SUPREME COURT OF THE STATE OF CALIFORNIA THE PEOPLE OF THE STATE OF CALIFORNIA,.) Plaintiff-Respondent~ Defendant-Appellant.

Transcription

1 I.. : I ~... t.. " : " : " SUPREME COURT OF THE STATE OF CALIFORNIA COPy I ~... : " -~... ''.'.'-.'.~} THE PEOPLE OF THE STATE OF CALIFORNIA.) va. lcevin COOPER Plaitiff-Respodet~ Defedat-Appellat ) ) ) ) ) ) ) ) ) CR APPEAL FROM THE SUPERIOR COURT OF SAN DIEGO COUNTY HONORABLE RICHARD C. GARNER JUDGE PRESIDING REPORTERS' TRANSCRIPT ON APPEAL " /~ :' :~ " ;.'.'!"- APPEARANCES: For Plaitiff-Respodet: For Defedat-Appellat: HON. JOHN K. VAN DE KAMP State Attorey Geeral Departmet of Justice 0 West -A- Street Suite 00 Sa Diego Califoria 0 IN PROPRIA PERSONA I-' L' I I - -: --J...j ~." :.... ~~.. VOLUME I f volumes. Pages 0 to~0 icl. JILL D. MC KIMMEY C.S.R. C- ad BRIAN V. RATEKIN C.S.R. C- Official Reporters -: a -: :. i ~..'.

2 j.~ SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN BERNARDINO.. THE PEOPLE OF THE STATE ) OF CALIFORNIA ) ) Plaitiff ) ) vs. ) NO. OCR-l ) KEVIN COOPER ) VOLUME ) Defedat. ) Pgs. 0 thru 0 icl. ) ')~~" 0 REPORTERS' DAILY TRANSCRIPT BEFORE HONORABLE RICHARD C. GARNER JUDGE (~. " 0 '- APPEARANCES: DEPARTMENT - ONTARIO CALIFORNIA Tuesday July 4 For the People: DENNIS KOTTMEIER District Attorey U DENNIS KOTTMEIER District Attorey By: JOHN P. KOCHIS Deputy District Attorey For the Defedat: DAVID McKENNA L - Public Defeder By: DAVID NEGUS Deputy Public Defeder Reported by: JILL D. McKIMMEY 0 Official Reporter C.S.R. No. :I ad BRIAN RATEKIN :I Official Reporter C.S.R. No. :J ~ CI.

3 --- I N'D EX ~ - ~~.- DEFENDANT'S WITNESS PAGE." THORNTON Joh Direct Examiatio by Mr. Negus Cross-Examiatio by Mr. Kochis t Cross-Examiatio Resumed by Mr. Kochis 0 t 44 0 ~ EXHiBITS FOR I.D. IN EVIDENCE ( Next i order - list 4 <... _ ( < ( ( C r u :I -- o - o... ~'.

4 Volume- Tue-sday July 4 SUBJECT INDEX THORNTON 0 - His re-co~~eded steps to process the Rye scee DIRECT by Hr. Negus compared to what steps 0 Occupatio ad backgroud "-ere take 0 - Cosultat work: umhe>r of homo- - His last experiece at crime. cide- cases worked o who re- sce-e-s as described taied him what states we-re His opiio of lack of docu ivolve-d metatio e-xamied: Number of multiple victim Schechter's otes cases Reaso for otig the time Nurber of times he qualified as of collectio a expert Crime- Ivestigatio: his Publicatios agreemet with his co- Oroaizatos atiowide e-dited chapter's guidelies - foresic bodies 0 - Preservig recostructio Stadards for crimialistics through photography ad lab work i literature documetatio 0 - His opiio o coformity of - Comparig this recommedcrime scee processig to atio to practice at recogized crimialistics crime scee stadards - Reasos time is importat: Defe-ct i supervisio comparig time documets - I uderstadig the process to his recomedatio to of collectig evidece practices at crime scee - I photography - Documetatio of Rye scee: - I documetatio its SUfficiecy what was - Collectio reviewed - - Recostructio - His opiio o additioal physical N-: which diagrams he looked at - evidece- that was't preserve-d - His retetio by the Defese~ Amout of time eeded to doig a recostructio adequately documet spatter examied 4 - evidece - The procedure the sheriffs His opiio o whether a reco- followed examied: what structio of scee is possible trascripts he- did't ~~ 4 - List of "".hat it would have told to determie if scee was CROSS by Hr. Kochis 44 - hat percetage of his time is proce-ssed properly Basis of his opiio o dele-- 4 spe-t doig what oates resposibilities Time- sped processig crime 00 The diagrarrmig examied sce-es i last year i re his stadards 4 Cotra Costa Couty Times he testified as expert i 00 His stadards compared to: which items should be colcourt lected st i processig His experiece i Cotra Costa opiio i relatio to the processig crime scees book Number of homicides with quadruple0 - Importace ad maer i victims examied packagig.. c C

5 !~ Volume Tuesday July 4 SUBJECT INDEX - Page 0 - Other cosideratios i processig a scee 0 - Idetity of assailat more importat tha recostructio? 0 - Deficiey i arrative: boiler plate examied 04 - H- repbrt of Hall compared to his recommedatios 0 -Divisio of resposibility: opiio o people doig the processig 040 H- methods of preservig splatter patters 04 - ifereces to be draw 04 Patters o Rye south wall r LJ.. - C.- C L

