IN THE SUPERIOR COURT OF THE STATE OF CALIFl IulIA IN AND FOR THE COUNTY OF SAN DIEGO

Transcription

1 N THE SUPEROR COURT OF THE STATE OF CALFl ula N AND FOR THE COUNTY OF SAN DEGO DEPARTMENT 12 BEFORE HONORABLE RCHARD M. ) THE PEOPLE OF THE STATE ) OF CALFORNA, ) PLANTFF, ) ) VS. ) NO. SCDll ) JOHN VAN KOCAK, ) DEFENDANT. ) ) 1465 REPORTER'S PARTAL TRANSCRPT NOVEMBER 17, 1995 APPEARANCES: FOR THE PLANTFF(S): MCHAEL CA.NTJ~ DEPUTY DST CT ATTORNEY 220 WEST DR ~WAY SAN DEGO, A FOR THE DEFENDANT(S): RAYMOND ARA ion DEPUTY PtlBL e DEFENDER 233 A STREE, SUTE 400 ' SAN DEGO, ia ROBN SUNKEES, CS NO COURT REPORTER, S fpeluor COURT SAN DEGO, CALFO ina

2 -N-O-E-X PG LN , 2:25 P.M. * 2 1 CHARLOTl'E WORD, + REDRECT EXA1'NATON + RECROSS-EXAMNATON +. CALLEO AS A WTNESS BY MR. CARPENTER; BY MR. ARAGON: i 7

3 1. SAN DEGO, CALFORNA, FRDAY, , 2: P.M. 2 J (WHEREUPON, THE FOLLOWNG PROCEEDNGS K PLACE XN 6 7 OPEN COURT.) THE COURT: THE RECORD WLL REFLECT AND DEFENDANT ARE PRESENT. WE HAVE HAD A 30-MNUTE RECESS. AM ~- FEEL THAT WE NEED TO FNSH WTH DR. WORD'S TESTMONY TODAY MATTER HOW 1.1. LATE T TAKES SO THAT SHE DOES NOT NEED TO COME BA ON MONDAY AND NOT GO ON VACATON TOMORROW, SO -- MEAN, F U CAN PNSH N A HALF AN HOUR, GREAT. F NOT, 'M STAYNG. MR. CARPENTER: GOOD. 1.5 THE COURT: SO.F YOU WANT TO STAFF, FEEL FREE. MR. CARPENTER: WELL, WOULD NDCATE TO COUNSEL THAT N ANALYZNG THE FLM N PRESENTATO BREAK AND N CONJUNCTON WTH THE NOTES THAT WERE 20 WORD HAS POUND AN ERROR, AND WE'D LKE TO NDCAT COURT N REGARD TO THS. AND BELEVE THAT THE THAT THE LANES. WERE MSLABELED BY THE STAFF MOLE BOLOGST SO THAT THE LANE LANES DR. WORD: THAT'S NOT CORRECT. MR. arpenter: WELL, THE REPORT THAT REFL S THE DR. WORD: THAT'S CORRECT. MR. CARPENTER: SO 'LL JUST ASK DR. WORD, YOU KNOW,

