor Sperry -- after also reviewing these --
3 who is a forensic pathologist -- and you inquired in the
4 letter, is there anything else of importance, you inquire
5 personally while you're there, was that topic ever broached or
6 mentioned by him?
7 A. It was not, no.
8 Q. Had your expert forensic pathologist mentioned that, would
9 you have suggested or would you have recommended that a
10 forensic odontologist be contacted?
11 A. I probably would have, yes. If I had done what I should
12 have done, I probably would have asked Doctor Sperry to look
13 for that specifically, but I didn't.
14 Q. Because you didn't see anything on those photographs that
15 brought that to mind, correct?
16 A. I didn't see anything that I recognized as that, no.
17 Q. Now, did you consult and work with Mr. Price and Mr.
18 Davidson during the investigation and -- and trial of this
20 A. Yes, I did.
21 Q. Okay. What did you do in terms of assisting them in
22 preparing for trial other then -- in terms of direct assistance
23 during the trial of the case?
24 A. During the trial of the case, I was there, I think, most
25 of the time and our role -- or my role was in providing them
1 copies of memorandums addressing each of the witnesses who
2 testified or other documents that would directly impact on what
3 was being said from the stand.
4 Q. Okay. Did you all meet prior to the beginning of the
5 trial to discuss, to go over the testimony of the state's
6 proposed witnesses and witnesses that were proposed by the
8 A. Yes, we did.
9 Q. Okay And did you provide to the defense attorneys your
10 knowledge as to information that you had received in your
11 investigation from witnesses?
12 A. Yes.
13 Q. Okay. Did you make suggestions as to what witnesses
14 should or should not be called?
15 A. Yes, I did.
16 Q. Okay. And did they follow your suggestions?
17 A. Sometimes. Sometimes they did not.
18 Q. Okay. In other words, there were times when you discussed
19 the possibility of calling one witness, sometimes they followed
20 your suggestion and sometimes they disagreed and decided not
22 A. Yes.
23 Q. Okay. Did you suggest that they call Doctor Sperry?
24 A. I suggested that we have a more thorough pathologist
25 examine everything, yes, and we didn't have the funds for it.
1 Q. And did you -- based on the information that you
2 received from Doctor Sperry -- did you ever suggest that he be
3 called as a witness in this case?
4 A. I can' t answer that. I don't know.
5 Q. Based on your knowledge of the case file, based on the
6 testimony that came forward at the trial as to the time of
7 death, would Doctor Sperry in regard to that particular matter
8 have been helpful or harmful to the defense?
9 A. Based on the time of death -- if I recall correctly --
10 Doctor Peretti backed off of his estimate of a later time of
11 death and put it earlier in the evening. So I don't think
12 Doctor Sperry would have had much impact. I don't remember
13 specifically but --
14 Q. Was there discussion as to the strategic nature if you put
15 on a medical expert that backs the time of death up earlier
16 than what you anticipated Doctor Peretti would, was there
17 discussion as to whether that would be helpful or harmful?
18 A. I don't recall. I mean, speaking now, yes, anything that
19 would put the time of death earlier in the evening would be
20 harmful. Anything that would put it later would be beneficial.
21 I remember there was some discrepancy with Doctor Peretti in
22 what time he said it was going to be. I understand that be --
23 it's my understanding that he had told Paul Ford that it was
24 4:30 or so the next morning, but he was backing off of that.
25 Q. And let me boil it down -- did you ever sit there and say,
1 well, the problems are if we call Doctor Sperry, he might say
2 this, but he could also hurt us on time of death?
3 A. It's possible, but I don't recall.
4 Q. Okay. So you don't recall whether there was a strategic
5 decision involved as to whether with the pros and cons of his
6 testimony, that it would be more beneficial to the defendant
7 not to call him?
8 A. The only discussion I recall regarding Doctor Sperry was
9 after we -- I had the conversation with him in Memphis when he
10 gave us his initial results, was that we needed a more in-depth
11 examination by a forensic pathologist. It's possible that that
12 conversation took place and, if it did, any thoughts of calling
13 Doctor Sperry would probably have been – consideration would
14 have been giving -- be given to the fact that he would have put
15 the time of death at 8:30.
16 Q. Now, in regard to what went on at trial and your contact
17 between Mr. Echols, Mr. Davidson, and Mr. Price, were there any
18 major disagreements in terms of trial strategy?
19 A. Between the defense for Mr. Echols and the defense for
20 Baldwin, yes, there were differences.
21 Q. Between yourself and -- that was probably a poorly phrased
22 question -- between yourself -- the discussions between you,
23 Mr. Price and Mr. Davidson, did you all have major disputes as
24 to trial strategy or tactics?
25 A. My experience with Mr. Price and with Mr. Davidson is that
1 they never would engage in a serious dispute. They would
2 listen -- if they didn't agree with something, they just
3 wouldn't do it. But there was no knock-down, drag-out fights.
4 Q. Okay. Between yourself and Mr. Price and Mr. Davidson,
5 were there points that you as an experienced investigator
6 involved in criminal cases, were there knock-down, drag-out
7 disputes such as you should do this and you're not doing that?
8 A. I recall during the mitigation -- the sentencing phase
9 specifically -- that I had suggested that we needed more in-
10 depth mental health evaluation and better mitigation work, and
11 that was not agreed with. They had Doctor Moneypenny, and my
12 expertise is not in mitigation.
