March 24th, 2005 Trial Analysis: Dr. Antonio Cantu (Cross Examination), Lisa Susan Hemman, Charlene Marie, Heriberto Martinez, and Timothy Sutcliffe (Direct & Cross Examination), Part 2 of 2
Under redirect examination, Mag Nicola tried to prejudice the jury by having Hemman read a statute regarding the showing of pornographic material to minors by an adult. Sanger objected due to the fact that it’s considered improper for lawyers to have a witness read a document in court, unless it’s for the purpose of refreshing their recollection about something, but Judge Melville overruled it:
7 Q. BY MR. NICOLA: I’d like to show you Penal
8 Code Section 313.1, and ask you to read it to
9 yourself, subparagraph (a).
10 MR. SANGER: I’m sorry, I — is this to
11 refresh recollection? If it’s not, it’s improper.
12 THE COURT: It’s improper to read in court?
13 MR. SANGER: That’s such a good straight
14 line, there’s got to be an answer, but I don’t have
15 one, Your Honor.
16 It’s not proper to have the witness read
17 something unless there’s a foundation laid
18 refreshing recollection. She’s being asked to read
19 a law book.
20 THE COURT: I’ve never heard that objection.
21 Q. BY MR. NICOLA: Have you read it?
22 A. Sort of.
23 MR. SANGER: Object. Irrelevant; “Have you
24 read it?” It’s got to be relevant to something,
25 refreshing recollection.
26 MR. NICOLA: It will be, Your Honor. And if
27 it’s not, then the Court won’t let me ask the
28 question, I’m certain. 3425
1 THE COURT: The objection is overruled.
2 THE WITNESS: Okay.
3 Q. BY MR. NICOLA: Finished reading?
4 A. Yes.
5 Q. Okay. Mr. Sanger elicited from you the
6 opinion that possessing the kind of material that
7 you found in the briefcase is generally lawful. You
8 gave him the opinion that you thought it was.
9 A. Lawful to own by an adult.
10 Q. If that material were shown to a minor —
11 A. I believe —
12 MR. SANGER: Objection, Your Honor. Calls
13 for a legal conclusion.
14 THE COURT: It’s rebuttal to your question,
16 THE WITNESS: It would be illegal —
17 THE COURT: You may answer.
18 THE WITNESS: It would be illegal to the
20 Q. BY MR. NICOLA: And that’s Penal Code
21 Section —
22 A. One — 313.1(a).
Finally, Nocola asked Hemman to once again confirm that the fingerprints of Gavin and Star Arvizo were found on the magazines that were seized from Neverland:
23 Q. When you — when you participated in the
24 fingerprint work in this case later on in 2004, were
25 you the partner of anybody in particular?
26 A. Yes. I was partnered up with a retired
27 sergeant, Bob Spinner.
28 Q. And is he the person tasked with making the 3426
1 analysis of the fingerprint comparisons in this
3 A. Yes. He was the initial and I was the
5 Q. And is that a standard protocol?
6 A. Yes. We used — every time we’ve made a
7 fingerprint, we always have two people examine it
8 independently. That way we hopefully won’t make a
10 Q. To your knowledge, were the fingerprints of
11 any minors recovered from Item 317-R?
12 A. I’ll need to check a list.
13 MR. SANGER: I’m going to object that
14 there’s a lack of foundation at this point.
15 THE WITNESS: Yes.
16 THE COURT: Just a moment.
17 MR. SANGER: I’m going to withdraw the
18 objection, Your Honor.
19 THE COURT: All right.
20 THE WITNESS: Yes, there were some.
21 MR. NICOLA: Okay. It’s a “yes” or “no.”
22 THE WITNESS: Yes.
23 MR. NICOLA: Okay. I have no further
24 questions, Your Honor.
Sanger immediately began his redirect examination by getting Hemman to confirm that she isn’t a lawyer, she wasn’t offering a legal opinion on what Jackson had been charged with in this case, and the pornographic magazines were perfectly legal for an adult to own:
27 BY MR. SANGER:
28 Q. Well, first of all, before we get into the 3427
1 last area, the identification of the fingerprints –
2 and I think we can turn off the screen if you – the
3 District Attorney asked you to read a section out of
4 the Penal Code, I guess. Is that what he did?
5 A. Yes.
6 Q. All right. And you would agree that you’re
7 not a lawyer, right?
8 A. Yes.
9 Q. And — you could be, actually. I shouldn’t
10 have put it that way. But you aren’t, it turns out.
11 A. I’m not a lawyer.
12 Q. Okay. And you’re not offering an opinion as
13 to what Mr. Jackson is charged with in this case,
14 are you?
15 A. No.
16 Q. And as far as you know, he is not charged
17 with the code section that you were asked to look
19 A. As far as I know, no.
20 Q. Okay. And in fact, the kind of material
21 that if adults possess it – that’s all I asked was
22 if adults possessed that kind of material – there’s
23 nothing illegal about simply possessing that kind of
24 material, true?