6 I 0 ONTARIO CALIFORNIA; TUESDAY JULY 4; : M. DEPARTMENT NO. HON. RICHARD C. GARNER JUDGE APPEARANCES: 4 The Defedat with his Cousel DAVID NEGUS Deputy Public Defeder of Sa Berardio Couty; JOHN P. KOCHIS Deputy District Attorey of Sa Berardio Couty represetig the People of the State of Califoria. (Jill D. McKimmey C.S.R. Official Reporter C- Bria Rateki C.S.R. Official Reporter C-) THE COURT: Mr. Kochis Mr. Negus ad Mr. Cooper are all preset. J 0 H N Call your witess. MR. NEGUS: Call Dr. Joh Thorto.! ~ Q ~!! Q! called as a witess by the defese was examied ad testified as follows: THE CLERK: You do solemly swear that the testimoy you are about to give i the matter ow pedig before this court shall be the truth the whole truth ad othig but the truth so help you God? THE WITNESS: I do. THE CLERK: Please be seated. State your ame please for the record ad spell ~ " U j t -j C C ~ I: o -

7 j I ' your last ame. THE WITNESS: My ame is Joh Thorto T-h-o-r--t-o-~ 0 DIRECT EXAMINATION BY MR. NEGUS; Dr. Thorto what is your occupatio? I am a professor of foresic sciece at the Uiversity of Califoria at.berkeley ad occasioally a cosultat i physical evidece matters. What is foresic sciece? Well foresic comes from a Lati word meaig of the forum. I aciet Rome the forum was where govermetal debates were held but it was also where trials were held; it was a courthouse; so foresic sciece has come to mea sciece that's exercised i the resolutio of matters at the iterface of law ad sciece. What are your duties at the Uiversity of Califoria? Teachig ad research. The program at Berkeley is a graduate program; so most of the istructio is at the gradua'te. level. I am also cocered with research i a wide rage of physical evidece categories ad I have some additioal admiistrative resposibilities as vice-chairma of the departmet. The departmet is called the Departmet of Biomedical ad Evirometal u :I L o o o o

8 I 0 Q. A Health Scieces. What does that have to do with foresic sciece? Well this is a departmet withi the School of Public 4 Health. Public health is cocered with the health of the public. Homicide is a leadig cause of death i America males age to. the School of Public Health. That's the itroit ito Ad the additioally 0 there was a crimiology departmet at Berkeley up util that was termiated for reasos urelated to the crimialistics or foresic sciece program ad our program.~s placed uder public health.~.. 0 Q. Q. Q. admiistratively. Showig y?u Exhibit M- is that a vitae of your backgroud ad traiig ad experiece? Yes it is. Ad was that prepared by yourself? Ad does that accurately -- does that accurately state your educatioal backgroud? 4 Q. Does it also accurately state your -- your work experiece i the field of crimialistics ad foresic sciece? A Q. You said that you worked as a cosultat i additio & to your work at the uiversity. What -- what work do ' u ~ C - ~ o.~. ~

9 0 4 you do as a cosultat? Well I cosult occasioally o physical evidece matters as a mechaism to esure professioal citizeship. If I were ot to do so I thik that a portio of my credibility as a educator would be eroded at least i the -- the eyes of the professio; so I egage i a limited amout of cosultig ot a extesive amout for that purpose. Approximately how may differet homicide cases have 0 you worked o? About "'""" Q. Ad how may of those were i the past year where you were ivolved as a cosultat? I the past year icludig this case I've bee ivolved i eight cases. Two of them have bee substatial cases. The other six have ot bee ~ u 0 4 Q. Q. complicated cases have ot bee ivolved from the stadpoit of a complexity of physical evidece. Were you retaied i these cases by the prosecutio or by the defese? TWo of them by the prosecutio the remaider by the defese. Have all those cases bee i Califoria or have they bee ivolved i other jurisdictios? Other jurisdictios as well as Califoria. -: C CI :J -' U Q. What other jurisdictios have you worked i?

10 .. I la -:-:-.. " I thik about te eight or te states. I -- well Alaska. Washigto Orego Califoria Nevada North Carolia Missouri Nebraska Texas Colorado. How may actual crime scees have you actually yourself processed? Approximately 0. I I'm ot sure of the exact umber. thik that's a reasoable approximatio. Ad of those how may of them were you actually i charge of the scee? Probably. Of those homicide cases that you have bee ivolved i have ay of them ivolved four or more victims? Yes a few ot may. Have you testified previously as a expert witess? Yes I SUre~ have. Could I clarify a previous respose? You asked me about homicide cases ad the umbers that I have give you would iclude cases that -- that were hadled as homicide cases but i retrospect were determied to be suspicious suicides death by misadveture but were processed iitially as -- as homicide so the umbers that I gave you would iclude those cases as well. Do you have ay estimate as to what percetage of the cases would be -- J L - J fj ~ l

11 A A small -- a small percetage certaily uder te percet ~ How may differet occasios have you qualified as a 4 expert witess? A Oh well hudreds. Icludig drug matters ad hadwritig comparisos total court appearaces would umber i the hudreds. Ad what -- i what differet jurisdictios the same f I ~."" ~~ oes that you metioed earlier? 0 A I have't appeared i -- i court i all of those jurisdictios that I metioed previously. I most of them yes. ~ lb ~ Have you ever failed to qualify as a expert witess? A No ~ Have you writte ay techical articles or -- or books? A u ~ 0 4 ~ Ad are they listed accurately as far as the title ad the place of publicatio the date of publicatio i Exhibit M-? A Yes except that the -- the list of articles is ot altogether curret. I believe there's aother eight or te articles that have appeared i prit sice --- sice I updated the resume the last time. The total umber ow I thik is slightly i excess of a hudred. J c: o ~ - ~ Ad of these publicatios have ay of these publi- catios dealt with the processig of crime scees?