13 Q. But you had someone on your staff who was the specialist
14 in your investigative agency working on that, correct?
15 A. Again, she had just been hired in January of ninety-three
16 and had no direct mitigation experience in a capital case.
17 Q. But you had had experience in cases in which mitigation
18 had been involved?
19 A. Only one.
20 Q. Okay. And in regard to -- other than that discussion in
21 which you said there should have been something more than
22 Doctor Moneypenny -- anything else that you can think of in
23 terms of a dispute you had with the strategy of the attorneys?
24 A. I had counseled that we not allow the media access to
25 Damien -- the movie.
1 Q. And did you counsel -- did you counsel not only with the
2 attorneys but also Mr. Echols?
3 A. Yes.
4 Q. Okay. And did he agree with you?
5 A. I think he pretty well left it up to the attorneys. I
6 recall speaking with Mr. Sinofsky and Mr. Burlinger and telling
7 them it was my opinion that we should not. I recall that we
8 had a meeting in my office with Vat and Scott and with Joe and
9 Bruce, and I think Dan Stidham was also there, and it was still
10 my opinion that we should not be involved.
11 Q. Did any of that in terms of whether or not it was filmed
12 by HBO, to your knowledge, did any of the information filmed by
13 HBO affect what happened at the trial in terms of directly --
14 any of that information being made available to the jury?
15 A. I can't answer that. I don't know what effect it may or
16 may not have had. I think all of us are affected to some
17 extent by the media and by cameras.
18 Q. And the media attention was there already, correct?
19 A. It was. But they had not -- they had no access to Damien
20 or to what the attorneys were planning or strategizing about.
21 Q. Okay. Did you continue to work on this case after the
23 A. I have done some work, yes.
24 Q. Okay. And did you advise -- or did the attorneys advise
25 Mr. Echols to conduct interviews after the conviction with
1 members of the news media?
2 A. I can't answer that. I don't know.
3 Q. Okay. If -- if you had been given that option to make
4 that decision, would you advise for or against it?
5 A. Against.
6 Q. Okay. Do you know if Mr. Price or Mr. Davidson advised
7 this defendant as to whether to give interviews post-conviction?
9 A. I do not know.
10 Q. Okay. Do you know whether he gave interviews post--
12 MR. MALLETT: May I ask the relevancy of this?
13 I think we could move more quickly.
14 THE COURT: Okay. What is the relevance?
15 MR. MALLETT: I object to relevance.
16 MR. DAVIS: Your Honor, the relevance is that --
17 I think that the fact that he made the decision --
18 this defendant made the decision to grant post-
19 conviction interviews indicates that he made these
20 decisions on his own.
21 MR. MALLETT: Excuse me. I'm not sure that the
22 record reflects --
23 THE COURT: I don't know how this witness would
25 BY MR. DAVIS:
1 Q. Were you aware if the defendant made post-conviction
3 A. I'm really not. I -- I don't know. No, I take that back.
4 I do know. I do know that he made on interview with -- I
5 think it was Cable TV.
6 Q. Okay.
7 A. Or -- or -- what is the -- Court TV. I think there was
8 one interview that he did with them.
9 Q. Okay. And -- and that decision was reached on his own, is
10 that -- to the best of your knowledge?
11 A. I can't answer that. I don't know.
12 MR. MALLETT: Excuse me. I think -- I think he
13 can ask him if he made a decision after consultation
14 with Mr. Lax, but I don't think it's fair to ask Mr.
15 Lax to speculate to conversations outside his
17 THE COURT: Sustained. Well, what he's
18 basically asking him is, what -- what was in Damien
19 Echols' mind at the time he gave the interview, and
20 that -- I think he's the only one that knows that.
21 So he can ask him whether or not he gave him advice
22 and whether or not that advice was followed, if he
24 BY MR. DAVIS:
25 Q. Basically, Mr. Lax, you were involved within--your
1 agency was involved within a couple of weeks of the charges
2 being filed against this defendant, correct?
3 A. Yes, sir.
4 Q. And from that time until even after the convictions were
5 entered, your agency continued to provide efforts, both
6 investigative in areas of mitigation and the area of location
7 of witnesses and general criminal investigation for this
8 criminal defense, correct?
9 A. That's correct.
10 Q. And to the tune of how ever many hours -- thousand plus
11 hours -- that you've listed in your time records?
12 A. Yes, sir.
13 Q. And you are experienced -- at that time you were
14 experienced in the areas of criminal investigation and capital
15 murder cases?
16 A. I had some experience, yes.
17 Q. And the defense counsel in this case, Mr. Price and Mr.
18 Davidson, had access to not only your experience but those
19 other people in your agency?
20 A. That's correct.
21 MR. DAVIS: Pass the witness, your Honor.
22 THE COURT: Let's take a short recess -- ten
23 minute recess.
25 (RETURN TO OPEN COURT.)
1 THE COURT: All right.
2 MR. MALLETT: May I proceed, your Honor?
3 THE COURT: Yes, court will be in session.
4 CROSS EXAMINATION
5 BY MR. MALLETT:
6 Q. Mr. Lax, would you please refer to the records you have
7 before you about the consideration for your time and your
8 expenses of the case. I borrowed a calculator from a member of
9 the audience. What was the gross amount of consideration that
10 you received from -- pursuant to the Court's Order?