4 1 NOCATE WHAT SHE HAS FOUND N REGARD TO THS BAS ON SEENG T 2 AND PRESENTNG T TO YOU BEFORE THE BREAK. 3 AND APOLOGZE FOR THE LENGTH OF OUR N 4 COMNG BAClC, BUT WE WERE TRYNG TO MAKE SURE THAT T Q HAVE 5 FOUND, NOW, S ACCURATE SO THAT WE CAN REPORT YOU, THAT 6 THERE WAS AN ERROR N REPORT WRTNG. 7 8 CHARLOTTE WORD, + 9 CALLED AS A WTNESS HEREN, HAVNG BEEN PREVOUSLY ULY SWORN, 10 WAS EXAMNED AND TESTFED AS FOLLOWS: REDRECT EXAMNATON 13 BY MR. CARPENTER:" Q. GO AHEAD. THE COURT: THS REFERS TO TO THE DEFENSE MOTON AS ATTACHMENT ONE; MR. CARPENTER: YES., THE REPORT WHCH, rs ATTACHED S THAT C CT? 18 THE COURT: T'S A TWO-PAGE REPORT. T SAY "CELL'ARX 19 DAGNOSTCS" AT THE TOP, "JUNE 20TH, 1995." THE WTNESS: THAT'S CORRECT THE COURT: THS REPORT HAS AN ERROR N T; ~OT THE FLM?, THE WTNESS: THNK SO. 23 'M A LTTLE HYSTERCAL THNX 24 THE -- ACCORDNG TO OUR EVDENCE LOG SHEET. OUR S LE 02 WOULD 25 BE THE :KNOWN SAMPLE FOR MR. KOCAK. THE -- OUR S LX 03 S THE 26 :KNOWN SAMPLE FROM MSS FRANK. 27 AND N EXPLANNG THE GEL EARLER, T-- REALZED 28 THAT THE ANALYSS THAT WE HAD BEEN -- WE HAD DONE, WHCH SHOWS

5 1 2 THAT THE SAMPLE 03 S CONSSTENT WTH THE TYPES l:s CORRECT, BUT WHAT WE NCORRECTLY REPORTED S SAMPLE OlA, 03 WAS MR. 3 KOCAK'S SAMPLE. 4 ACCORDNG TO MY NOTES -- AND HOPE READl:NG 5 THEM RGHT, BUT CERTANLY WLL, N A CALMER STAT RECONFlU 6 THS S MR. KOCAK -- 'M SORRY S MSS, AND 02 7 S MR. KOCAK. 8 SO F YOU GO TO OUR REPORT PAGE 2, 9 DETECTED RESULTS CHART, THE TYPES ARE ALL CORREcT, 10 NAMES SHOULD BE SWTCHED. 11 AND THEN THE CONCLUSONS WOULD BE NC 12 THE DATA -- THE PRMARY DATA THAT WE HAVE OBTAl:NED 13 CONSl:STENT Wl:TH THE TYPES FROM MSS FRANK, AND WE MAKE NO 14 CONCLUSON REGARDNG THE FANT BANDS, WHCH MAY OR ~Y NOT 15 l:nclude MR. ltocak. HAVE NOT REVEWED T FROM 16 PERSPECTVE. 17 THE COURT: OKAY. 18 THE WTNESS: OUR REPORT WOULD BE, N TERMS!OF THl:S CASE, :, 19 F 'M ANALYZNG THS CORRECTLY, NCONCLUSVE N '' S OF ANY 20 SPERM DONOR, AND 'M EXTREMELY SORRY AND APOLOGZE TO THE COURT 21 FOR THl:S ERROR. 22 THE COURT: WELL, 'M NOT -- 'M NOT SURE - 'M NOT SURE 23 WHAT 'M SUPPOSED TO MAKE OF THS. 24 MR. CARPENTER, PERHAPS YOU CAN CLARF ARE WE 25 SUPPOSED TO NOW THROW OUT THE CELLMARK REPORT? 26 MR. CARPENTER: WELL, WHAT -- WHAT WE WOULD BE DONG S 27 NOT PRESENTNG THE CELLMARK RESULTS, BECAUSE THEY' 28 NONCONCLUSVE. ALL THAT THEY SHOW S THAT THE VC 1M'S DNA WAS