12 4 0 {l. {l. Yes Have ay of them dealt with -- with the aalysis of blood spatter patters? Do you -- do you belog to various professioal orgaizatios? (NO omissios.) t u. :J L - ~ o :I -:. :I

13 I j A- 0- A A- 0 4 Ad o Exhibit M- are the professioal orgaizatios to which you belog as well as the offices that you held i those -- i those orgaizatios ad the awards that you received? Have you ever -- have you ever served o ay atiowide bodies dealig with -- with various aspects of foresic sciece? Ad what was the ature of that -- of that -- those particular bodies ad those particular activities you egaged i o them? Well there have -- there have bee several. A umber of years ago there was a project fuded by the U.s Justice Departmet the ~atioal Istitute of Justice -which was cocered with a atiowide crime laboratory """ ' ' proficiecy testig program. I was ivolved i the advisory committee for that project. There was agai a federally fuded veture which resulted i the compilatio of a umber of stadard techiques that are 'used i the crime laboratories~ operatioal crime laboratories ad I was cocered with with the project directio of that project. _._... Ad there was a -- aother federally -- federally fuded project agai fuded by the Natioal Istitute _---- of Justic::~ which was cocered with serology workshops i ".".- ".'.'::' u :I L - :I o - u

14 I ad with workshops i the u~of the microscope the polarizig microscope for trace evidece aalysis. -Ad I was cocered with the -- with the project directio i that project. Q. So -- so basically the kid of work that you were doig was ivolved i crimialists?.. i essetially quality cotrol for. '- Q. A~e there recogized stadards i the field of crimial -- 0 crimialistics as to how crime scee processig ad crimialistic type work should be doe? I-pelieve so yes. Q. Ad are those stadards embodied i a sort of professioal literature? MR. KOCHIS: Your Hoor I'm goig to object. It's compoud. "Stadards for processig" I assume might ot be the same as "crimialistics" because crimialistics is such a wide field. THE COURT: All right. Break it dow Mr. Negus. 0 Q. (BY MR. NEGUS:) Are there stadards for crime scee processig recogized i the literature? Q. Ad are those stadards for laboratory work i crimialistics 4 recogized i the literature? I thik that with respect to laboratory work that the stadards are -- are more diffused less clearly u o :J - ~

15 I j euciated i the literature tha they are with respect to crime scee processig. stadards. But clearly there are 4 Q. Q. 0 Q. Q. 0 A- Q. A- 4 Q. Ad is the literature that exists is that literature that is writte by people outside the law eforcemet commuity sort of eforcig stadards from -- from outside or -- Is your questio with respect to crime scee processig? Almost all of the -- the works that are available that discuss protocols for crime scee processig have bee writte by law eforcemet officers people withi the law eforcemet commuity. Showig you various exhibits that have bee marked i this hearig H-l are you familiar with that publicatio? Ad is that a -- does that have to do with the collectio of -- of -- of evidece at a crime scee? Is that a recogized work i the field? I believe so. It"s certaily a very prevalet documet. rim sure most ivestigative agecies have it or have access to it. Showig you documet H-l a portio of a -- of a book by Svesso ad Wedel is that also a recogized book ' u :J. J L.-. :I. o

16 I ~ i the field of crime scee processig? -- This is the third editio which has bee revised by Mr. Fisher i Los Ageles. The -- this alog with previous additios is a stadard textbook o crime scee ivestigatio. Ad is Mr. Fisher a perso who's ivolved i practicig i law eforcemet o a daily basis? He's chief crimialist of the Los Ageles Couty Sheriff'f Sheriff's by Fox ad Cuigham is that likewise recogized i the field as a -- as a maual o -- o crime scee processig? Yes it is. It's a documet that has bee dissemiated widely ad I presume used extesively. Ad showig you ~wo documets H- ad H- which appear to be chapters from a book that was edited by yourself ca you -- what -- what is -- what was the purpose of that particular book? Well the -- oe of the Q~g_ames i foresic sciece i -- i the 0th Cetury at least i this particular Office....--_._- Showig you Exhibit H- a portio of aother documet _.-_.-. -._ _ _-_._ solar system was that of Paul Kirk. Kirk was a professor of crimialistics at Berkeley who died i 0 leavig a ufiished draft of a secod editio of his 4 textbook. Ad o his death I revised the -- the text which appeared as a posthumous secod - I i i u :I L - J o ~ /~

17 ~~~ ; j f " 0-4 S 0- editio. Ad is that likewise widely recogized i the field ad used? Yes; I believe so. ~ Fiallylet me show you a documet that's bee marked as Exhibit M-. documet? Did you prepare that particular 0-0 /~'\ 0- f.:"~"'''''.. ' Ad for what purpose was that prepared? Actually it was a portio of a commercial veture to sell a compedium of stadard ivestigative guidelie forms to police agecies. What relatioship does that documet have with the -- with the stadards i the field as far as crime scee processig -- processig that you have described? Well most ivestigative agecies have forms for ivestigatio: forms for drawig i damage to vehicles forms for idicatig positio of automobiles i traffic collisios forms for homicide ivestigatios burglaries arso autopsy diagrams ad the like. I collected as may of those forms as I could worldwide ad edited them to coform to my perceptios of what is desirable i crime scee ivestigatios probably icluded some of my ow euroses ad drew up the set of however may pages. So the purpose of that would to be act as a guidelie u :I t. - J o :J o o ~

18 I for crime scee ivestigatios or a remider to them as to how to go about processig a scee? What I had i mid was that this would represet 4 the so called boiler plate the -- the features of the scees that should be recorded or at least cosidered or some thought should be give to various aspects of scee ivestigatio. 0. Do you have a opiio as to whether or ot the processi~ i" f L of the crime scee at 4 Eglish Road i the Chio 0 Hills i the moths of Jue of coform to these atioal -- these stadards that you euciated? I my opiio they do ot -- MR. KOCHIS: Well Your Hoor I move to strike as o-resposive. It was a "yes" or "o." Ad I would be objectig to o foudatio whe the ultimate questio is asked. THE COURT: stricke. (BY MR. NEGUS:) Sustaied o both couts. Do you have a opiio May be I'm just 0 goig to ask him "yes" or "o" if he has a opiio. I do't thik that requires ay foudatio. THE COURT: So far I do't believe he has idicated a foudatio that is that he studied that particular crime scee. MR. NEGUS: Well I just -- I'm goig to get to that. THE COURT: All right. The I'll reverse the order. u u :I L - ~ ~ :I