25 A. True.
In this excerpt, Sanger attempted to attack the credibility of Det. Hemman by getting her to admit that she lacks certain key credentials that are common among latent fingerprint examiners, and questioned her about the fact that a set of fingerprints that she ruled were “inconclusive” were later ruled to belong to Star Arvizo by another fingerprint examiner, and so she changed her ruling to agree with that second examiner:
25 MR. SANGER: Thank you, Your Honor.
26 Q. Okay. Just before the break, we were
27 talking about validation studies, and one of the
28 aspects that you talked about was proficiency 3441
1 testing, I think; is that right?
2 A. Competency.
3 Q. Competency. Are there blind proficiency
4 tests that are issued to latent print examiners?
5 A. If your agency requests one, yes.
6 Q. Have you been involved in such a test?
7 A. No.
8 Q. Now, you’re aware that over the last few
9 years, that various agencies have tested where they
10 send out prints and ask that they be compared and
11 that they found both false negatives and false
12 positives; is that correct?
13 MR. NICOLA: Objection; compound.
14 THE COURT: Overruled.
15 THE WITNESS: Not personally, but I know of
16 proficiency tests, yes.
17 Q. BY MR. SANGER: So you have not been tested
18 at all?
19 A. No.
20 Q. All right. In this particular case, in this
21 particular case involving Mr. Jackson, you went over
22 the original set of prints that were compared, and
23 you participated in confirming the conclusion that
24 either there was an identification or there wasn’t;
25 is that correct?
26 A. Yes. There would be three results. There
27 would be a positive, meaning it was an I.D., a
28 negative, meaning it did not match, or inconclusive, 3442
1 meaning that it could, but we couldn’t rule out and
2 we couldn’t rule in.
3 Q. All right. And when you make a positive
4 identification, is it your understanding under the
5 rules that govern latent print examiners — let me
6 withdraw that.
7 Are there any formal rules and regulations
8 that govern latent print examiners in California?
9 A. There’s no formal rules, but our agency uses
10 the ACE-V method, which is analysis, comparison,
11 evaluation, and then verification.
12 Q. All right. You’re familiar with the rules
13 of ethics that have been promulgated by SWGFST?
14 A. I’ve read them.
15 Q. Well, do you feel they’re appropriate for
16 the profession?
17 A. Yes.
18 Q. All right. And they reflect, pretty much,
19 what the latent print examiners as a group are
20 striving towards —
21 A. Yes.
22 Q. — is that right?
23 When you make a positive identification, it
24 is supposed to be just that, positive?
25 A. Positive.
26 Q. And it’s — there’s no room — if you say
27 positive, you’re expressing the opinion that there’s
28 no possibility that anybody else could have left 3443
1 that print; is that correct?
2 A. It has to be 100 percent. If it’s 99.9,
3 it’s inconclusive.
4 Q. All right. And in this particular case,
5 there were two prints that you had expressed an
6 opinion on which were later determined by others not
7 to be a correct evaluation; is that correct?
8 A. Which ones?
9 Q. Are you — okay. After you got through
10 looking at the fingerprints, you did that with
11 Detective Spinner; is that correct?
12 A. Yes.
13 Q. And you and Detective Spinner each formed an
14 opinion as to whether or not there was a positive
15 identification or not; is that correct?
16 A. Yes.
17 Q. And you then reduced these opinions to
18 written reports; is that correct?
19 A. I did not write any reports.
20 Q. Detective Spinner did?
21 A. Yes.
22 Q. Did you review his reports?
23 A. Not every one of them, but I — I verbally
24 talked to him about everything.
25 Q. So you were aware that he was filing reports
26 that reflected your conclusions that either a print
27 was positive or inconclusive or negative; is that
28 correct? 3444
1 A. Yes.
2 Q. Are you aware of two prints that later were
3 determined by other examiners not to be correctly
5 MR. NICOLA: I’m going to object. It
6 assumes facts not in evidence. There’s a lack of
7 foundation as to her personal knowledge.
8 THE COURT: I’ll sustain the foundation.
9 Q. BY MR. SANGER: All right. Let’s take it
10 one at a time. Were you aware that 317-L — you had
11 formed an opinion, along with Detective Spinner,
12 that the print was inconclusive; is that correct?
13 A. I —
14 MR. NICOLA: Objection; vague. There were a
15 number of prints on 317.
16 MR. SANGER: Okay. Let’s get the exact one
18 Q. While I’m looking for it, let’s just do
19 this: Were you aware that, with regard to 317-L,
20 that one of the prints that you determined was
21 inconclusive, other examiners have come back and
22 said that there is a positive match?
23 A. We —
24 MR. NICOLA: Objection. Lack of foundation
25 as to who the other examiners might be.
26 THE COURT: Overruled. But the question —
27 THE WITNESS: This is —
28 THE COURT: The question is, “Are you aware 3445
1 of other opinions?”
2 THE WITNESS: Yes. Can I —
3 THE COURT: No, you can ask your next
5 MR. SANGER: Okay.
6 THE WITNESS: Can I —
7 Q. BY MR. SANGER: And we are talking
8 specifically about Fingerprint No. 1, on page 31 of
9 Evidence Item 317-L, which would have been — well,
10 anyway, evidence Item 317-L. Are you familiar with
11 that print?