11 A. Seven thousand, eight hundred and ninety-one dollars and
12 ninety-nine cents.
13 Q. And in your application for compensation, you show a claim
14 for reimbursement for expenses, don't you?
15 A. Time and expenses, yes, sir.
16 Q. All right. Did any reimbursement that you received for
17 expenses, would that be out of the seventy-eight ninety-one
18 point ninety-nine?
19 A. Yes, sir.
20 Q. What were each of the expenses for which you sought
22 A. Nine thousand, sixty-nine miles at forty-five cents a mile
23 or four thousand, seventy-three dollars and fifty-four cents.
24 Long distance telephone charges is three hundred and
25 forty-three dollars and eighty-seven cents.
1 Q. Wait a minute. Three forty-three eighty-seven.
2 A. Eighty-seven. Um-hum.
3 Arkansas DMV charge, six dollars.
4 Copies, five hundred and twelve dollars and twenty cents.
5 Hotel and meals expense, eight sixty-three forty-five.
6 Miscellaneous, two-oh-one fifty-eight.
7 Q. Would you run a tab on that, please, so the record
8 reflects what you netted?
9 A. (COMPLYING.)
10 THE COURT: What was your total claim? I don't
12 THE WITNESS: Eighty-five thousand, four fifty-
13 five fifteen.
14 THE COURT: Eighty-five hundred?
15 THE WITNESS: Eighty-five thousand.
16 THE COURT: Thousand.
17 BY MR. MALLETT:
18 Q. So your claim was eighty-five thousand, four hundred and
19 fifteen dollars based on your customary hourly rate and your
21 A. Yes, sir.
22 Q. You actual comp -- your actual recovery for your time and
23 expenses was seventy-eight ninety-one point ninety-nine?
24 A. Yes, sir
25 Q. Netting out your -- subtracting your expenses from your
1 recovery, your net compensation then for your hours in the case
2 was how much?
3 A. Eighteen hundred and ninety-one dollars and thirty-five
5 Q. For how many hours?
6 A. Fifteen hundred and thirteen.
7 Q. Would you figure out how much that is per hour?
8 A. (COMPLYING.)
9 THE COURT: What is -- what is the relevance of
10 the line of questioning?
11 MR. MALLETT: I -- it's -- it's -- we're almost
12 done. I just wanted the record to reflect what Mr.
13 Lax was worth -- and it's not of the Court-- but the
14 laws of the State of Arkansas for underwriting
15 expenses for poor people charged with capital murder.
16 THE COURT: Okay. If you think it's got some
17 relevancy, go ahead.
18 BY THE WITNESS:
19 A. A dollar and nineteen cents an hour.
20 THE COURT: I'll stipulate that's below the
21 minimum wage. (LAUGHTER.)
22 BY MR. MALLETT:
23 Q. In the beginning according to your investigation, did you
24 see some indication that there was interest -- that there was
25 an interest in the investigation by a juvenile probation
1 officer named Jerry Driver?
2 A. It was my impression that the entire thrust toward Damien
3 Echols was driven by Jerry Driver.
4 Q. And who was Jerry Driver?
5 A. He was the juvenile officer on Crittenden County.
6 Q. Do you know where he's employed today?
7 A. I don't know if he's still in jail or not or if he ever
9 Q. In the testimony that you gave on direct examination,
10 here was conversation about whether you had con -- whether you
11 spoke to Mr. Price and Mr. Davidson about hiring a forensic
12 pathologist to make an in-depth study. Do you recall that
14 A. Yes, sir.
15 Q. To your best recollection, what was Mr. Price's response
16 to that suggestion?
17 A. We didn't have funds.
18 Q. In the course of your conversation, did you ever talk
19 about having an expert in the field of crime reconstruction
20 examine all of the available evidence?
21 A. We did discuss that, yes.
22 Q. Was a suggestion made by anyone in those discussions to
23 which you and Mr. Price were parties that a crime
24 reconstruction person be employed?
25 A. It was considered.
1 Q. Was a crime scene reconstruction person employed?
2 A. No, we did not have funds.
3 Q. Was there conversation about hiring a specialist in the
4 field of entomology, or as we say informally, a bug man, to
5 consider the evidence?
6 A. Yes, there was.
7 Q. And was the suggestion made that an entomologist be
9 A. Yes, sir
10 Q. And what was the result of that discussion?
11 A. We didn't have funds.
12 Q. Was there an indication that the other side -- the law
13 enforcement side of this investigation -- had utilized to any
14 extent the services of someone calling themselves a criminal
16 A. Yes, there was. In some of the discovery we received
17 there was indications that -- I think it was F. B. I. -- had
18 conducted a -- a profile.
19 Q. Was there conversation amongst you end Mr. Price and
20 others in which you were a participant about whether to hire a
21 criminal profiler?
22 A. There was discussions about the profile that was
23 supposedly done. I do not remember specifically that we
24 discussed hiring a profiler, no.
25 Q. Do you ever recall discussions of hiring any other
2 A. Not specifically, no. I know that at different times we
3 would discuss different experts. I know we wanted a satanic
4 cult expert. And we were able to obtain that because the
5 individual agreed to provide his services at no charge assuming
6 we could use him during his vacation time.