19 .. -'" Go ahead. 0 j I I ~ (BY MR. NEGUS:) Do you have a opiio as to whether f or ot the processig of the Rye crime scee coforms 4 to recogized stadards i the field of crimialistics? ~ I have a opiio. ~ Ad what materials have you used to form that particular opiio? ~ May I refer to my otes? 0. Sure. 0 Copies of which Mr. Kochis Has. ~ I addressig this particular issue I examied the ~ 0 4 photographs that were take of the Rye residece the iitial scee reports the laboratory reports the iitial reports ad subsequet reports ad the trascripts of testimoy give at the Prelimiary Hearig ad of what I uderstad to be Hitch motio proceedigs. Do you wat me to -- to idicate whose testimoy I took ito cosideratio? (No omissios.) l.l... ~

20 I - '. Q Q. Yes if you would please. At the prelimiary hearig the testimoy of William Hughes Patricia Schechter David Stockwell Craig Ogio Da Gregois Bill Baird Irvig Root David Bellomy A Puter Rick Roper Hector O'Campo Rodey Hoops Robert Hall Stephe Mora James Hill Harvey Walker Gale Duffy Gary Woods ad Timothy Wilso. Ad at the Hitch motio proceedigs the testimoy of Toy Loghetti Bill Baird Patricia Schechter David Stockwell Gale Duffy Rick Roper David Bellomy ad Craig Ogio. Now certai of that testimoy did ot bear to the -- to the examiatio of the Rye household rather tha -- rather was relevat to the Lease household but I read it for purposes of backgroud. I the field of crimialistics are trascripts of the -- of the testimoy of people who process the scee laboratory reports police reports ad photographs the kid of materials o which crimialists base opiios as to the processig of crime scees? Yes I believe so. For a review of -- of a case those materials are somewhere betwee useful ad essetial. What is your opiio as to whether or ot the processig of the Rye crime scee at 4 Eglish Road met those -- met those recogized stadards? u u :J l. - a u "

21 I.. - MR. KOCHIS; I would object o foudatio as to " his expertise i this area. THE COURT: Overruled. THE WITNESS: I my view the scee processig the Rye scee does ot does ot meet geerally accepted stadards of police practice. I cosider it to be defective to oe extet or aother i the areas of supervisio crime scee photography documetatio of the crime scee collectio ad preservatio of the '0 evidece at the crime scee ad a failure to address the issue of a crime scee recostructio. BY MR. NEGUS: With respect to supervisio what -- what do you mea by supervisio? A I ay crime scee ivestigatio there are commad decisios that are made to carry out ei~er admiistrative details scietific details or details which are really related to uique legal situatios thigs such as ubroke chai of evidece the adequacy of photographs to depict the scee accurately. 0 Whe I use the term supervisio" I'm referrig to the commad decisios that implemet those -- those areas Q. How was -- with respect to supervisio how was the 4 ivestigatio of the crime scee at 4 Eglish Road defective? I thik oe of my major criticisms is the divisio of " U ~ C - o LI "

22 - f. resposibility at the crime scee where there were teams with differet resposibilities attedat to their ow particular precict; ad without ay real cocept of what was takig place by other teams I feel that this ot oly dilutes the resposibility for the crime scee processig i that oe perso will feel that -- that some aspect of the processig is -- is ot his or her job ad will defer to aother ~L~'... team but i additio to that I thik that it diverts 0 the attetio of the ivestigator to a overall comprehesive image of the scee as it exists I what respect was the photography of the scee i this ivestigatio defective? Actually your previous questio i coectio with supervisio I -- there were other elemets which -- which wet ito my thikig. u 0 Q. Excuse me. Would you -- could you list the other elemets. Well access to the -- the scee was ot adequately cotrolled. Certaily it was ot adequately documeted. :I L. o 4 I my experiece most ivestigative agecies have forms for that purpose to log i the -- the ivestigative persoel that were were preset. I my view the so-called boiler plate the stadard iformatio that is ordiarily oted at ay crime u " :I ~ scee homicide burglary or whatever was ot oted

23 stadpoit of the -- from the quality of the image I have o quarrel with them. But from the stadpoit of.. Q a comprehesive ad systematic approach to the scee I feel that they are deficiet With respect to this process of pickig the evidece up the collectio of it ad preservig of it were there ay defects i this particular ivestigatio? I thik there was a emphasis i the mids of the ivestigators o preservatio ad collectio per se as if somehow this was the -- this was the ed result ad their ultimate resposibility. Ad that's a -- a otio that -- that I do't subscribe to. There is aother criticism I would have relative to collectio ad preservatio that i the testimoy of the ivestigators I've frequetly see the phrase "Well we could't ru all of the bloodstais at the scee. It would have bee impossible just was't feasible." Ad -- ad I agree. But I thik that there -- there could have bee or should have bee a middle groud where additioal stais were -- were take. Ad I thik that our kowledge of the circumstaces at the scee would at this poit be much more complete had additioal stais bee collected. I lieu of takig every stai a decisio was made to take stais o more or less a radom basis. But the radom basis was radom with respect to the geography of! r;i;.:~ u.: :t

24 =... j.. ~: ~ j -4 4 thigs such as time of arrival time of quittig the scee positio of drapes lightig presece of a S aimals at the scee.; i other words the -- the stadard iformatio that -- that ordiarily should be collected i coectio with ay ivestigatio was -- was ot adequately documeted. Was there also -- was there also ay ay defects with respect to the -- to the timig with which the scee was processed that is the way that the work proceeded? Well I have difficulty i actually -- ot oly i recostructig the crime. I have difficulty i recostructig the maer i which the processig took place. There were -- there were i my view some lurches some uaccouted-for periods of time i the collectio of the evidece that would suggest to me that the processig did ot flow i a -- i a systematic maer There's oe period of time of approximately two hours aother period of time of approximately two ad a half hours i the collectio of -- of physical evidece that i the materials that I have reviewed I am uable to accout for the activities of the ivestigator durig those periods of time. The -- these particular criticisms as far as crime scee supervisio are these your ow persoal opiios u I - -. a -:. I-' U U

