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March 29th, 2005 Trial Analysis: Robert Spinner (Cross Examination), Jamie Masada, Cynthia Bell (Direct & Cross Examination), Part 1 of 3

September 23, 2012

Det. Spinner’s cross examination by Robert Sanger continued today, and one of the first topics that Spinner was questioned about was his agency’s lack of a proficiency rating from the Collaborative Testing Service due to the fact that they don’t submit to proficiency testing; this was an attempt to discredit the fingerprint evidence and show the ineptitude of the prosecution:

22 Q. Were you ever subjected to proficiency


23 testing?


24 A. Not officially. However, every time we do a


25 latent print examination we get a validation. That


26 can be a form of proficiency testing.


27 Q. Sir, you know what I mean by “proficiency


28 testing,” is that correct? 3947


1 A. Yes, sir. There are agencies which send in


2 blind tests and then you do the tests and send it


3 back and they’re graded.


4 Q. Were you ever subject to proficiency


5 testing?


6 A. No, sir.


7 Q. The Santa Barbara Sheriffs does not submit


8 itself to proficiency testing in fingerprint


9 examination; is that correct?


10 A. That’s correct, sir.


11 Q. And they’re — are you familiar with the


12 agencies that do proficiency testing?


13 A. No, sir, I don’t know any right now who are


14 actually doing proficiency testing from personal


15 knowledge.


16 Q. All right. You’ve indicated, though, that


17 you have gone to a number of meetings and some


18 training sessions with regard to latent print


19 examination, correct?


20 A. Yes, sir.


21 Q. And so you attempt to keep up with the


22 literature, as it were, in the field; is that right?


23 A. As much as possible, yes, sir.


24 Q. And in the course of your training and


25 experience, you’re aware that the Law Enforcement


26 Assistance Administration, the LEAA, federal agency,


27 did proficiency testing; is that correct?


28 A. No, I’m not sure. 3948


1 Q. Were you aware that Collaborative Testing


2 Service, a private company, was contracted to do


3 proficiency testing from 1995 to 2003?


4 A. I know they do proficiency testing. I don’t


5 know who they did it for or if they were ever


6 contracted through anybody.


7 Q. Okay. In the course of your studies with


8 regard to latent print examination, you’re aware


9 that the proficiency testing across the country


10 turned up a number of misidentifications, a


11 significant number, correct?


12 MR. NICOLA: I’m going to object, lack of


13 foundation, Your Honor.


14 THE COURT: Foundation, sustained.


15 MR. SANGER: Okay.


16 Q. Are you aware that there have been issues


17 with regard to — let’s just take false positives


18 coming up in proficiency testing in this country.


19 A. I don’t know what the rate of any


20 proficiency testing was per agency or per test, no,


21 I don’t.


22 Q. Okay. And your agency doesn’t have any


23 percentage or rating because it doesn’t submit to


24 proficiency testing; correct?


25 A. That’s correct, sir.


26 Q. All right. Now, what I’m asking about, is


27 you’re aware in the proficiency testing, the blind


28 testing that you have talked about, there have been 3949


1 a number of instances of false positives showing up;


2 is that correct?


3 MR. NICOLA: Objection, lack of foundation,


4 Your Honor.


5 THE COURT: Sustained.


6 Q. BY MR. SANGER: Are you aware of whether or


7 not — are you aware of any results — I’m not


8 talking about the specific numerical results, but


9 generally in your reading, in your training and


10 experience, any results of the proficiency testing


11 over the last few years?


12 MR. NICOLA: Objection, lack of foundation,


13 Your Honor.


14 THE COURT: Overruled.


15 THE WITNESS: The only tests that I am aware


16 of —


17 THE COURT: Just a minute.


18 THE WITNESS: Excuse me.


19 THE COURT: There’s a question that just


20 requires a “yes” or “no” answer.


21 Read the question back to him.


22 (Record read.)




24 Q. BY MR. SANGER: And were you aware that


25 false positives have shown up in that proficiency


26 testing?


27 A. I can’t remember if there were false


28 positives brought up or whether it was just — they 3950


1 just didn’t send the test back. I know there was a


2 problem.


3 Q. Okay. Now, is this part of the problem —


4 or let me withdraw that. Is this problem that you


5 just described part of the mission of SWGFST to try


6 to remedy?


7 MR. NICOLA: I’m going to object as to


8 vagueness, Your Honor.


9 MR. SANGER: Let me rephrase it, because it


10 was an odd sentence at best.


11 THE COURT: Go ahead.


12 Q. BY MR. SANGER: Is SWGFST attempting to


13 remedy problems associated with proficiency testing


14 results?


15 A. I don’t know.

Next, Sanger began to question Det. Spinner about his knowledge of other high profile cases where fingerprint evidence was botched by prosecutors, in part due to their use of digital imaging (which is the same technique that Jackson’s prosecutors used in this case):

16 Q. You’re also aware that in the last five, six


17 years, there have been a number of particularly


18 notable cases in which there have been false


19 positives; is that correct?