12 A. Yes.
13 Q. And you and Detective Spinner decided that
14 that was inconclusive; is that correct?
15 A. At the time of — when we did all the
16 comparisons, we did 24,000 comparisons, we figured,
17 approximately. We couldn’t spend a lot of time
18 really evaluating —
19 MR. SANGER: Your Honor, I move to strike
20 the answer. Not responsive.
21 THE COURT: Sustained. It’s stricken.
22 MR. SANGER: Could you answer that question?
23 THE COURT: Have it read back.
24 (Record read.)
25 THE WITNESS: May I explain a little, other
26 than a “yes” or “no”?
27 MR. SANGER: I have to have an answer first.
28 THE WITNESS: Okay. Yes. 3446
1 Q. BY MR. SANGER: You found that to be
3 A. At that time, yes.
4 Q. Later, there was a determination made by
5 somebody other than you that that should be
6 classified as a print belonging to Star Arvizo; is
7 that correct?
8 A. We did it together, yes.
9 Q. Okay. So you filed your original report, or
10 Detective Spinner filed his original report on that
11 particular item around the end of June of 2004; is
12 that correct?
13 A. Approximately, yeah.
14 Q. Okay. And that’s roughly when you concluded
15 your work making the comparisons; is that right?
16 A. With that particular latent?
17 Q. Yes, I’m sorry. But with regard to that
18 particular —
19 A. Amongst thousands, yes.
20 Q. With regard to that particular item, 317-L,
21 which was a particular magazine; is that correct?
22 A. Yes.
23 Q. With regard to that magazine, you concluded
24 your work towards the end of June of 2004; is that
26 A. I don’t think it was 2 — in June, no.
27 Q. When was it?
28 A. It was sometime in the fall. 3447
1 Q. Okay. All right. In any event, fall 2004?
2 A. Yes.
3 Q. All right. And then in February, or let’s
4 say January and February of 2005, you looked again
5 at Item 317 with Detective Spinner; is that correct?
7 A. I think it was in January, yes.
8 Q. January 2005?
9 A. Yes.
10 Q. Okay. We’re in the middle, at that time, of
11 pre-trial motions in this case; is that correct?
12 A. I guess so, yeah.
13 Q. Jury’s about to be —
14 A. Well, it was the beginning of January 2005,
15 because I — I was still pregnant.
16 Q. Okay. All right. And at that time you had
17 already — by that time, you had already filed this
18 report saying that print, that being Fingerprint
19 No. 1, developed on page 31 of Evidence Item 317-L,
20 was inconclusive?
21 A. I did not file a report.
22 Q. Detective Spinner filed the report with that
23 conclusion, correct? Your unit filed a report with
24 that conclusion, correct?
25 A. Inconclusive in November, October. And then
26 we filed another report I believe in January.
27 Q. Yes, ma’am. And then — actually, the
28 report that you filed — do you have that report in 3448
1 front of you, by the way?
2 A. I did not file a report. It’s all — it’s
4 Q. Detective Spinner filed it, right?
5 A. Yes.
6 Q. And you and he were working together in your
7 unit, the forensic unit, Bureau of Criminalistics
8 for the sheriff’s department analyzing these prints,
10 A. Not — I was on maternity leave at that
11 time. I came in on a — for a couple hours one day
12 to meet with him.
13 Q. One day when?
14 A. In January.
15 Q. Okay. So when he says that you concurred
16 with him that this print should be reclassified, you
17 concurred with him based on a two-hour consultation?
18 A. Well, I would think it was more than two
19 hours, but I can’t say exactly. I didn’t have a
20 stopwatch with me. It was an afternoon. It was a
21 print that was — we couldn’t spend the time on it,
22 as I recall.
23 Q. What I want to ask you is how much time,
24 now. What you’re saying is maybe more than two
25 hours, but it was an afternoon?
26 A. It was an afternoon, yes.
27 Q. All right. And in the course of that
28 afternoon, did you review other prints other than 3449
1 the one that we just referred to, Print No. 1 on
2 page 31 of 317-L?
3 A. Yes, I believe we reviewed all the
5 Q. All of them?
6 A. Yes.
7 Q. And you determined in this case, between the
8 two of you in that period of time, that your
9 previous inconclusive should be now reported as a
10 positive for Star Arvizo; is that correct?
11 A. Yes. There’s — as an examiner, you always
12 go on the edge of caution, so you want to make sure
13 it’s a positive-positive. If you have any — if you
14 want — if you want to rush a job and you don’t —
15 if you don’t want to rush a job, you make it an
Sanger then challenged Hemman about another fingerprint that was initially ruled a positive match of Jackson’s fingerprint but ruled inconclusive by her partner, Det. Bob Spinner:
16 Q. In that same January time period, it was
17 determined that your positive identification of
18 Fingerprint No. 1 on page seven of Evidence Item
19 317-O where Mr. Jackson was positively identified by
20 you earlier, that that should have been
21 inconclusive; is that correct?