6 PRESENT N THE SAMPLE THAT THEY ANALYZED. AND SO THE CELLMARK RESULTS WERE OBTA ED THROUGH i THE sm SYSTEM. WOULD AT LEAST ASK THE COURT TO ONSXDER WHAT,DR. WORD HAS TESTFED REGARDNG THE PCR SYSTEM, l' USE WE WLL BE PRESENTNG THE RESULTS OBTANED BY THE SAN DEG POLCE DEPARTMENT LAB. THE COURT: OKAY. SO YOU'RE -- AT THS PO, YOU'RE TELLNG ME THAT THE PEOPLE DO NOT NTEND TO OFFER Cl!'UUAB:K'S RESULTS? 10 MR. CARPENTER: THE STR SYSTEM OBTANED BY STR SYSTEM 11 RESULTS OBTANED BY CELLMARK; THAT S CORRECT THE COURT: OKAY. AND THAT THE PEOPLE ST OFFER THE SAN DEGO POLCE DEPARTMENT'S MR. CARPENTER: THAT S CORRECT, AND WE!fA NTEND TO -PH RESULTS? 15 O'DONNELL SCHEDULED '1'0 TESTFY MONDAY WHEN WE RES 16 THE COURT: OKAY. AND SO DOES THS MEAN '1' XS THE 17 END OF DR. WORD'S TESTMONY, OR DO WE STLL WANT DO YOU STLL 18 WANT TO ASK MORE QUESTONS? 19 MR. CARPENTER: WELL, NO. WAS 20 REDRECT. THNK THAT HAD TALKED -- OR ASKED 21 REGARDNG PCR. AS WELL AS DATA BASES, AND THNK 22 EVDENCE OBVOUSLY S -- OR THAT TESTMONY THE COURT TO CONSDER ON THE ADMSSBLTY OF THE OBTANED BY THE SAN DEGO POLCE DEPARTMENT. COURT TO CONSDER T FROM THAT STANDPONT. RESULTS ASK THE 26 BUT F UNDERSTAND SOME OF THE DEFEN ES CORRECTLY, 27 THNK THAT THEY WERE MOST OBJECTON- -- OBJECTO,ABLE TO THE ;l8 sm RESULTS, BECAUSE THEY WERE SO NEW AND HAD NOT EEN

7 1 DlTRODUCED NTO COURT PREVOUSLY, AT LEAST N THS ATE. 2 3 THE COURT: OKAY. SO LET ME ASK, THEN, OF DO YOU WSH To ASK ANY ADDTONAL QUESTONS OF DR. D; ARAGON: YES. DEPENSE: RD? 5 THE COURT: OKAY. 6 7 RECROSS-EXAMNATON 8 BY MR. ARAGON:, + 9 Q. DR. WORD, YOU CAME TO THS DAY OR 10 YESTERDAY? 11 A. RGHT NOW N THS COURTROOM -- OR WAS 12 LOOKNG AT THE FLM, T OCCURRED TO ME, YES. 13 Q. AND S THS ESSENTALLY, THEN, THE F TME THAT 14 YOU'VE HAD A CllUlCE TO LOOK AT THS AREA AND DECD FOR YOURSELF 15 WHETHER SUCH AN ERROR WAS POSSBLE? 16 A. HAD REVEWED THE CASE FOLDER AND N 'es. HAD 17 NOT REVEWED THE LABELNG OF THE SAMPLES, SO F YO 'RE ASKNG ME 18 ABOUT THE ERROR JUST RECOGNZED, THS S THE PR T 'rhat 19 RECOGNZED T AND HAVE HAD A CHANCE TO LOOK AT T REVEW T. 20 HAD REVEWED ALL THE DATA, THE FLM HADN'T REVEWED THE ACTUAL LABELNG OF THE SAMPLES, AND. FOR 'rhat. 1: WAS N ERROR 23 Q. 00 YOU HAVE ANY OPNON AS TO WHERE ERROR 24 OCCURRED, AT WHAT PART OF THE PROCESSNG OF THE ON THS ERROR 25 MOST LKELY OCCURRED? 26 A. T CERTANLY LOOKS THAT THE ERROR WAS SMPLY N THE 27 LABELNG OF THE SAMPLES ON THE FNAL REPORT. 28 THE DOCUMENTATON THROUGH THE CASE HOW WE DO T