7 Q. Let me show you what is in evidence as Petitioner's
8 Thirty-one which is an instrument entitled, "Motion for
9 Appropriation of Funds for Expert Witnesses in the Guilt/
10 Innocence and Mitigation Phase." Have you ever seen
11 Petitioner's Thirty-one before today? (HANDING TO WITNESS)
12 A. (EXAMINING.) No, sir, I have not.
13 Q. Do you recall then a time when you had a conversation with
14 Mr. Price and Mr. Davidson about whether to submit to his Honor
15 -- Judge Burnett -- a written request for a promise that the
16 Court would pay reasonable costs for expert witnesses?
17 A. Yes, sir.
18 Q. Is that a conversation that occurred sufficiently in
19 advance of trial that -- presuming prompt judicial action --
20 you could have acted upon an award of such a promise of funds
21 being made available for experts?
22 A. I think the first time it was discussed was right after we
23 became involved in the case in June of ninety-three.
24 Q. To your memory -- in your memory, is there any explanation
25 or understanding for why no one went to Judge Burnett to ask
1 Judge Burnett to help underwrite the costs of this defense?
2 A. The only thing I remember Mr. Price responding was that
3 that it wasn't usually approved here.
4 Q. To your knowledge, was such a written request ever made to
5 Judge Burnett based on the meetings that you attended and the
6 papers that you reviewed?
7 A. No, sir.
8 Q. Was there ever a conversation in a meeting in which you
9 participated in which it was agreed amongst you that the
10 reasonable costs to adequately defending Damien Echols would be
11 paid for by Home Box Office or any company interested in
12 making a movie?
13 A. The only recollection I have of money was when Home Box
14 Office first approached us and they were paying a certain sum
15 to the victims' families and to each of the defendants.
16 Q. But did you ever participate in an agreement amongst the
17 lawyers that all the help Damien Echols might need to get
18 himself a full and fair defense would be the amount of money
19 that could be obtained from Home Box Office?
20 A. No, sir.
21 Q. When the time came that Home Box Office was making contact
22 with members of Damien Echols' family -- specifically with Pam
23 Hutchinson, his mother, and others -- did you engage in
24 conversations with Mr. Price and Mr. Davidson about whether you
25 should accept the opportunity for a film to be made with the
1 cooperation of Damien Echols and his defense team?
2 A. Yes, we discussed that.
3 Q. What was your opinion and recommendation?
4 A. That we should not.
5 Q. For what reason?
6 A. This case received a lot of media. Past experience with
7 the media has always shown to me that it's just not something
8 that you do. It doesn't usually turn out to be beneficial. At
9 the time my experience was limited. The seminars that I had
10 attended all counseled against any participation with the
12 Q. Up until the time that the decision was made to allow the
13 cameras in the courtroom, was there ever a conversation in
14 which you were a participant and Mr. Price was present in which
15 there was a discussion about the absolute right of a defendant
16 in an Arkansas criminal proceeding to exclude the news cameras
17 from the courtroom?
18 A. I don't recall.
19 Q. Were you ever present when Mr. Echols was informed of that?
20 Was he ever informed in your presence that a defendant could
21 keep the cameras out of the courtroom if the defendant wanted
22 to -- as best you can remember?
23 A. That's familiar, but I can't specifically say that. I do
24 not recall.
25 Q. In your time as an investigator, have you, on occasion,
1 taken upon yourself to stay to the end of the trial and hear
2 the prosecution make the final summation to the jury?
3 A. Yes, sir.
4 Q. At the guilt stage of criminal trials?
5 A. Yes, sir.
6 Q. And at the punishment stage of criminal trials?
7 A. Yes, sir.
8 Q. Have you ever heard a prosecutor make an argument that
9 sounds something like this: Ladies and gentlemen, your verdict
10 is important because it will send a message, people will know
11 what happened here today?
12 A. Yes, sir.
13 Q. You've heard arguments like that, haven't you?
14 A. Yes.
15 Q. So that when in this trial, as you contemplated before the
16 trial there being a jury sitting in a jury box like this jury
17 box, you well understood from your experience and your
18 education and your training as an investigator who had observed
19 trials, that in the event Damien Echols were found guilty and
20 the jury was called upon to make that critical decision of
21 whether they would ask that he be killed under color of the law as
22 punishment for his offense for which they have convicted him,
23 you well understood then that the jury might hear an argument
24 that would go something like this: Ladies and gentlemen,
25 people will hear about the decision you make today. And that
1 if you let the cameras in everybody in the country would know
2 about it and see it. You knew that, didn't you?
3 A. Yes, sir.
4 Q. Is that the sort of thing that might make you hesitate to
5 want the cameras in the courtroom?
6 A. Personal opinion is I don't think cameras should be in the
7 courtroom. I didn't then and I don't now.
8 Q. Do you recall that Mr. -- Doctor Kris Sperry was
9 compensated for reviewing these materials on the basis of the
10 time that he put in the case?
11 A. I think he gave us a flat fee for just a cursory review
12 and to address those specific questions.
13 Q. If I suggest to you that his consideration was
14 approximately in the range of four hundred dollars, does that
15 kind of jog your memory?
16 A. I honestly think it was three fifty, but somewhere in that
18 Q. All right. Is that what you would consider a – ah, in-
19 depth, ah, thorough study by a forensic pathologist?
20 A. No, sir, not even at minimum wage.
21 Q. If we go through the records that have been introduced as
22 Prosecution Exhibit One in this proceeding, is there sufficient
23 detailed information in there that we could actually perform a
24 study and figure out the number of times that you attended a
25 meeting at which both Mr. Price and Mr. Davidson also attended
1 and were with you?