22 A. We didn’t make it a positive, because I
23 still feel it’s a positive. Bob feels it’s more of
24 an inconclusive. And so we can’t come to a
25 conclusion, so it’s still an inconclusive.
26 Q. So “Bob” is Detective Spinner; is that
28 A. Detective Spinner, yeah. 3451
1 Q. But once again, that had been written up as
2 a positive prior to January and February of 2005,
4 A. By “Bob,” by Bob Spinner, yes.
5 Q. So fingerprint identification is really
6 subjective; is that correct?
7 A. Yes.
8 Q. In other words, it’s up to somebody who has
9 training or — in other words, or whatever their
10 background is, to look at the latent and look at the
11 rolled print and make a subjective determination
12 that they believe that it’s the same person; is that
14 A. Yes, with training.
15 Q. And we have indicated with a couple of
16 examples, and I won’t go into any more particular
17 ones with you right now, but there have been a
18 number of other notable misidentifications of prints
19 in recent years, have there not?
20 A. Yes.
Nicola engaged in further redirect examination in order to have Hemman clarify her initial evaluation of “inconclusive” to the Star’s fingerprint on the adult magazine. Hemman testified that, although the fingerprint was inconclusive, she believed it belonged to Star; this is something that Sanger would challenge her on in a subsequent recross-examination coming at the end of this excerpt. She also testified that there weren’t many positive matches either, and after initially objecting to this question, Sanger immediately withdrew it!
26 Q. BY MR. NICOLA: Did you want to explain that
27 inconclusive that you and Mr. Spinner went back to
28 take a look at? 3462
1 A. Yes. Fingerprint comparisons —
2 MR. SANGER: I’m going to object as, first
3 of all, the question is vague. Secondly, that seems
4 to be nonresponsive.
5 MR. NICOLA: Can I rephrase?
6 THE COURT: Yes.
7 Q. BY MR. NICOLA: Okay. Mr. Sanger brought up
8 an inconclusive fingerprint on Item 317-L.
9 A. Yes.
10 Q. What can you tell us about that one?
11 MR. SANGER: Objection; calls for a
13 THE COURT: Sustained.
14 Q. BY MR. NICOLA: Can you explain what an
15 inconclusive means?
16 A. It means it’s a difficult print, and you
17 can’t rule the person to be a positive I.D., and you
18 can’t rule him out to be a negative I.D. With
19 further time examining it and spending time running
20 the ridges and working with the print, you can turn
21 it into a positive or you can turn it into a
23 But at the time of evaluation at that time,
24 we wanted to leave it as an inconclusive, and come
25 back to it, because it was a more difficult print to
26 make an I.D. of.
27 Q. Okay. With respect to that particular
28 print, an inconclusive fingerprint is one that you 3463
1 believe belongs to a particular person?
2 MR. SANGER: Objection; leading.
3 MR. NICOLA: I’ll rephrase it, Your Honor.
4 Q. Did you have a belief as to who that
5 fingerprint was made by, even when you labeled it
7 A. Yes.
8 MR. SANGER: Objection. Objection; that’s
9 an opinion without an adequate foundation.
10 THE COURT: It’s overruled. She’s already
11 testified that she had an opinion separate from the
12 other person, so I’ll allow the question.
13 MR. NICOLA: Do you want it read back?
14 THE WITNESS: Yeah.
15 (Record read.)
16 THE WITNESS: Yes.
17 Q. BY MR. NICOLA: And what was that?
18 A. As Star Arvizo.
19 Q. Okay. You mentioned that you reviewed all
20 the inconclusives with Detective Spinner. Were
21 there many inconclusive fingerprints?
22 A. I don’t have the complete list, but there
23 weren’t that many.
24 Q. And in fact, there weren’t very many
25 positive fingerprints either, were there?
26 A. No.
27 MR. SANGER: I’m going to object —
28 withdrawn. 3464
1 THE COURT: Did you withdraw that?
2 MR. SANGER: I withdrew it. I’m sorry, Your
4 Q. BY MR. NICOLA: Can you explain to us what
5 you meant by fingerprint examining being an applied
7 MR. SANGER: Asked and answered.
8 THE COURT: Overruled.
9 You may answer.
10 THE WITNESS: An applied science is
11 something that can be repeated by someone of the
12 same level of proficiency that you are at. So if I
13 did a comparison and gave it to another examiner,
14 they should come to the same conclusion that I came
16 MR. NICOLA: Okay. Thank you very much. I
17 have no further questions.
Here is where Sanger challenges Hemman about the unprofessionalism that she exhibited by declaring an inconclusive fingerprint to belong to Star Arvizo:
19 FURTHER RECROSS-EXAMINATION
20 BY MR. SANGER:
21 Q. One of the rules articulated by SWGFST is
22 you don’t express an opinion on an inconclusive
23 other than it’s inconclusive, right?
24 A. Yes, but you still have a gut feeling as to
25 what you — what you feel.
26 Q. And according to SWGFST, according to their
27 rules of ethics, it’s inappropriate to come into a
28 courtroom and testify as to who you believe an 3465
1 inconclusive print may belong to. They deem that
2 unethical, do they not?
