Testimony Notes – 9 March 2007

The defense counterattacked.

First came a laboratory quality auditor, Janine Arvizu, who discussed the results of edta testing presented by FBI’s Marc LeBeau.

She testified that this was by far the fastest test development she had ever seen. The lab was testing case samples before the competency of the tests was determined. She also pointed out that while instrument detection limits were measured, there was no corresponding attempt to find the method testing limits.

LeBeau poured some blood from the vial and ran an analytic test on the pour. Then he derived a bunch of rather magical conclusions. He did not produce dried blood stains from the vial. Obviously, he did not compare swabs produced from blood in the vial to swabs from the crime scene.

LeBeau also extrapolated results tests from three evidence swabs to three untested swabs. Arvizu pointed out that unless a person tests all the swabs they cannot possibly state what the results are for each one of the swabs.

She also showed, via the FBI Lab reports that while LeBeau testified about obtaining positive test results from a one microliter sample, he neglected to testify that there was no positive test results from a two microliter sample. The samples were from the same materials.

Janine Arvizu then went to make the point that LeBeau had claimed the blood stains in the Toyota were not from the vial, therefore, they came from an actively bleeding finger. However, she stated that those are not the only two conclusions that can be reasonably inferred.

She is correct; of course. LeBeau was not on the scene to observe but simply guessed instead. She also agreed to the correctness of the some of the procedural steps. And she concluded that there is no way of knowing whether the results of the tests are valid. It seems to me to be a more honest approach than LeBeau’s dogmatic approach.

On cross examination, she admitted that she has never performed tests for edta presence, not has she ever used the equipment from the FBI Lab. But, reasonably that would not be necessary since she was testifying to quality issues that demonstrated the quality in the LeBeau tests was woefully inadequate.

Scott Fairgrieve, a consulting forensic anthropologist for the Office of the Chief Coroner of Ontario, testified about the bones. This was the first time in his career that he testified for the defense.

He testified that he agreed with Leslie Eisenberg that the bones where that of an adult female but could not agree with her in restricting the age. He also testified that the burn pit was not the original burn site. He pointed out that the bones were moved simply because of being found in two different locations. (And there were outlying bones around the fire pit)

He also testified about the possibility of various other locations as being the original burn site. Fairgrieve stated that the bullet holes in the skull would not indicate death by homicide, The only reasonable inference as the holes were from around the time of death.

Tom Fallon performed cross examination. Fairgrieve used the Eisenberg report, the Sturdivant report, and photographs to draw his conclusions. He did not write a report. He readily agreed with some of the prosecution assertions. He also agreed that he could not defiantly rule any location in or out as a source of the burning. And he agreed that tires can be a good fuel source. During this time, Fall began referring to forensic anthropologist as “Doc.”

Dean Strang asked on redirect about odors from burning tires and whether the odor would be noticeable. The answer was that the pungent oder would be very noticeable especially close to the bones.

Fallon re-crossed with a question about weather conditions removing the odor. The witness sated that it was possible. No specific weather conditions were discussed. Fallon appeared to struggle with asking his final question. He closed by telling “Doc” that he “lucked out” because he (Fallon) could not remember the question.

Overall, I found these defense experts more credible that the corresponding prosecution experts. They were simply less dogmatic and more responsive to questioning. Arvizu was willing to show where the FBI LAB got it right as well as wrong. The places where the FBI LAB got it wrong were clear. She needed no wandering diatribes.

One thing about the LeBeau testimony that was remarkable was his desire to correct himself. He would ask defense attorney Jerome Buting if he could correct testimony he made earlier. “Sure, go ahead,” would be the response. And the prosecution witness blissfully contradicted himself.

The final witness was Mark Wiegert. Dean Strang questioned him about the statement the school bus driver gave. The time frame was established here as being in the same week as the police barricades were erected. He was somewhat evasive about this. Finally stating that she had stated a slightly different location what was given in her testimony. Strang asked whether any other reports of any woman taking photographs had been received. He responded no.

Fallon asked him whether he recalled her earlier testimony that it could have been two weeks before October 31, 2005 that she saw the photographer. Wiegert remembered that.

Wiegert has been in the courtroom throughout the trial. I found the bus driver’s testimony pertinent and potentially useful despite her shifting time recollection. It has been established that she saw a photographer in the Avery driveway the week of Halbach’s disappearance.

As far as which I would trust more, I would like to see Wiegert’s documentation of her statement.

Documentation for two telephone calls to Steve Avery’s from his girlfriend was entered by stipulation. She was in jail at the time, so the calls were recorded.