2 A. Yes, sir.
3 Q. And we could also make a deduction of the length of those
5 A. Yes, sir.
6 Q. Do you have an extra copy of the papers that were
7 introduced as Prosecution Exhibit One?
8 A. I have the originals.
9 Q. Oh.
10 A. Yes, sir.
11 Q. And then there's a copy that's been substituted into
13 A. Yes, sir.
14 Q. All right.
15 A. Well, let me clarify that. Actually, I have a copy. The
16 originals were sent to Mr. Price.
17 Q. All right.
18 A. A copy a copy was made.
19 Q. But you haven't actually had occasion to perform the study
20 I just suggested because no one has asked you to.
21 A. I have not, no.
22 Q. I believe you were indicating that in other cases which
23 you've worked, you found that the most successful approach to
24 the case followed a high degree of cooperation between the
25 investigator on one hand and the defense attorneys on the
2 A. Not only the investigators and the defense attorneys but
3 with the jury consultants, the mitigation specialists, the
4 psychologist, the psychiatrist, the crime scene
5 reconstructionist, everyone that is on the team. It's -- it's
6 a joint effort. It's a team effort.
7 Q. And as to this case -- inferring from your answer that it
8 was not a team effort -- who do you see as not working as a
10 A. I'm not sure that any of us were working as a team. We
11 had none of the other experts. We had Doctor Sperry. We had
12 the satanic cult expert. Outside of one telephone conversation
13 that I had with him, I never had the opportunity to discuss the
14 case with him. With Doctor Sperry, I don't think there was any
15 conversation directly between the attorneys and Doctor Sperry.
16 My conversations with him resulted of -- or was the initial
17 contact, the letter and then the follow-up meeting.
18 Q. Do you recall the attorneys ever taking it upon themselves
19 to contact Doctor Sperry directly so far as you could tell --
20 A. Not --
21 Q. -- from conversation with Doctor Sperry --
22 A. Not --
23 Q. -- the documents that you saw, the meetings that you
25 A. Not to my knowledge, no, sir.
1 THE COURT: Did you not have a jury consultant
2 that stayed from the beginning to the end and all the
3 way through the guilt -- the sentencing phase?
4 THE WITNESS: We did not, no, sir. Mr.
5 Baldwin's attorney did.
6 BY MR. MALLETT:
7 Q. Do you recall having a meeting -- having -- attending a
8 meeting in which you -- in which Mr. Val Price said, well, --
9 in effect -- our defense will be as follows: Jesse Misskelley
10 has been convicted of murder on the strength of his confession
11 and though our jury knows that he was convicted on the strength
12 of his confession, his confession will not be offered as
13 evidence in our case. Therefore, we will be found not guilty.
14 Do you recall Mr. Price proposing that that would be the theory
15 of the case?
16 A. Yes, sir.
17 Q. Is that a theory of the case that you recommended?
18 A. No, because it was my impression that although Mr.
19 Misskelley's statement would not be introduced, there were very
20 few people in the county that didn't know about it. I mean, it
21 was -- the publicity in this case was quite high.
22 Q. Was it your recommendation that the jury selection be --
23 be conducted -- was it your recommendation that jury selection
24 be conducted with the panel being interrogated by the lawyers
25 and the lawyers never asking the people on the panel if they
1 could set aside their specific knowledge of the Misskelley
3 A. I was never asked about that.
4 Q. Were you asked about whether, the prospective jurors should
5 be asked their feelings about the theory that so-called cults
6 exist which in some way which -- it sounds so strange to say --
7 groups of people that in some ways think it's a good idea to
8 live for an eternity in fire and brimstone? Did you ever have
9 any conversation about how we should have a jury selection and
10 not go into all of that during jury selection?
11 A. There was discussions that we tried to keep all references
12 to satanic cults, satanic worship out, yes.
15 Q. So that you not ask the jurors their feelings on those
14 subjects -- that was a decision -- is that a recommendation you
16 A. No. I had very little to do with the actual jury voir
17 dire at all.
18 THE COURT: Were you present during any of the
19 pretrial hearings on those subjects?
20 THE WITNESS: Some I was probably. Some I was
22 BY MR. MALLETT:
23 Q. You say that when the case began, that you began working
24 as an investigator on the premise that Damien Echols was
25 criminally -- criminally responsible for the death of these
1 three boys. Is that what you said?
2 A. Yes, sir.
3 Q. And that as time passed and you gained more evidence and
4 more information, you questioned your earlier position?
5 A. I did.
6 Q. Did you form an opinion in your own mind that -- as you
7 continued to work whether he was more likely innocent or guilty
8 of the charges?
9 MR. DAVIS: Your Honor, I object to this
10 question in terms of his opinion regarding that. It
11 is not relevant to any issue involved.
12 THE COURT: Sustained.
13 MR. MALLETT: For the record, your Honor, I
14 believe I'm in the area opened on direct examination
15 by the state prosecuting attorney.
16 THE COURT: I think his objection is to whatever
17 opinion Mr. Lax may now hold, and I'll sustain the
18 objection to what his opinion of the guilt or
19 innocence of Mr. Echols is or might be.