3 A. I guess so.
4 Q. Okay. Now, as far as your explanation of
5 this applied science business, I understand that you
6 come to this by certain training and experience, but
7 when you put the actual prints up on the board –
8 when I say “the board,” the screen, for instance,
9 behind you – and show them to a jury or a group of
10 intelligent people, they should be able to follow
11 your analysis in coming to the conclusion that there
12 either is or is not a match, correct?
13 A. On — yeah. Yes. With some explaining and,
14 you know, some basic training in the courtroom,
16 Q. All right. In other words, it’s not — it’s
17 not — you’re not seeing something that other people
18 cannot see. You are appreciating things that you
19 have learned to appreciate from your training and
20 experience, correct?
21 A. Yes.
22 Q. So when it’s up there, the jury or anybody
23 else in the courtroom can look to see the points of
24 identification or the other characteristics of the
25 print, the latent print and the rolled print, and
26 they should be able to visually see the same things
27 that you can see, correct?
28 A. They should — 3466
1 MR. NICOLA: Objection, Your Honor, that
2 calls for speculation.
3 THE COURT: Overruled.
4 THE WITNESS: They should, you know, with
5 some explaining from the examiner, you know,
6 pointing out the details, be able to see everything
7 we see.
8 Q. BY MR. SANGER: It’s not reading tea leaves
9 or something —
10 A. No.
11 Q. — or where there’s something mystical about
13 A. No, they’re there.
14 MR. SANGER: All right. Thank you. No
15 further questions.
16 MR. NICOLA: I have nothing further, Your
18 THE COURT: Thank you. You may step down.
19 Call your next witness.
The next prosecution witness was Charlene Marie, a senior criminologist at the California Department of Justice at the Santa Barbara Regional Crime Laboratory. Her direct testimony consisted exclusively of her confirming the evidence that she handled, which was mostly adult magazines and artwork.
Under cross examination, Marie testified that she did not find any DNA or bodily fluids on the evidence that she examined:
3 Q. Okay. And your job was to look at that with
4 an alternative light source, correct?
5 A. Yes.
6 Q. Did I ask you this? On 766, that’s your
7 handwriting on the notes around the pictures?
8 A. It is.
9 Q. All right. And when you looked at the
10 alternative light source, looked at the items with
11 the alternative light source, did you find any
12 suspected DNA to sample and analyze?
13 A. Well, the light source is just a presumptive
14 searching tool, and all it’s going to tell you is if
15 something’s glowing. If something’s glowing,
16 biologicals do glow, so that’s one area that you
17 might want to test.
18 Q. Okay. Is that what you were looking for?
19 A. I was looking for biological material, yes.
20 Q. Bodily fluids, pretty much?
21 A. Correct.
22 Q. The question is, did you find any?
23 A. I did not.
24 Q. So as far as you could tell, there was no
25 DNA to be tested from the materials you were sent?
26 A. Well, there’s no seminal material.
27 Q. There’s nothing you felt — just to make it
28 clear, I’m not trying to trap you here, but there 3477
1 was nothing that you found and you said, “Ah-hah, we
2 ought to send this off to Sacramento or have a DNA
3 lab do a further analysis of this”; is that correct?
4 A. That’s right.
5 Q. You pretty much packaged it back up and sent
6 it back to Santa Barbara?
7 A. I did, yes.
8 MR. SANGER: All right. Very good. Thank
9 you. No further questions.
10 MR. NICOLA: No questions, Your Honor.
11 THE COURT: Thank you. You may step down.
12 THE WITNESS: Thank you.
13 THE COURT: See, all that worrying for
15 THE WITNESS: I know. Thank you.
The next prosecution witness was Heriberto Martinez, a police officer with the Santa Barbara County Sheriff’s department; he was the individual who fingerprinted Jackson after his arrest in November 2003:
10 DIRECT EXAMINATION
11 BY MR. NICOLA:
12 Q. Good afternoon, sir.
13 A. Good afternoon.
14 Q. Where are you employed, sir?
15 A. I work for the County of Santa Barbara in
16 the sheriff’s department.
17 Q. And have you ever seen the defendant before?
18 A. I have.
19 Q. Have you seen him in person before?
20 A. Yes, I have.
21 Q. Do you recognize the exhibit I put in front
22 of you?
23 A. It’s a fingerprint card.
24 Q. Okay. Turn it over. Did you make that
25 fingerprint card with Mr. Jackson?
26 A. I took these fingerprints.
27 Q. Okay. Is the date written on the back?
28 A. Yes, it is. 3479
1 Q. Okay. And that’s Exhibit 766?
2 A. It’s 767.
3 Q. 767. You took those fingerprints on which
5 A. On November 20th, 2003.
6 Q. And are they the fingerprints of Mr.
8 A. To my knowledge, they are.
9 Q. Okay. Are those inked fingerprints?
10 A. These fingerprints are — I took them on a
11 Livescan machine.
12 Q. Do you recall that?
13 A. Yes.
14 Q. How does the Livescan machine work, just
16 A. When you take a fingerprint, it’s on a glass
17 plate, and it shows up on a monitor, computer
18 monitor, immediately as you take the fingerprint.