25 j ~. - or is this somethig which is reflected i the literature? Well both both. The stadard textbooks o crime 4 scee processig outlie protocols that ca be used or should be used i approachig ay crime. I ay crime there's ievitably to be some divergece from those stadard protocols. That's just a extesio of commo sese but may of the factors of crime scee processig that are advocated by -- by stadards 0 were ot followed i this istace. ~ I processig a crime scee is that just somethig you do rote by checklist or does there eed to be ~ some sort of uderstadig of what's goig o? l~ell I thik that -- that i a ideal world there would be a uderstadig a uderstadig of the fuctio of processig a crime scee but this is't a ideal world ad so i lieu of -- of a full uder- u I stadig which is ot i my view a lurid fatasy it's somethig that ca be achieved but i lieu of ~I that the a checklist is the ext best thig. (No omissios.) - - o f- I-' U f-

26 ~ 4-0- Did there appear to be ay evidece o of -- of a uderstadig of the -- of the process of collectig physical evidece i this particular ivestigatio? 4 A- No. I -- I thik that there's evidece of a failure S to uderstad the -- the ature of -- of processig the crime scee. Could I explai what I 0- A- -- what I have i mid? Q. What you meat. 0 A- Ultimately we're ot as iterested i the physical evidece the tagible physical evidece as much as we're iterested i the physical evidece tellig a ~ story as to what happeed at the time that the crime occurred. Collectig ad preservig physical evidece is certaily ecessary. But i my view it's -- it's a step removed from \olhat -- from our fudametal iterest u of usig the physical evidece to to idicate the factual circumstaces at the time that the crime occurred. I my view the emphasis i this scee was i the collectio ad preservatio of the physical evidece per sea The emphasis was "Let's collect it let's pick it up let's package it ad let's remove it from the -- the scee." Ad i -- i my view that's -- that's ot etirely adequate. Why ot? J I- J I- u " - o - A- Well to some extet it's like a -- a -- a dog that /~

27 Ji.. ~ ~.. ; takes a boe ad -- ad buries it ad the forgets about it. I this istace substatial items of physical evidece were secured put i a property room ad for all practical purposes forgotte util the -- the value of the physical evidece o those items was either destroyed or miimized. Turig agai to the -- to the issue of photography i what way was the photography of the scee i this case defective? Well stadard procedure for crime scee photography is to start with geeral views of the scee ad work dow to icreasigly specific items of evidece. My review I: 0 4 of the photographs of the scee idicated that there was ot ecessarily a logical sequece from -- from the geeral to specific. Ad my commets are -- are based pricipally o the iterior photographs of -- of the scee. There were o closeups of the -- the bloodstais showig the distributio of blood ad the spatter patters. Certai of the photographs which were iteded to represet closeups photographs of the bloodstais were ot take with a scale i place which is essetial for a iterpretatio of the distributio of blood ad recostructio of -- of the crime scee based upo a u :I L - o u " blood spatter aalysis. Certai areas that I cosider to be critical such

28 I as the ceilig over the -- the bed i the southeast bedroom were ot photographed. Ad certai items of 4 Q. A- 0 evidece were moved ad re-photographed. Ad lastly there was ot a -- a photo log maitaiec of the photographs that were take. What differece would that have made? A photo log is a -- is a stadard practice i police photography to esure photographs are -- are ot lost to documet the ecessary photographic iformatio cocerig form ad distace. There's -- there's oe other criticism I would have t. ~ r I ~. ;~ -- Q. A- 0 4 the of photography ad that is that for a iterpretatio of blood spatter aalysis a perpedicular photograph would be idispesable. Ad care was ot take i the photography i this case to take the photographs perpedicular. With respect to docq~etatio of the scee how was this particular ivestigatio defective? Well i my view it was defective from the stadpoit of ot -- there ot beig a comprehesive scee report a arrative. That -- that may be my ow persoal view though. It's -- that's ot my most severe criticism of the -- of the case. But I thik that i a case of the sort or really a case of ay sort that good police practice would call for a -- a scee report that said somethig beyod wi wet to the scee ad here are the ' u :I I -fo u o o

29 J thigs that I collected." I thik that a scee report should attempt a verbal descriptio of the -- of the scee if for o other reaso tha to prompt the 4 ivestigator to cosider the iterrelatioship of items of -- of evidece. Ad agai that ties i to perceptio of -- of whether the fuctio is to iterpret the scee or simply to collect evidece. 0- So rather tha just list the measuremets ad -- ad umber i a list of items that were perceived what 0 you're sayig is that there should be some attempt to describe their sigificace? /-" I -- I do't kow that it's ecessary to describe the sigificace. But I thik-that it's ecessary to ackowledge the the presece of the items of evidece ad to documet ot oly aspects of the scee but to documet the activities of the ivestigator. To~ i ' :;I.'...' ~ u 0- other words to leave clear tracks as to what was doe by the ivestigator. Are there ay other -- ay other lacks as far -- or :I L. o 0 defects as far as the documetatio'is cocered? 4 Well yes. What I referred to previously there are aspects of the scee that I feel should have bee documeted that were ot the -- the so called boiler plate iformatio: positio of lights positio of drapes aimals at the scee positio of doors ad so o. u " o ~ '-- There were large periods of time where the ivestigatcr r ~