20 MR. MALLETT: I take it the Court -- not meaning
21 to argue -- but so the record is clear -- is the
22 Court sustaining that as against our representation
23 that the subject was opened by the state on their
25 THE COURT: Well, you're gonna have to explain
1 how it was opened, 'cause I don't --
2 BY MR. MALLETT:
3 Q. What did Mr. Brent Davis ask you respecting -- what did --
4 what did you testify to on direct examination respecting your
5 feelings about the guilt or innocence of Damien Echols?
6 MR. DAVIS: Your Honor, I object to that
7 question because whatever he responded is not
8 something that the state opened the door to.
9 THE COURT: I don't think the door was opened.
10 I mean, I -- you've already -- he's already indicated
11 what -- that he initially entered the case with the
12 belief that Mr. Echols was guilty and in the course
13 of it changed his mind. So I guess you've already
14 gotten his opinion in the record anyway. But if you
15 wanna specifically get him to state his opinion and
16 the reasons for it, I'm gonna sustain the objection
17 for it -- to it. I -- I obviously know from his
18 answer what his opinion would be.
19 MR. MALLET: I guess I can ask it this way.
20 BY MR. MALLETT:
21 Q. After you changed your mind and stopped thinking he was
22 guilty, up until the time of the appeal being completed when
23 you were no longer working for Mr. Price, did you change your
24 mind a second time, or did you have a consistent opinion after
25 you first changed your mind?
1 MR. DAVIS: Your Honor, I object again. He's
2 again asking him for his opinion, and his opinion as
3 to the guilt or innocence of this defendant is
4 irrelevant to these proceedings.
5 THE COURT: Sustained. I think we all know the
6 answer that Mr. Lax might give.
7 BY MR. MALLETT:
8 Q. In the movie, "Paradise Lost" or "The Murders at Robin
9 Hood Hills" -- whatever the proper name is -- in the movie,
10 there is a scene in which Mr. Davidson and you and Mr. Price
11 are sitting around informally having a conversation about
12 whether to sponsor the -- and call the witness, John Mark
13 Byers. Do you recall seeing that part of the movie?
14 A. Yes, sir.
15 Q. That particular footage that was shown in the movie, that
16 particular footage was a staged re-creation of a conversation,
17 wasn't it?
18 A. Yes, sir.
19 MR. MALLETT: May I have one minute, your
21 THE COURT: Um-hum.
22 MR. MALLETT: Thank you, Mr. Lax.
23 I did think of one more question. I'm sorry.
24 THE COURT: All right.
25 BY MR. MALLETT:
1 Q. When did you -- to the best of your knowledge -- when did
2 this defense group get Mr. -- Doctor Moneypenny involved with
3 reference to the trial beginning in February?
4 A. It was very late in the case. I'd -- maybe Dec -- I mean,
5 January. I'm -- I'm not sure.
6 Q. Shortly before trial?
7 A. Shortly before trial.
8 MR. MALLETT: Thank you.
9 REDIRECT EXAMINATION
10 BY MR. DAVIS:
11 Q. And Mr. Moneypenny's testimony would have occurred -- if
12 the trial ended -- and you can correct me if I'm wrong -- but
13 if it ended -- the punishment phase was sometime -- March
14 sixteenth, seventeenth, you're talking a month and a half or so
16 A. That sounds about right.
17 Q. Okay. And you said that you had conversations regarding
18 the obtaining of a crime scene reconstructionist?
19 A. Yes, sir.
20 Q. And that's basically to perform an investigation and look
21 at a crime scene and kind of put it back together to see if it
22 fits with the facts, right?
23 A. That's correct.
24 Q. Okay. And those type of people -- you see those people
25 who have expertise in that area that are law enforcement
2 A. Some are. Some are ex-law enforcement. Some are
4 Q. Okay. And basically they gather or glean that expertise
5 from experience in working in criminal investigations, studying
8 criminal investigations and studying how crime scenes fit or do
7 not fit with the physical evidence, right?
8 A. That's correct.
9 Q. Okay. And you've had experience in those areas, haven't
11 A. I have, but I would not go anywhere close to saying that I
12 was a crime scene reconstructionist.
13 Q. But the same kind of conclusions that they draw from --
14 from comparing evidence and looking at it, you also made
15 certain observations yourself?
16 A. Sure, I can make observations, but I have had no formal
17 training and, by all means, I'm not qualified as a crime scene
19 Q. But you were able to provide some input into the areas as
20 to whether the physical evidence that you discovered and that
21 you uncovered fit with the allegations as to whether certain
22 areas were or were not crime scenes?
23 A. Sure, I was able to say, this looks like something we need
24 to look into. We need to determine if this is true or if this
25 is not true, can we find any more evidence regarding this.
2 Q. And in terms of an entomologist, you said that you
3 considered talking or having contact with an entomologist?
4 A. Correct. The time of death situation again, were there
5 any bugs, larvae on the bodies, could it be determined how long
6 they had been there, that sort of thing.
7 Q. And -- and who came up with the theory that was aware the
8 entomologist might provide relevant testimony and suggested
9 that to defense counsel?
10 A. I'm sure I did.
11 Q. And that would be regarding whatever significance or
12 importance an entomologist could place on whatever evidence
13 existed regarding bug activity?
14 A. Correct.
15 Q. And so depending upon how crucial or vital that is would
16 depend on how important it was that such an expert wasn't or
17 was not -- or was or was not contacted, correct?
18 A. Repeat the question.
19 Q. Okay. Whether or not the failure to contact a
20 entomologist had an impact on the ultimate result would depend
21 on how relevant or significant their testimony in that area
22 might be?