8 1 N EVERY CASE. SMPLY WHAT OCCURRED S THAT N THE SAMPLES ON TH:E: FNAL REPORT, THE DEFENDANT'S ER AND THE 3 VCTH'S mjmber GOT EXCHANGED, SUPERMPOSED AND, T 4 REPORT:E:D BACKWARDS. 5 Q. SO THAT ERROR OCCURRED N PREPARATON OR THS JUNE 6 20TH REPORT AT CELLMAR1C?. 7 A. THAT'S CORRECT. 8 THERE'S ANYTHNG WRONG WTH THE DATA OR THE SCENC. T'S 9 SMPLY N OUR FNAL REPORT, WE ERRED. 10 MR. ARAGON: YOUR HONOR, BEFORE LET MRS. RD CATCH HER 11 PLANE, COULD TALK TO MR. TAYLOR FOR JUST ONE M~rrE? 12 THE COURT: SURE (WHEREUPON, AN OFF-THE-RECORD DSCUSS N WAS HAD.) MR. ARAGON: YOUR HONOR, HAVE NO MORE QUE ONS. THE COURT: ALL RGHT. JUST HAVE A COUP OF 16 QUESTONS. 17 FRST OF ALL, MR. CARPENTER, DOES TH MEAN THAT 18 CELLMARX STLL GETS THER $1200 A DAY? 19 MR. CARPENTER: BELEVE SO. MEAN, SHE' PU'l' A 20 YEOMAN'S PERSON'S EFFORT NTO T, AND 21 THE COURT: WHAT DON'T -- DON'T MEAN TO BEAT A DEAD 22 HORSE, BUT NEED TO UNDERSTAND, ON PAGE 2 OF THE E REPORT, HOW THS WOULD BE CHANGED TO REFLECT WHAT ou BELEVE TO 24 BE THE ACCURATE DATA. WHAT WOULD YOU MARK OUT AND CHANGE? 25 THE WTNESS: ON THE TOP OF THE PAGE UNDER TYPES 26 DETECTED," UNDER "SAMPLE," WHERE T SAYS "A. FRANK '" THAT SHOULD 27 BE SCRATCHED OUT AND LABELED JOHN KOCAK, AND UNDER. "SAMPLE: 28 JOHN KOCAK," THAT SHOULD BE SCRATCHED OUT AND LAB ED A. F.R.iUX.

9 1 2 THE COURT: OKAY. AND THE WTNESS: AND THEN N THE MDDLE OF THE AGE UNDER 3 "GENOTYPES," THE NAMES WOULD ALSO BE CHANGED. 4 THE COURT: SO THE -- LNE ONE WHERE T SAY MA. FRANlC" 5 SHOULD READ KOCAK? 6 THE WTNESS: THAT'S CORRECT. 7 THE COURT: AND WHERE T SAYS "KOCAK," T S ULD SAY 8 FRANK? 9 THE WTNESS: THAT'S CORRECT AND THEN, CERTANLY, THE CONCLUSON S ALL -- ALL THE NAMES SHOULD ALSO BE CHANGED. FRANK S EXCLUDED AS THE SOURCE," THAT SHOULD SAY "A. KOCAK S 13 EXCLUDED AS THE SOURCE. WHERE T SAYS, "JOHN KO 14 EXCLUDED." T SHOULD BE -- T SHOULD SAY A. FRANK 0'1' BB 15 EXCLUDED. 16 AND THEN THE FREQUENCY CALCULATONS W ALL BE 17 FOR A. FRANlt, NOT FOR MR. KOCAK, AND THEN THE 18 CALCULATONS-- 19 THE COURT: SO DOWN THERE ON -- N THAT LAS SENTENCE 20 THAT STARTS "USNG LOC," NSTEAD OF JOHN KOCAK, SHOULD SAY 21 A. FRANK? 22 THE WTNESS: THAT' 5 CORRECT. 23 AND THEN THE CUMULATVE FREQUENCY CALlrur~TONS THAT 24 DD EARLER ARE JiAt,F RGHT AND HALF WRONG. THE AN DEGO 25 POLCE DEPARTMENT TYPES WOULD BE CORRECT FOR THE ENcE N MR. 26 ROCAll:. AND THOSE FREQUENCES WOULD STLL BE CORRE, BUT ALL OF 27 THE STR DATA WOULD BE NCORRECT FOR HS TYPES. 28 THE COURT: AND MY QUESTON S WHY DOES TH. NOT