19 As you roll the fingerprint from one side — the
20 finger from one side to the next, it shows
21 immediately what you’re taking a picture of.
22 Q. Okay. Do all these images stay up on the
23 screen for some period of time?
24 A. Each one will show up individually. At the
25 end of the taking the set of fingerprints, it will
26 display as it displays here, with all fingerprints
28 Q. Okay. Did you take Mr. Jackson’s 3480
1 fingerprints on that date?
2 A. I did.
3 Q. Okay. And does that record reflect that
4 those are Mr. Jackson’s fingerprints on the writing
5 on the back of that exhibit, 767?
6 MR. SANGER: Objection; calls for hearsay.
7 MR. NICOLA: It’s an official record.
8 THE COURT: Overruled.
9 You may answer.
10 THE WITNESS: I may answer?
11 Q. BY MR. NICOLA: Yes, you may answer.
12 A. Repeat the question, please.
13 Q. The question was, does the back of that
14 document, 767, with the writings, indicate that
15 those are Mr. Jackson’s fingerprints?
16 A. Yes, it does.
17 Q. Okay. And is your name and body number also
18 on that document?
19 A. My last name and my body number are on the
21 MR. NICOLA: Okay. Your Honor, I move 767
22 into evidence.
23 MR. SANGER: No objection.
24 THE COURT: It’s admitted.
25 MR. NICOLA: No other questions.
26 THE COURT: Cross-examine?
Sanger’s cross examination was short and sweet; he merely asked Martinez to verify that the fingerprints shown in court were truly those of Jackson:
28 CROSS-EXAMINATION 3481
1 BY MR. SANGER:
2 Q. Okay. Mr. Martinez, how are you?
3 A. Very well. How are you, sir?
4 Q. I’m doing fine. Thank you for asking.
5 You are a sworn peace officer, or not?
6 A. I’m a sworn officer, yes.
7 Q. Are you 24-hours-a-day sworn or when you’re
8 on duty?
9 A. Only when I’m on duty.
10 Q. So you’re a correctional officer with the
11 sheriff’s department; is that correct?
12 A. That’s correct.
13 Q. You’re not a deputy who patrols or a
14 detective, that sort of thing; is that right?
15 A. That’s right.
16 Q. Okay. And one of your duties at the jail,
17 excuse me, from time to time, is to book people in
18 who come in?
19 A. Yes, sir.
20 Q. And you have other duties there as well; is
21 that correct?
22 A. That’s correct.
23 Q. Sometimes you patrol various areas of the
25 A. I work in most areas of the jail, yes.
26 Q. So you’ve done pretty much anything that a
27 correctional officer would do in the jail, I take
28 it? 3482
1 A. Yes, that’s correct.
2 Q. There you go.
3 And you’re not trained as a latent print
4 examiner, are you?
5 A. No, I’m not.
6 Q. And you — when you’re taking these prints
7 from people and using this Livescan device, you
8 received some training on that from some source?
9 A. Yes, I did.
10 Q. It was on-the-job training?
11 A. I was working at the time I was trained, but
12 it was provided by the Department of Justice.
13 Q. Okay. Somebody from the crime lab in
15 A. No, it was a — may I check my note I have
17 Q. Well, okay.
18 A. It was from the state. Somebody — I took a
19 15-hour class on fingerprints.
20 Q. Okay. And based on that 15-hour class,
21 that’s where you learned how to put people’s hands
22 in this machine and get the prints up on the screen?
23 A. The actual using the Livescan itself was
24 on-the-job training.
25 Q. That’s what I was asking about. So you had
26 a 15-hour class as part of your training to book
27 people in the jail. You had a 15-hour class on how
28 to roll fingerprints, correct? 3483
1 A. That is correct.
2 Q. All right. And then you had the on-the-job
3 training to learn how to use that Livescan device,
5 A. Yes, that’s correct.
6 Q. So one of your supervisors or colleagues
7 said, “Okay, we’ve got this machine. This is how
8 you do it”?
9 A. Yes, that’s correct.
10 Q. All right. And you said you were — to the
11 best of your knowledge, those were Mr. Jackson’s
12 prints. Do you have any question as to whether or
13 not those belong to Michael Jackson?
14 A. As I stated earlier, I’m not an expert
15 witness on the fingerprints, so I know I took his
16 fingerprints on the day noted here.
17 Q. Okay.
18 A. If these are, in fact, the same ones, then,
19 yes, they are his prints.