23 A. Yes, but I think that's true with anyone. What they
24 testify to is gonna have a direct bearing on whether it was
25 important or not.
1 Q. And the time of death issue, you already were presented
2 with conflicting opinions on it, correct?
3 A. That's correct.
4 Q. Okay.
5 A. So it would have been very important to have someone who
6 could give us a more exact time of death.
7 Q. Okay. But from your experience in criminal
8 investigations, based on the information that you had, the
9 estimate of the time of death was going to be, at best, very
10 tenuous, correct?
11 A. Based on what we had so far, that's correct. I mean, we
12 had a -- a range from 8:30 until 4:30 the next morning.
13 Q. Okay. And your hope with the entomologist would be that
14 -- the relevancy of that testimony would be that they could
15 ascertain it to a finer, more definitive point, correct?
16 A. Yes.
17 Q. Okay. And if they couldn't do that based on entomological
18 examinations, based on the state of the evidence, then the
19 failure to obtain one or to seek one would have been of little
21 A. I'm not trying to be argumentative, but are you saying
22 that if the evidence wasn't there for them to make an opinion,
23 it would have had little consequence?
24 Q. Right.
25 A. That's kind of a no-brainer, yeah.
1 Q. So ultimately, the result of failure to obtain or to
2 consult with a forensic entomologist, the importance of that in
3 terms of how this case unfolded or how it evolved, would be
4 based on the degree of significance that that testimony that
5 they could present would be, right?
6 A. (NO RESPONSE. )
7 Q. Let me simplify it. If they --
8 A. Please.
9 Q. If they could say -- if based on the evidence that was
10 submitted to them, they could say, yes, we have a strong
11 opinion that the time of death occurred here, then that might
12 be significant, right?
13 A. Yes, sir.
14 Q. And if they could say, they didn't do the proper studies,
15 the evidence isn't there, we don't have enough information, and
16 because of the factors we can't make any sort of scientific or
17 relevant estimate as to time of deaths then the fact that you
18 didn't consult one wouldn't really make a big difference, would
20 A. That's correct.
21 THE COURT: What evidence was there that one
22 was even warranted other than the fly eggs?
23 THE WITNESS: I'm not an expert in that field.
24 I just know that they are able in certain cases to
25 determine by the activity --
1 THE COURT: They've got to have the material or
2 some information from the case to -- to -- to make
3 some finding on. I think that's what Mr. Davis is
5 THE WITNESS: Well, usually fly larvae -- larvae
6 is one of the main things they look at.
7 THE COURT: Well, larvae are maggots.
8 THE WITNESS: That's right.
9 THE COURT: I don't -- was there any evidence of
11 MR. MALLETT: May it please the Court, yes.
12 THE COURT: Well, I don't remember any. Okay.
13 BY MR. DAVIS:
14 Q. Was that evidence preserved?
15 A. I don't know that. It should have been.
16 Q. And you obtained the satan -- satanic cult expert, Mr.
17 Hicks, correct?
18 A. Yes, sir.
19 Q. And you had no suggestion -- you made no suggestion to
20 hire a criminal profiler?
21 A. To the best of my recollection, no. Our concern was more
22 along the lines of where is the original profile which we were
23 never provided.
24 Q. Okay. And you say that you saw evidence that a F. B. I.
25 criminal profiler may have been involved?
1 A. There was documentation in the discovery that a profiler
2 had been used. I think Detective -- I forgot what his title is
3 -- Captain Gitchell at one time told us there wasn't one and
4 then another time he told us, yes, that one had been used to a
5 limited extent. If we had received the documentation of what
6 that profiler said, it might have made a determination on
7 whether we wanted to hire one of our own -- depending on what
8 it said. I mean, if it said stuff that was advantageous to us,
9 yes, we would be happy to go with that. If it said something
10 that was disadvantageous to us, we would want to hire our own.
11 But we never received that.
12 Q. But in terms of your experience and expertise in the
13 necessity and importance of a criminal profiler, you never felt
14 that that was something that you should do in this case in
15 order to -- to represent this defendant?
16 Or let me -- let me back it up. You didn't make a
17 suggestion to?
18 A. No, I did not.
19 Q. Okay. It wasn't something you suggested or was discussed
20 that was determined not to be appropriate because you didn't
21 have funds?
22 A. Well, let me say this: During the last five years, I've
23 learned a lot more about handling capital cases than I knew in
24 1993. At present, we document everything that we think should
25 be done, or that we're suggesting that the attorneys do. In
1 1993 we did not. Some of our reservations at that time was
2 because everything that we needed or suggested, we were told
3 there were no funds.
4 Q. But you never even made the suggestion for this, right?
5 A. Not to my knowledge, we did not.
6 Q. Okay. And had you deemed it important, you would have
7 made such a suggestion even if you were told it wasn't
9 A. No. I deemed that it was important. It would have been
10 more important if we'd had the original profile that the F.B.I.
11 allegedly did. Not having that profile, I'm not sure how
12 important it would have been.
13 Q. But in fact you never suggested to either of these
14 attorneys, even though you were familiar with criminal pro --
15 profiling as an area that you could obtained experts in, you
16 never suggested that was something that was important or
18 A. I did not.
19 Q. And in terms of these questions about your input into jury
20 selection, I mean, you aren't qualified to advise attorneys on
21 jury selection, are you?