30 '" ~.~ ~ I 0 to my uderstadig the ivestigator testified that she was observig the scee for exteded periods of time. But it's ot clear that what she was observig 4 was recorded i ay maer. There's o documetatio that's bee made available to me to -- to suggest what it was that she was observig. The time of collectio of items of evidece is blotchy i a umber of istaces. There's times of 0 collectio of certai items of evidece that was ad the times were ot recorded for other items of evidece. I my view that does violece to stadard ~. 0 4 police practice i collectio of physical evidece. There's frequetly -- it's -- it's ot clear from the materials that I have reviewed as to who discovered the evidece. Who collected the evidece is documeted. But frequetly the testimoy is "I did't discover it. I just picked it up." Ad I thik that that's a gap i the iformatio that should have bee documeted the perso that discovered it i the evet that the positio of that item of evidece relative to some other item of evidece could be determied retrospectively. Ad agai that ties i to perceptio of fuctio of the ivestigator at the scee. Ad the last thig ud~r documetatio is I do't thik that the photographs that were take were particularly good crime scee photographs. From the u ~ L. o ~ U " /.. ~

31 4 the scee rather tha radom with respect to ay activity that may have take place which agai I thik is a fudametal cocer. The samplig that was doe i my view is somewhat whimsical. Samples were take of the blood uder the victims which i my view is probably the the least 0 ~ 0 4 importat aspect of the bloodstai samplig at the scee. Ad yet bloodstais were ot take from other areas of the scee that I thik would have bee productive of meaigful iformatio such as to the east side of the bed. I additio i -- i collectio ad preservatio there -- i my -- i my opiio there's almost certaily some trace evidece o the carpet which -- which I thik should have bee collected. Now I -- I recogize fully the carpet has bee vacuumed i the property loft. But there's still -- there's still useful physical evidece at this time. For example there's some boe chips that adhered to the carpet i blood that might be correlated with a victim to idicate the positio of the victim at the time that chop wouds were iflicted o the victim. (No omissios.) That material has ot bee collected yet. u c o :I ~

32 ~\ - ~ Is there aythig that -- that's occurred to that which as far as positioig of the victims might.. lesse its usefuless? A Well yes. There's -- eve though the carpet has bee vacuumed there's still a great deal of -- of physical evidece trace evidece preset. That which has bee immobilized by virtue of its beig glued by blood the positio of that evidece ca be 0 determied with some certaity but the carpet's bee rolled up ad the chaces of -- of some physical evidece movig from oe locatio o the carpet to ~ Sa 0 " aother is -- is cosiderable. ~ With respect to crime scee recostructio itself how was the ivestigatio defective? My pricipal quarrel with -- with that aspect of the ivestigatio is with respect to the blood spatter iterpretatio i my -- i my view this scee although certaily macabre is ot as complex a case as it may have bee perceived as by the -- by the ivestigators. The blood spatter evidece is complicated but i my view it s ot -- it would ot be impossible to have sorted out the various distributios of the blood the positioig of the -- of the victims ad of the assailats or assailat had that bee -- had the blood spatter evidece bee properly documeted at the time of the iitial ivestigatio. u 4 :l L - o ~ J

33 I j ~ ~ Q. 0 4 Aother criticism I have with respect to recostructio is that although there's testimoy that a recostructio was cosidered at the time of the iitial ivestigatio the items of -- certai large items of evidece were removed ad take to the property loft but at that poit they were ot the subsequetly aalyzed or iterpreted from the stadpoit of a crime scee recostructio util a period of time had elapsed where the value of -- of the blood evidece o those items had dimiished. There were blood distributios that I thik are would have bee critical to a proper iterpretatio of the scee the most sigificat of which I thik would have bee the -- the blood o the ceilig because that would have allowed us i my opiio to have determied the hadedess of the assailat. By that you mea whether the perso was left-haded or right-haded? Yes There was blood o the edge of the bathroom door which -- ad I am uable to determie the probable origi of that blood. This is the bathroom door that was struck by a pillow; ad o the edge the lock-plate edge of the door there's blood that hit the door at right agles perpedicular ad fairly high up. Now the crime scee photographs show the door ope ' u :f «: o '-~ U ~

34 &----~ ; j ~ ~' 0 4 ad so the explaatio for the blood i -- o the edge of the door is that the blood origiated from iside the bathroom. That just does't make ay sese relative to other aspects of the case ad i my mid that's a big questio mark. I do't kow at this poit that it would have bee -- I do't kow that at this poit we ca resolve the issue of how that blood got there. At the time of the iitial ivestigatio possibly a aswer would have bee forthcomig. All thigs cosidered at this poit with the scee dismatled I'm ucertai eve as to how to proceed o that -- o that particular issue. There was -- i my mid there was trace evidece o the floor ad there were additioal bloodstais o the floor which I thik would have bee useful i a crime scee recostructio ad as a example of this there -- there are stais to the east of the bed that I thik might have bee useful i determiig the positio or the activities of Peggy Rye prior to -- prior to death ad prior to the positio i which she was foud. The -- there are some blood spatters which would be very useful for determiig origi ad determiig the trajectory o the iroig board ad those stais were ot typed; so although the iroig board might be positioed retrospectively at this poit i -- i a mock-up of the -- of the scee ' u ~.... ":"... :I L. J ~

35 I -4 we do't have the iformatio as to whose blood type it was. I thik that that would have bee aother factor that would have bee useful i a iterpretat io of -- of the sequece of evets at the scee~ 0 Q. Q. Q. 0 4 b The same thig holds true of the typewriter. There's some stais o the typewriter that I feel would have bee useful i idicatig the positio of the victim ad also the assailat or assailats Those are the major poits. Do you have a opiio based -- by the way you have i additio to reviewig documets you have also yesterday looked at some of the larger items of physical evidece at the loft ad i the crime lab; is that correct? I the lof~ yes. Did you also look at some evidece i the crime lab? No. picked up evidece i the crime lab but I did't examie it there. Do you have a opiio based upo what you've see at the loft ad as well as -- as -- as your -- the studyig of the documets ad photographs that you've studied as to whether there's a likelihood that there was additioal physical evidece at the scee which was ot collected or preserved? I'm certai that there was additioal physical evidece that was ot collected or preserved. " u :I c: t: o