20 Q. It looks familiar to you is what you’re
22 A. Yes.
23 MR. SANGER: All right. I have no further
25 MR. NICOLA: No redirect, Your Honor.
26 THE COURT: Thank you. You may step down.
27 THE WITNESS: Thank you.
The next prosecution witness was Tim Sutcliffe, a detective in the forensics unit at the Criminal Investigations Division in the Santa Barbara Sheriff’s Department. His duties include responding to crime scenes, conducting crime scene investigations, evidence collection, searching for latent evidence, booking of property, seizing the crime scenes, and sketching. In this excerpt, Det. Sutcliffe describes the testing technique he used to examine the adult magazines for fingerprints:
13 Q. Did you participate in establishing a
14 protocol for finding latent fingerprints in the
15 Jackson — People v. Jackson case?
16 A. Yes, I did.
17 Q. Who else participated in establishing that
19 A. At that time, I believe it was I.D.
20 Technician Torres, myself, and Detective Albert
22 Q. And can you briefly tell the jury, or —
23 yes, just briefly tell the jury what protocol was
24 decided upon to look for fingerprints on magazines
25 that were seized pursuant to a search warrant of
27 A. Based on the type of magazines that we had,
28 mostly of a semi-glossy, glossy nature, it was 3489
1 decided, after lots of consideration, that we would
2 use the super gluing technique, followed by a
3 Scenescope search for latents after the super glue
5 And once that was completed, we would then
6 do a ninhydrin chemical process to hopefully further
7 develop some prints.
8 Q. And did your department prepare a Power
9 Point presentation to guide us through this protocol
10 that was established for this particular case?
11 A. Yes, they did.
The remainder of Det. Sutcliffe’s direct examination consisted of him identifying the pornographic magazines that he tested for fingerprints. At one point, Sanger objected to the further display of additional magazines on the grounds that it was irrelevant, but he was overruled by Judge Melville.
16 Q. Detective, I’d now like to run you through
17 some more photographs, and ask you some particulars
18 about the exact location of these prints.
19 And I think what I’d like to do, Your Honor,
20 is to have you black out the screen for a moment
21 while I change presentations.
22 Thank you.
23 MR. SANGER: And, Your Honor, I’m going to
24 object to showing this next presentation. It’s
25 cumulative, and unnecessary to the presentation. If
26 we could approach, I could explain it.
27 THE COURT: What is it?
28 MR. AUCHINCLOSS: It is a run-through of 3520
1 showing the exact location on the exact page that
2 these prints were found.
3 THE COURT: The objection is overruled.
4 MR. AUCHINCLOSS: All right.
5 MR. SANGER: There’s a 352. I don’t know if
6 I expressly said that, but as the Court will see
7 when it starts, perhaps Your Honor will understand
8 what I’m saying.
9 MR. AUCHINCLOSS: This will take just a
11 THE COURT: Your 352 objection is the undue
12 use of time?
13 MR. SANGER: Well, it’s that, and the
14 subject matter of the pictures is to simply put up
15 more pages of magazines for no apparent reason.
16 They’ve already been identified coming out of
17 certain magazines.
18 MR. AUCHINCLOSS: These are graphic images,
19 Your Honor, and the Court should be aware of that,
20 but they are also graphic images with the
21 fingerprints which we will ultimately show are
22 particularly relevant to this case. And I think
23 it’s important that the —
24 THE COURT: All right. The objection is
26 MR. AUCHINCLOSS: All right. Thank you.
Under cross-examination, Sanger questioned Det. Sutcliffe about the techniques and procedures he used when doing his fingerprint tests; of particular note is the fact that Det. Sutcliffe used a digital camera instead of a film camera, which is better suited for taking photographs of fingerprints. Det Sutcliffe used a digital camera out of “convenience”, and wasn’t “aware” that film cameras are recommended for optimum results by the company that manufactures the Scenescope because they capture details that a digital will miss:
27 Q. So those are digital images taken by a
28 digital camera through a Scenescope, through a 3526
1 scope, right?
2 A. That’s correct.
3 Q. Whereas this one, whatever number it is, the
4 ninhydrin print you just showed us, 317-R, page 54,
5 Latent 1-N, that ninhydrin print is readily visible
6 to the eye, correct?
7 A. That’s correct.
8 Q. And, in essence, the picture that you have
9 there is what you see is what you get. You would
10 see that on at page, if the page were here?
11 A. That’s correct.
12 Q. All right. Now, the issue with regard to
13 producing these particular images when you’re
14 dealing with the Scenescope and the super glue
15 fuming, you have to be careful in super glue fuming
16 not to overfume, correct?
17 A. That’s correct.
18 Q. Because if you overfume, then you can lose a
19 lot of the detail in the print itself?
20 A. That’s true.
21 Q. And in the course of the Scenescope, you are
22 taking a picture through a digital camera; is that
24 A. That’s correct.
25 Q. Now, the reasons you gave us for a digital
26 camera —
27 And we can now turn this off, I think, if
28 that’s all right. 3527
1 Thank you, Counsel, for letting me borrow
3 The reasons you gave for using the digital
4 camera are primarily reasons of convenience,
6 A. Yes.
7 Q. In other words, you’re aware that the
8 company Spex that manufactures the Scenescope
9 recommends that you use a film camera; is that
11 A. Actually, I’m not aware of that. I
12 understand that they offer — I don’t know if they
13 still do, but they actually offered a camera package
14 with their Scenescope, which is a digital camera,
15 and they do also offer a 35-millimeter camera.