22 A. I am not.
23 Q. And they may, whereas attorneys consult with you about
24 aspects of the investigation or suggestions on investigation,
25 it's a rare instance that they contact you to consult you about
1 how they should conduct voir dire in a criminal case, isn't it?
2 A. That happens quite a bit now, yes.
3 Q. And did you -- were you there and present to lend your
4 expertise to the preparation and conducting of the voir dire?
5 A. I was not.
6 Q. And was that because you didn't really feel that your role
7 in conducting and preparing voir dire was one of importance?
8 A. No, it was because I didn't have any expertise in that
9 area and, at the time, we were out trying to find additional
11 Q. And the fact -- when you added up and computed the money
12 that you ended up making per hour based on the time you spent,
13 when you were spending that time, the amount that you were to
14 be paid was unknown, correct?
15 A. That's correct.
16 Q. Okay. And the time and the effort you expended in behalf
17 of assisting Mr. Price and Mr. Davidson, you gave your best
18 effort to -- to assist them and provided investigating services
19 for them to the tune of fifteen hundred -- of one thousand,
20 five hundred thirteen hours?
21 A. We invested one thousand, five hundred hours, yes.
22 Q. Okay.
23 A. Could we have done more? Yes.
24 Q. And did the quality of your work in that one thousand,
25 five hundred thirteen hours, did -- was it of less quality than
1 if you had been -- if you had received more in compensation
2 than -- I believe it was seven thousand eight hundred ninety-
3 one dollars?
4 A. No. We did the best we could with the experience we had
5 at the time.
6 MR. DAVIS: No further questions, your Honor.
7 MR. MALLETT: If the Court will allow me, there
8 is one small point that I neglected to make early --
10 RECROSS EXAMINATION
11 BY MR. MALLETT:
12 Q. With respect to payments that were gonna be made to Damien
13 Echols for agreeing to be interviewed by the movie makers, was
14 it understood by you in these conversations that this money was
15 going to go to Val Price and Scott Davidson to pay for expenses
16 connected with this case, or did you have some other
18 A. The only under -- only understanding that I had was that
19 the money was to put into a trust fund for Damien's son.
20 MR. MALLETT: Thank you very much.
21 MR. DAVIS: No further questions, your Honor.
22 THE COURT: All right, you're free to go. Thank
23 you very much.
24 Call your next witness.
25 MR. DAVIS: Your Honor, our next witness won't
1 be available until tomorrow morning.
2 THE COURT: All right, approach the bench.
3 (AN OFF-THE-RECORD DISCUSSION WAS HELD AS TO
4 SCHEDULING OF WITNESSES AND FURTHER HEARING DATES.)
PETITIONER EXHIBIT 43 - RESUME OF BRENT TURVEY
PETITIONER EXHIBIT 45 - CV - DOCTOR DAVID
PETITIONER EXHIBIT 46 - AUTOPSY PHOTO - BRANCH
PETITIONER EXHIBIT 47 - PHOTO OF WAX DENTAL IMPRESSIONS
PETITIONER EXHIBIT 48 - PHOTO OF WAX DENTAL IMPRESSIONS
PETITIONER EXHIBIT 49 - PHOTO OF WAX DENTAL IMPRESSIONS
PETITIONER EXHIBIT 50 - PHOTO OF WAX DENTAL IMPRESSIONS
PETITIONER EXHIBIT 51 - AUTOPSY PHOTO - BRANCH
PETITIONER EXHIBIT 52 - LETTER FROM ADC
PETITIONER EXHIBIT 53 - PHOTO - CASTS - "JM"
PETITIONER EXHIBIT 54 - PHOTO - CASTS - "JB"
PETITIONER EXHIBIT 55 - PHOTO - CASTS - "DE"
PETITIONER EXHIBIT 56 - COMPARISON PHOTO - MISSKELLEY
PETITIONER EXHIBIT 57 - COMPARISON PHOTO - MISSKELLEY
PETITIONER EXHIBIT 58 - COMPARISON PHOTO - BALDWIN
PETITIONER EXHIBIT 59 - COMPARISON PHOTO - BALDWIN
PETITIONER BXHIBIT 60 - COMPARISON PHOTO - ECHOLS
PETITIONER EXHIBIT 61 - COMPARISON PHOTO - ECHOLS
PETITIONER EXHIBIT 62 - CV - JOSEPH COHEN
PETITIONER EXHIBIT 63 - CV - JOHN HUTSON
STATE EXHIBIT 1 - TIME RECORDS - RON LAX
STATE EXHIBIT 2 - MATERIALS SENT TO DOCTOR SPERRY BY RON LAX
STATE OF ARKANSAS REPORTERS CERTIFICATE SECOND JUDICIAL CIRCUIT I, Barbara J. Fisher, Official Court Reporter within and for the Second Judicial Circuit of the State of Arkansas, duly qualified, appointed and acting, do hereby certify that the foregoing pages of printed matter contain a true, correct and complete transcript of my stenographic notes taken in this cause in the Circuit Court of Craighead County, Arkansas, when the above-entitled cause was heard. IN WITNESS WHEREOF, I have hereunto set my hand on this 8th day of January, 1999.BARBARA J. FISHER CERTIFIED COURT REPORTER BARBARA J. FISHER ARKANSAS SUPREME COURT CERTIFIED COURT REPORTER CERT#49