The Whispered Assertions the Jury Will Never Hear
It’s rare a topic in this case comes along that so finely meshes with your editor’s skill sets…other than the basic one. And by that we mean living in DC long enough – and having been employed on some side of the communications business – to detect excrement when it happens. (And, hopefully, still have the chutzpah of Sen. Levin to call a “…shitty deal…” exactly what it is.) But at many levels, this case has been a learning exercise.
Last Friday, Victor Zaborsky’s counsel Thomas Connolly informed the court the defense would not call for testimony from Dr. Al Yonovitz, Chair and Associate Professor for the Department of Communicative Sciences and Disorders at the University of Montana.
Anything that slims the calendar may be a good thing for both sides. And Dr. Yonovitz’ research – much based in Australia – demonstrates a sharp and admirable focus on improving treatment of the hearing impaired, especially among the aboriginal population. Good work, Dr. Al.
But then we dug down into Dr. Yonovitz’s expected testimony, and questions popped up. Questions as to the basis for his assertions – and the deeper questions they may have provoked that the defense may not have wanted.
Are you listening? To be determined, after the jump.
Back to skill set. One of us completed his thesis work in psycho-acoustics titled – should anyone care -“Gestalt Grouping Versus Peripheral Auditory Channel Excitation in Stream Segregation.” (Not the link to the thesis, but one subsequent peer-reviewed article of many.)
We have a fairly robust understanding of audiology and acoustic research. Which brings us back to what the defense put forward as Dr. Yonovitz’s expected testimony.
In Attachment B of the Government’s Omnibus Motion in limine Regarding Certain Defense Experts, we learn that Dr. Yonovitz (designated by “Defendant Zabrosky”) conducted sound measurement tests at 1509 Swann. Among the tests was placing a speaker generating white noise (equal distribution across the spectrum) staring at 60 dB in the second floor office/bedroom and monitoring sound levels at various points in the house, under various circumstances. Another test:
“Dr. Yonovitz is also expected to testify that the noise level for a 213 pound person walking on the stairs from the first floor to the second floor and the second floor to the third floor was recorded. The noise level when tested for the sound of the person on the stairs was 48.2 dB (from the crime scene bedroom), 46.6 (for the second floor bedroom) and 44.4 (for the third floor bedroom.”
It was also his assertion that “…a person’s sleep can be interrupted or disturbed by sound levels between 60 and 84 dB, however, rarely is a person awakened by those sounds. Only where the highest level of sound source (85-90 dB) occurs is an awakening likely to occur.” Ergo: it’s entirely plausible the housemates didn’t hear the intruder go up and down the stairs.
Considering the logarithmic nature of the dB scale, the difference between 45 and 85 is massive. 45 dB may be like the general ambience of a quiet home – humming appliance, computer hard drive, filtered street sounds – while 85 can be like sitting in a moving diesel truck.
The first question is the methodology for the stairs test. Was this person walking steadily and surely up the stairs? Or was he running down, each footfall landing fast and hard? There’s a vast difference not only in amount of noise generated but the character of the noise and how the brain interprets it.
But a deeper issue crops up. As we saw Tuesday, both Joe and Victor made specific, repeated references to “..low breathy grunts…” they heard coming from Robert’s room. This with, as they say, both his door and their door closed.
First, there’s a significant difference between a low grunt and a high-pitched scream in terms of how the sound propagates and is heard by the brain. But if Dr. Yonovitz’s ambient test results were correct, then – by his own testimony – there’s virtually no way the two upstairs could have heard such low sounds.
So which is it? Is Swann silent as a library or loud as a disco? If silent, then no-one could have heard the low grunts; if loud, then why did no-one hear the hurried footsteps of a fleeing murderer?
We can only guess how much the defense had to pay Dr. Yonovitz for his time, research and opinion, but with the pulling of his testimony, it was money wasted. Perhaps worse: with the prosecution’s publishing of his findings and the contradictory assertions they present, it may have been money misspent.
–posted by Doug