Bruton, Crawford, Carpenter, Thomas and Michael Price
Today’s afternoon session saw the end of Doug Deedrick’s mind-numbing testimony and cross examination. The former FBI trace evidence analyst had a tough Thursday and a slightly better Friday, thanks to his manager, AUSA Rachel Lieber.
Ward counsel David Schertler’s cross continued at 2:15pm, after today’s lunch recess.
Schertler again put Deedrick through the paces, looking to poke holes in his testing and findings regarding key pieces of evidence: the crime scene knife, bloody towel, Robert’s green gym shorts and a somewhat mysterious item (government exhibit #34), a white Prada shirt recovered from the washing machine at 1509 Swann.
Schertler hit Deedrick hard on an inconsistency between an article he authored years ago on identifying fibers, and his more recent work on the Wone case. Schertler boomed, “Your words as an FBI agent and trainer of all these other agents… You were the man!” Before the government could object, Judge Lynn Leibovitz reprimanded the defense attorney for being argumentative. Hectoring seemed more like it.
More after the jump.
Deedrick was hit hard on his testing and experiments and his somewhat inconclusive opinions he got from them. Schertler was suggesting his control samples, “the known cuts,” were of little use because of the many ways garments can wear, be exposed to sun and other chemicals or substances. The towel may have had residue from Robert’s shampoo and body oils which could render it faulty to test against. Deedrick conceded the point.
We learned that the hair fragments found on the crime scene knife came from an Asian. Schertler was suggesting that was obviously the case since the knife pierced through a patch of Robert’s body hair; the wound locations in the autopsy photos reveal such.
At 3:00pm, Price counsel Bernie Grimm took the baton cudgel and went to work. He promised the court that he’d only take twice as long and his colleague’s seeming marathon cross.
Leibovitz jokingly said, “We’re leaving at 4:45pm, you can keep going.”
Grimm suggested that the hairs, seen clearly on the photo of the crime scene knife, had fallen off by the time it got to Deedrick’s lab, in other words a failure by the authorities to do timely evidence testing.
Grimm then donned a pair of latex gloves and held up the bloody t-shirt. Grimm asked the expert if it was possible that the frayed cut mark on it, the one under the “A” in “William,” could’ve caused the dotted marks he observed on the knife’s bolster. Deedrick said he didn’t know. Bernie Grimm fooled us; he was done by 3:05pm. Zaborsky counsel Tom Connolly, continuing his easy week passed on cross.
Judge Leibovitz had questions of her own for Deedrick and asked him about how nylon garments shed fibers, whether other trace experts use fabric imprint tests (they do), and how many times in his career did he use imprints for opinions. 15-20 Deedrick said. The judge wrapped by asking Deedrick why he used a towel in his imprint test on the knife and not another article of clothing. Deedrick said it was the loop fibers of a towel that may have most closely matched the pattern he saw on the knife.
Doug Deedrick had a rough go of it in this trial and the only reason he may not have slinked out of the courthouse with his tail between his legs is because of Rachel Lieber’s redirect. To counter Schertler’s charge that Deedrick wasn’t following the established protocols set out in the article he authored, Lieber had Deedrick read the preceding couple of paragraphs, ahead of the one that Schertler cherry-picked. That seemed to be all the cover Deedrick needed on that point.
To counter Schertler’s contention that the hairs found on the knife came directly from Robert’s chest, she posed a hypothetical to Deedrick: If a towel absorbed blood from a chest wound, could hairs transfer onto the towel as well, and if that towel was swiped onto a knife, could the hairs transfer to that? Yes.
To beat back the charge that Deedrick got the knife very late in the process, months after Robert’s murder, Lieber asked him about typical delays in obtaining items of evidence. Deedrick said sooner is always better but delays are inevitable; it’s rare to get a piece of evidence on the same day as the crime. Deedrick said his forensic work on the Challenger disaster had delays in delivery of items, weeks later he said.
To account for Deedrick’s somewhat unorthodox tests (pork loin and knife swipe), Leiber quoted a respected forensics text that stated, “experimentation is necessary after all forensic examination is complete because you cannot recreate a Xerox copy of the event.” Lieber even brought up a book authored by the renowned Dr. Henry Lee to give her witness some cover. Lee himself is a believer in imprint and impression analysis, unlike the defense team that has hired him for other testimony. At one point during the redirect, Schertler popped up and popped off. Leibovitz sat him down pretty quickly, telling him, “I generally don’t permit speaking objections in my courtroom, Mr. Schertler.” We’re guessing Leibovitz never allows them.
Lieber was done and Schertler rose with a request to re-cross; a bench conference followed. Afterwards, Leibovitz told Schertler, “I’m just not going to allow recross in this trial. That’s a pattern I can see going downhill quickly.”
All of this Deedrick shpilkes from the last two days may be for naught. At some point Leibovitz will rule if his testimony will be considered and maybe it won’t.
The hour was getting late but AUSA Glenn Kirschner called, make that recalled his next witness, MPD Detective Gail Russell-Brown. Brown was sent home early days ago after she took the stand to testify on one of the interview videotapes, and since the government was not clear at the time on the use of those statements, for the truth or not, she never testified.
Kirschner then made for the most interesting moments in the last two days; he asked Brown about attending Robert’s funeral with Detective Waid and how she heard remarks that Price’s brother Michael made in the church’s parking lot. The defense table erupted in an objection and a rather long bench conference followed.
Leibovitz asked Kirschner what he expected to get out of Brown’s testimony and its relevance. The Chief said that Michael Price’s remarks heard in an “off-putting and alarming way… that he set out an alibi (without being prompted)… he indicated he was at the hospital at the time.”
Kirschner went on to say that the testimony from a (as of now unnamed) “civilian witness dovetails with records of enrollment and attendance in a phlebotomy class for weeks and weeks… but he missed class on August 2 2006… He (Michael Price) pops up at the VCB the next morning…”
Kirschner contends that the brother is key to an overt act of the conspiracy, Joe Price’s failure to divulge his younger brother had a key to the house on Swann Street. The government will prove that he had a key by way of the defendants’ statements to the burglary grand jury.
And this is where we get into the dark and murky recesses (to novices, at least) of evidentiary law. Confidently, Kirschner told the judge that Bruton does not apply to bench trials. She cut him off and said:
“You really need to read the Thomas case. Thomas and cases after Crawford shift the perspective on testimonial statements… Crawford, but maybe not Carpenter. I want you to keep in mind why I keep throwing fits over statements… I’m doing three silo trials. “
Over the holiday weekend, the government will draft a follow-on notice on their use of civilian statements. Kirschner said that Michael Price’s state of mind, subsequent burglary and the delayed reporting of that informs him on the Michael Price angle to August 2.
The prosecutor then went on to say how much longer his case in chief will go and that things have gone slower than he expected. The entire courtroom laughed. After getting squared away on use of statements he expects to call Detective Brian Waid next week for two days of testimony and cross, and that his civilian witnesses may run into a day or two into the week after.
Leibovitz again stressed her concern over the importance of statements of co-defendants in a joint trial and the concern of prejudice arising to the non-declarants. “I have a huge degree of confidence to follow my own instructions,” she said, and then went on to say there was merit in Ward counsel Robert Spagnoletti’s arguments (from a pre-trial hearing).
“I’m not asking for additional mental gymnastics,” Leibovitz said. Who can blame her. She really got a workout this week. The trial resumes Tuesday morning.