10 1 EXONERATE MR. KOCAK? 2 THE WTNESS: BASCALLY, THE ONLY OBTANED 3 MATCHES THE VCTM. WE -- WE HAVE FANT 4. CERTANLY NOT BE WLLNG TO NTERPRET. THEY ARE P SBLY DUE TO 5 ARTFACT, AND WE HAVE NO GENETC NFORMATON FOR. 6 THAT WE CAN NTERPRET OTHER THAN S CASE, so 7 T'S AN NCONCLUSVE RESULT N TERMS OF WHO A POSS 8 SPERM DONOR. WAS N THS SAMPLE. WE HAVE NO DATA or NTElU'RET 9 REGARDNG THAT. 10 F WE HAD A SECOND SET OF DATA, NFO TON FROM 11 ANOTHER NDVDUAL THAT DD NOT MATCH THE VCTM THAT DD 12 NOT MATCH MR. J:OCAK, THEN THAT WOULD BE EVDENCE 13 PERSON BENG THERE, AND HE WOULD BE EXCLUDED AS DONOR. WE 14 DON'T HAVE THAT NFORMATON HERE. WE 15 NDVDUAL, AND T S CONSSTENT WTH 16 THE COURT: SO GUESS DON'T UNDERSTAND Y, ON SPERM 17 FRACTON, YOU'RE SAYNG THAT THAT S -- YOU BELEV S FROM MSS 18 FRANX. 19, THE WTNESS: THAT'S CORRECT. T'S SMPLY Y OVER OF :ZO THAT DNA FROM THE FRST FRACTON TO THE -- TO THE ERM 21 FRACTON. THAT CAN OCCUR. THE --. 2:Z AS SAD YESTERDAY, THE DEFNTON 0 NONSPERM AND 23 SPERM ARE WORKNG DEFNTONS OF THE ABLTY OF TH SE CELLS TO 24 BREAK OPEN. THEY ARE NOT 100 PERCENT DSCREET SEl' TONS OP 25 THOSE TWO CELL TYPES, SO BY SAYNG SPERM FRACTON, :Z6 MEAN THAT S DNA FROM SPERM AND ONLY SPERM. T'S 27 EXPECT TO SEE DNA FROM SPERM WHERE SPERM ARE PRES :Z8 THE COURT: OKAY. ANY FURTHER QUESTONS?

11 1. MR. CARPENTER; HAVE NONE. THANK YOU. 2 MR. ARAGON; NO, YOUR HONOR. 3 (WHEREUPON, THS CONCLUDES THS PART TRANSCRPT 4 OF PROCEEDNGS.)

12 1 STATE OF CALFORNA ) ) S8: 2 COUNTY OF SAN DEGO ) 3 4, ROBN K. 8UNKEES, C8R, CERTFCATE 8824, A 5 PRO TEM REPORTER OF THE: SUPEROR COURT 6 CALFORNA, N AND FOR THE COUNTY OF SAN DEGO, Y CERTFY 7 THAT REPORTED N SHORTHAND THE.PROCEEDNGS HAD B AND THAT THE FOREGONG TRANSCRPT, CONSSTNG OF 9 FROM 1 THROUGH 10, NCLUSVE, CONTANS A FULL, 10 TRANSCRPTON OF MY STENOGRAPHC NOTES OF SAD 11 DATED DECEMBER 5, 1995, AT san DEGO,~~.PORNA ROBN K. SUNKEES, CSR NO. 8824

13 ZENECA eel November 20, 1995 Ms'. Aiko Lawson, Criminalist San Diego Polic8 Department Forensic Science Section 1401 Broadway, M.S. 725 San Diego, CA Re: Your Case No Cellmark Case No. F EXHBTS: tems of evidence were received'for analysis on February Polymerase chain react:ion (PCR) testing was performed on listed below: PESCRPTON 2-A White material in envelope labelled A... n 1te1l\ 2, he items 2 sample 2-B White material in envelope labelled... tem 2 sample B. " One of two blood swatches in envelope labelle Kocak.. n...john One of two swabs in envelope labelled, AM. RESULTS: DNA was isolated from the items listed above. items was amplified using the PCR and typed for the sh repeat (STR) loci HUMCSFPO, HlJ'lTPOX, and HOMTHOl using SR Systems. The types detected for each sample are lis h of the t tandem neprint'd d below: A b\jt;"n, of A bl..,,~j.'less V ~ Spee"'(;n. ot2.~.~.