36 -.. ~ What kid of evidece -- what kid of iformatio could have bee derived from this evidece had it bee properly collected ad preserved? MR. KOCHIS: Well I am goig to object~ That would call for speculatio ad I thik it's a little vague i its preset form. THE COURT: It's part of his expertise opiio. 0 ~ 0 4 Overruled. THE WITNESS; I thik that if greater care had bee take to the distributio of blood at the scee with the positio of other trace evidece o the carpet factored ito the iterpretatio I thik that the scee had the potetial of determiig the positio of the victims ot oly i the termial positio which of course is recorded by the crime scee photography but itermediate positios prior to death. Ad a example of that is that i my view there's some idicatio that Peggy Kelly (sic) had bee proe face dow through a iterpretatio of bloodstais o the carpet. Whether this ca be determied with ay exactitude at this poit I'm skeptical I thik the evidece may well have determied the positio of the assailat or assailats. A example of that is i the bedroom there's a file cabiet. There are some spatters of blood o the file cabiet but it's curiously devoid of a exteded distributio of blood which would idicate to me that ""....:""'..~.~. U U -: ā - -

37 j /" - perhaps the assailat had bee stadig i frot of the file cabiet at some period i this time cotiuum ad had therefore itercepted the distributio of blood 4 o that item. I thik the umber of assailats might have bee determied the sequece of activities I thik the hadedess whether the assailat was lefthaded or right-haded might have bee determied o the distributio to the south wall ad o the ceilig. I'm less saguie as to the probability of determiig hadedess o other distributios towards the ceter of the room ad the bloodstai that has bee desigated or was desigated at the origial crime scee ivestigatio as A-4 I thik that -- that a more systematic ivestigatio might have shed some additioal iformatio cocerig that blood i that it strikes me as somethig of a o sequitur relative to the sequece of evets that took place to have a isolated droplet of blood that far removed from the remaider of the activity which I take it to be the southeast bedroom. (NO omissios.) r~;;:~~t': '" U. a.:. o ~

38 ~. - Q. ~ Q. 0 (BY MR. NEGUS:) Referrig to the -- to blood spatter evidece just -- just that i this particular ivestigatio was it feasible -- would it have bee feasible to attempt a recostructio based i part o that physical evidece? I thik that -- I thik that we would kow a great deal more ow had that bee attempted at the -- back i Jue of '. You idicated earlier that -- that -- that there may have bee a misperceptio as to how complex this particular f f I 0 4 Q. scee was. Was this for example oe of the more complex scees that you have bee ivolved i? No. Well I have bee ivolved i -- i certaily more complex scees. The blood distributio o the south wall was probably the most saliet aspect of the -- of the physical evidece other tha the multiplicity of -- of victims. Ad I -- I ca uderstad how a ivestigator would -- would be perplexed by that distributio o the south wall. But a systematic ad detailed aalysis of that distributio does reveal some -- some patters that ca be iterpreted as to their origi. I thik had that bee doe that our kowledge of the factual circumstaces would be much more complete. How log would it have take to i your experiece to -- to adequately documet the blood splatter evidece i this particular case? u u :t L o f : j :J ~"

39 j 40 " S 0 S Q. 0 " S Well I thik a quick ad dirty job could have bee doe uder a hour. Ad by "a quick ad dirty job- I mea if someoe had take a millimeter camera ad had put a -- a scale i place i the major areas of blood distributio ad had take a -- a roll or two of closeup photographs. Somethig that I thik would be superior to a -- a quick ad dirty job would have bee the same photographs take but with a -- with documetatio either i form of a tape recordig or -- or writte documetatio of what -- what it was that was beig photographed i the locatio with the -- with the essetial measuremets to fixed locatios. I thik that could have bee doe by addig several more hours certaily uder half a day. perhaps cosiderably less. Is that Perhaps-- is that a whole buch of people workig or just -- or just oe perso? Well that's -- that's oe perso. I thik if -- if aother perso were takig otes adequate documetatio of virtually all of the blood at the scee could have bee achieved i THE COURT: Why do't you break it Mr. Negus. Let's take the morig recess. MR. NEGUS: Ca we just fiish that oe aswer? THE COURT: I thought you had. I'm sorry. I I e -c r tj /~ '

40 I 4 THE WITNESS: A couple of hours two hours. THE COURT: All right. Thak you. All right. You may step dow. Take about 4 miutes../"""' A- 0 4 (Recess. ) THE COURT: Go ahead Mr. Negus. (BY MR. NEGUS:) Dr. Thorto I believe earlier today you i oe poit i time said "Peggy Kelly" as oe of the ames of oe of the victims. Is that what you meat? No. Peggy Kelly is a graduate studet. I meat Peggy Rye. MR. KOCHIS: Freudia slip. (BY MR. NEGUS:) Do you have a opiio as to whether a recostructio of the crime is preset -- possible at the preset time? Not i all respects o. My opiio is that it is ot possible i all respects. What do you mea by that? Well I thik that the scee could be recostructed -- a facsimile of the scee could be physically costructed with the carpet i place the various items of furiture i place ad some sese made out of the distributio of blood o areas of the scee typewriter file cabiet iroig board dressers ad so o. However a iterpretatio of the origi of the blood that was throw o those items would ot be at this -- at this poit :I L. o :I L

41 I s /.r--" also deliver the -- the ame of the victim from whom the blood was shed because of the problems i typig of the blood at this time. Additioally there are some aspects of the scee which are o loger availableof the blood o the wall the east wall the slidig glass door so o. What more could have bee told from the physical evidece had that recostructio bee possible? Well I thik I've -- I thik I covered that. I thik the iformatio that a crime scee recostructio could have -- have provided would idicate the positio of the victims assailat or assailats umber of assailat~ the hadedess of assailat provide a -- a fuller picture of the factual circumstaces at the time the crime occurred. Is that sort of a miimum that -- that could be expected if there had bee better preservatio? Now that's -- that's ot to say that the equivalet reliace could be placed o those -- those elemets. o all elemets all of It's likely that there would be more ucertaity as to the positio of of the victims tha for example the hadedess of the assailat. Ad it is possible uder certai circumstaces to eve get more iformatio tha that; is that correct? I t'l!'~~ t'z!.~~... u I :J L - a