16 Q. So do you know whether or not Spex, the
17 company that makes this device, recommends that you
18 use a 35-millimeter-film camera?
19 A. That was not expressed to me, no.
20 Q. Do you know that — and what you might do –
21 I know it’s the very end of the day – but if you
22 could turn a little more towards the microphone,
23 because you’re fading out just a bit there.
24 Are you aware of the studies and literature
25 in the area that suggests that a digital camera will
26 not capture some of the detail that a film camera
27 will capture?
28 A. That’s correct. 3528
1 Q. You use a digital camera because it is
2 easier to scan. In other words, rather than taking
3 a whole bunch of film pictures, you can scan on your
4 monitor and hone in on what you want before you
5 click the picture, true?
6 A. There would no way that we could accomplish
7 the task of going through the photos that we have by
8 using a single-lens reflex camera in the time span
9 that we had.
10 Q. Okay. The question was, though, that you
11 used the digital camera because it allows you, I
12 think you told us on direct examination, to scan
13 with the monitor —
14 A. Correct.
15 Q. — right?
16 So, in fact, in real time, as your
17 Scenescope goes around the page and you find
18 something you like, you can make sure you got it
19 centered, and once it’s centered, based on what
20 you’re looking at in your monitor, you can click the
22 A. That’s correct.
23 Q. If you were going to use a film camera, you
24 would either have to take pictures of the entire
25 page, or you’d have to look through the Scenescope,
26 figure out what you’re going to take a picture of,
27 and then click the picture; is that correct?
28 A. That’s correct. 3529
1 Q. All right. You also said that the digital
2 camera is a mid-range camera as far as the
3 definition; is that correct?
4 A. That’s correct. At the time that camera was
5 purchased, it was the top of the line that our
6 agency would be able to — be able to afford.
7 Q. Okay. And like everything else, after 18
8 months, you need to buy a new one; is that right?
9 Everything else electronic, it seems.
10 All right. But in any event, it’s about
11 mid-range as far as the definition; is that correct?
12 A. Correct.
13 Q. And you also indicated that it was a matter
14 of convenience that you could take the digital
15 pictures and then you could simply download them to
16 a disk, correct?
17 A. They were downloaded to a hard drive and
18 then a copy was made, correct.
19 Q. So the first step is, you downloaded it onto
20 the hard drive for your forensic computers that you
21 have there?
22 A. Right.
23 Q. And then you would make a disk from the hard
25 A. Correct.
8 Q. With the digital camera, you tend to not be
9 able to pick up the pores and the shape of the
10 ridges as well as a film camera; isn’t that correct,
12 A. Actually, we were able to get several prints
13 with this camera that did show pore detail.
14 Q. In general, a film camera is better at
15 getting the pores and the ridge shapes than the
16 digital camera, correct?
17 MR. AUCHINCLOSS: Object as to foundation.
18 THE COURT: Sustained.
19 MR. SANGER: Ahh. There you go.
20 MR. ZONEN: Your Honor, could the Court and
21 counsel remain just one more moment after the jury’s
23 THE COURT: Yes.
Det. Sutcliffe’s cross-examination continued the next day. After the court adjourned for the day, the attorneys had a meeting with Judge Melville outside the presence of the jurors, during which Zonen announced that George Lopez and his attorney had agreed to drop their opposition to their subpoena, and that he would testify for the prosecution as scheduled in the next few days.
1 (The following proceedings were held in
2 open court outside the presence and hearing of the
5 MR. ZONEN: Thank you, Your Honor.
6 I just wanted to notify the Court, we were
7 able to resolve one of the issues that was pending
8 before the Court.
9 Over the last break, I spoke with Mr. George
10 Blancarte, who is George Lopez’s attorney, and we
11 are agreeing they are withdrawing their opposition
12 to the subpoena that had been issued by the defense.
13 In fact, Mr. Lopez will be testifying for the
14 prosecution, we expect, on Monday.
15 THE COURT: Who’s going to testify tomorrow?
16 MR. ZONEN: We do have a list. Would you
17 like to know the list for tomorrow?
18 THE COURT: Yeah, I’d like to know.
19 MR. SNEDDON: Well, we’ll finish this
20 witness’s testimony, Your Honor, and then perhaps
21 Miss Romero, and then Detective Spinner with the
22 fingerprints. And we figured that would take us
23 through the day. And I think we talked in chambers
24 about if we didn’t have all the way through the day,
25 that that was okay with you.
26 THE COURT: Okay.
27 MR. AUCHINCLOSS: We also have some other
28 fingerprint techs that will be testifying. 3534
1 MR. SNEDDON: They’re minor. They’re short
3 THE COURT: All right. Thank you.
4 MR. ZONEN: Thank you.
5 (The proceedings adjourned at 2:30 p.m.)
To be continued: https://michaeljacksonvindication2.wordpress.com/2012/08/27/march-25th-2005-trial-analysis-timothy-sutcliffe-cross-examination-alicia-romero-nancy-torres-michelle-shelley-james-wittenbrock-and-robert-spinner-direct-examination-part-1-of-2/