14 RepOrt for Cellmark Case No. November 20, 1995 Page Two. F TYPES petected Sample CSF1PO combined material cuttings (non-sperm fraction) 11* 8,1.2* 6,7 combined material cuttings <sperm fraction) ,12 6,7 Jolm Kocak 10 8,10 7 A 8,1.2.. n addition to the types listed above, results were obt were faint. These results may be due to the presence 0 more than one individual or to technical artifacts. 11 G.7 that frolll GENOTYPES Samples CSF1PO.1olm J(ocak 10,10 8,10,7 A. 11,1.1. 8,12,7 CONCLUSONS: A. camaot be excluded a. the source of the mra ob the colibided JUterial cutting John Kocak i. not the dodor of the DNA obuined fr_ th...terial cuttings. lowever ince the ODly typ_ obtain ClomhiDed _terial cutting. are codtlistent with the type frolll the swab labelled A., no further conclu.ion c CQDClerniDg the coilbided _terial cutting edf~ ca.bined fraa the obtained be _de Robin W. Cotton, Ph.D. Director of Laboratories D. *. The bold type indicate. cbadge...de in the A_d Laboratory ZX_ination. The accclpanying letter change. _de. leport of ain. the

15 Report for Case No. November 20, 1995 Page Three F cc, Mr. Michael G. Carpenter Deputy District Attorney County of San Diego 220 West Broadway San Diego, CA Mr. Raymond George Aragon Office of the Public Defendsr. County of San Diego 233 A Street Suite 400 San Diego, CA 92101

16 ZENECA CE DAGN STes November 20, 1995 Mr. Michael G. Carpenter Deputy District Attorney County of San Diego 220 West Broadway San Diego, CA RE: People of California v. John Kocak Your Case No. P56538!SCD Cellmark Case No. F Dear Mr. Carpenter: C.llmark!f/...,,mn Gold rod Lne Ge,manlow MD Telephone 1) USA LABS Fx (301) 4877 Please find attached an Amended R-'por~ of Laho~.tory ~tmination dated November 20, 1995 which is provided as a replaceme for the Report of Laboratory axaminatiod dated June 20, 1995 evious1y provided in the above-referenced case. As you will re all, Dr. Word discovered in court on Friday, November 17, 1995 that the names of the two known individuals tested in this ease,. Franke and John Kocak, had been reversed in the Repor~ of oratory Exiull1nati011 dated June 20, As a result of this ror, the stated conclusions were also not correct. These errors ve been corrected in the Amended aepor~ of Laboratory Bxamina OD dated November 20, Please note that there is no indication of any erro scientific procedures used or the data obtained in this error was simply at the level of reporting where a transp the names occurred. We have requested that the two kno be resubmitted for analysis to confirm the typing resul Please accept our sincerest apologies for this error. any inconvenience that this error may have caused. Respectfully yours, in the ase; the ition of samples Robin W. Cotton, Ph.D. Director of Laboratories cc: Mr. Raymond George Aragon Office of the Public Defender County of San Diego 233 A Street Suite 400 San Diego, CA Ene. Charlotte J. Wo d, Ph.D. Molecular Genet cist Ms. Aiko Lawson criminalist ' San Diego Polic Dept. Forensic Scienc, Section 1401 Broadway,.S. 725 San Diego, CA l)usine,s A, bu'flt*$ U Accredfted by the American Society 01 Crime l.boretory Directorlll.abondory Accredftation