42 j 4 MR. KOCHIS: Well I would object as ot beig relevat uless we're talkig about this scee. THE COURT: No. 4 MR. NEGUS: I'm perfectly willig to rephrase the questio to make it certai (BY MR. NEGUS:) You do't kow what evidece would have bee obtaied had a more thorough job bee -- better job bee doe; is that correct? That's right. 0 Q. So basically what your testimoy has to do with is what you ca say we would have kow without your egagig i ay speculatio as to what might have bee foud; is that basically correct? That's right. I -- I ca't speculate as to the ature of evidece that was't collected. 0. So just based o what you do kow about the scee is what -- is basically what you're basig your opiio o at the preset time that is -- Oh yes yes that's correct Ad obviously if there had bee other evidece which might have led to idetity the we could have kow much more -- MR. KOCHIS: Objectio. That calls for speculatio. 4 He's already testified he did't speculate as to what may ot have bee there. THE COURT: I thik that's a good objectio. 'I l I (..

43 j J 44 Sustaied. MR. NEGUS: Well I'll leave it the way it is... I have othig further. THE COURT: Mr. Kochis CROSS EXAMINATION BY MR. KOCHIS: 0- Dr. Thorto you're essetially a teacher at this period i time? 0 A- Well I thik my resposibilities are split pricipally betwee teachig ad research. I 0- How much of your time -- I'm sorry. I do't -- A- Q. I actually sped more time i research i terms of hours tha I do i -- i teachig. What percetage of your time do you sped with your admiistrative resposibilities?.. u 0.. A- Probably 0 percet or less. But that -- that's that has varied somewhat. I was actig chairma for a umber of moths last year ad that took full-time resposibilities. But i my preset positio as vice chairma approximately -- approximately 0 percet of my uiversity activities are admiistrative. (No omissios.) :t c: f a Lf '- ~~

44 lj!c.----:" -~ I How much of your time do you sped teachig r percetagewise? Probably about 0 percet. MR. NEGUS; Could I iterpose move to strike ad iterpose a objectio? I thik the questio is vague as to whether Mr. Kochis is talkig about time spet at the uiversity or time spet total time i his life~ THE COURT: Details. Overruled. Q. BY MR. KOCHIS: At the preset time say withi this 0 school-year what percetage of your time the do you sped doig research MR. NEGUS: Objectio agai the vagueess. That's got to do -- is he talkig about withi a 4-hour day or about the time spet at the uiversity? That would vary the aswer I believe. THE COURT: The witess did't have ay trouble u aswerig the last similar questio. Overruled. MR. NEGUS: I would like to clarify the two assumptios. :I L. o 0 THE COURT: Let the witess clarify. Overruled. 4 You may aswer if you ca sir. THE WITNESS: The remaider of my uiversity time would be spet o -- o research. Q. BY MR. KOCHIS; How much of your time have you spet this year this school-year processig crime scees? :I. L " ;- I terms of hours or percetage? I terms of percetage

45 ~. - 4 it would be rather small~ ~ Well withi the last year how may crime scees have you goe to to process that crime scee? 4 Oe p ~ Was that a homicide? ~ Ad do you recall the ame of that case? People versus Skoggis S-k-o-g-g-i--s. Its a Burmigham Alabama case. 0 ~ Whe you got there was the victim still at the scee? No. ~ How much time had passed betwee the time the crime!~ Q. took place ad the time that you got to the scee? I believe it was two years. Is it fair to say that this year you have ot egaged i ay o-the-scee crime processig? By that I mea u 0 4 processig at a crime scee aywhere ear i time to whe the crime took place. Well~ ot to be argumetative but the case that we're talkig about though although it was ot cotemporaeous i -- i -- i time the scee had bee preserved for the iterveig two years so I thik that that would qualify as a -- as a legitimate crime scee processig but other tha that o~ ~ You were employed accordig to your resume at some :I L -: C c o time i Cotra Costa Couty as a crimialist?

46 I ~ - 4 ~ Ad were you employed there as a supervisor? 4 ~ How may years did you act as a supervisor i Cotra Costa Couty? Probably about four perhaps five. I was there for ie years of which oe year I spet as laboratory director probably four or five years as a supervisor. Q The period of time you spet as the director of the 0 laboratory was that at a period i time i which someoe was o a leave of absece ad you filled i for that perso? /~~ That's right. Q. Ad you were the actig director for the period of time that perso was abset? How may years did you sped i Cotra Costa -i the u ~ crime lab durig which you actually wet to scees ad attempted to process scees? C 0 4 Probably eight years. I'm sure that i the year that I was laboratory director that I would also have processed some crime scees if I could't fid ayoe else to do it; so my crime scee processig durig that last year would have bee miimal but I do't thik that it would have bee ill.. o C -j ~ ~ How may times have you testified i a court of law

47 ~ -4 4 as a expert as a crimialist? May humreds ~ More tha a hudred? More tha 00? 0 Three hudred perhaps? Probably yes. Somewhere betwee is it fair to say that you.ve testified as a crimialist somewhere betwee two ad three hudred times two hudred fifty ad three hudred times? ~""'. 0 k Q. Probably somewhere aroud there. Whe I was workig for the Sheriff's Office a great may of those cases were drug cases documet cases. How may cases of the 00 if you've testified that may times as a expert ivolved cases where you testified as a expert as to the aalysis of a cotrolled substace? Probably a hudred hudred fifty times. u 4 J L - o. The 00 that's the total umber of times you've -- You've actually testified as a expert i a court of law 00 times you thik? I thik that's probably a reasoable estimate. I have I - J B ever kept records. I do't'have access to precise umbers but I thik 00 times would probably be fair.