20 A. That’s correct.


21 Q. There was one in 1999 in Scotland involving


22 a police officer by the name of Shirley McKee; is


23 that correct?


24 A. I’m aware of that case, yes, sir.


25 Q. And that’s a case where the Scotland


26 criminal records office, which is their law


27 enforcement or I.D. tech agency, formed an opinion


28 that there was a positive match; is that correct? 3951


1 A. That’s correct.


2 Q. And the police officer, Miss McKee, was


3 prosecuted for murder based on that print


4 identification; is that correct?


5 A. No, I believe she was prosecuted for


6 perjury.


7 Q. Okay. And at the — after the case was


8 over, 170 other print examiners looked at the print


9 and said they didn’t match; is that right?


10 A. I know a great number looked at the print.


11 I don’t know the exact number. But almost everybody


12 agreed that it did not match.


13 Q. Almost everybody in the Scottish records


14 office to this day maintains that it’s a positive


15 I.D., correct?

16 A. That’s my understanding.


17 Q. This is part of what you described as a


18 subjective aspect of making print identifications,


19 correct? In other words, people form an opinion,


20 and that’s the basis for a positive identification,


21 correct?


22 A. Yes, it’s — yes.


23 Q. And you’re also aware of the case last year


24 involving Brandon Mayfield; is that right?


25 A. That’s correct, sir.


26 Q. Brandon Mayfield was a lawyer in Oregon,


27 correct?


28 A. Correct. 3952


1 Q. And he was placed in custody for two months


2 based on a fingerprint identification, correct?


3 A. I thought it was two weeks. That was my


4 reading.


5 Q. All right. Well, he was placed in custody


6 long enough to be an interference with his life; is


7 that correct?


8 MR. NICOLA: Objection. That’s


9 argumentative, Your Honor.


10 THE COURT: Sustained.


11 Q. BY MR. SANGER: He was placed in custody for


12 some period of time?


13 A. Correct.


14 Q. And he was accused of being involved in the


15 Madrid bombing; is that correct?


16 A. Correct.


17 Q. And that was based on the FBI making a


18 positive identification of his fingerprint on


19 something associated with that bombing; is that


20 correct?


21 A. That’s correct.


22 Q. And they had three FBI fingerprint — latent


23 print examiners who compared the print and agreed


24 that it was positive; is that correct?


25 A. That’s correct.


26 Q. And they had — they identified in excess of


27 16 points of identification; is that correct?


28 A. I don’t think it was a number quite that 3953


1 high, but I don’t know the exact number, sir.


2 Q. All right. And eventually the Spanish


3 police identified the fingerprint to an Al Qaeda


4 member; is that correct?


5 A. I know they did identify it. I wasn’t quite


6 sure — I don’t know who they identified it to, but


7 I believe it was somebody involved in an


8 organization over there.


9 Q. And Mr. Mayfield — it turns out at this


10 point Mr. Mayfield had absolutely nothing to do with


11 it; is that right?


12 A. I don’t know if he did or not. I don’t know


13 if he was totally exonerated or whether he’s still


14 waiting.


15 Q. Okay. You’re aware that the fingerprint —


16 you’re aware that the FBI has indicated that they


17 made a mistake and it was not his fingerprint,


18 correct?


19 A. That’s correct, sir.


20 Q. And they, in part, blamed it on digital


21 imaging?


22 A. Initially, yes, sir.


23 Q. And then they changed that opinion about


24 digital imaging after the fingerprint community


25 became concerned that that would undermine digital


26 comparisons, correct?


27 A. I don’t know the answer to that question.


28 Q. You’re also aware of Judge Pollack’s 3954


1 decisions in the – I don’t know how you say it –


2 Llera Plaza — it’s L-l-e-r-a Plaza – case; is that


3 correct? It’s an Eastern District of Pennsylvania.


4 A. I know — I read about Judge Pollack, but I


5 don’t recognize that particular case by that name.


6 Q. All right. In any event, there was a case


7 in Pennsylvania that Judge Pollack had made a


8 determination with regard to fingerprints,


9 admissibility of fingerprints, correct?


10 A. In 1999, yes, sir.


11 Q. Are you aware of the opinions in January and


12 March of 2002?


13 MR. NICOLA: Objection. Relevance and calls


14 for hearsay.


15 THE COURT: Overruled.


16 You may answer “yes” or “no.”


17 THE WITNESS: I can’t say “yes” to that.


18 I don’t remember.


19 Q. BY MR. SANGER: All right. In any event,


20 these matters that we talked about, Shirley McKee,


21 the Mayfield, Judge Pollack’s ruling, whenever it


22 was, those have been the subject of conversations,


23 debate and concern in the latent print examination


24 community; is that correct?


25 A. That’s correct.


26 Q. Now, you said that you had taken a couple of


27 courses from Sergeant Ashbaugh; is that right?


28 A. That’s correct. 3955


1 Q. In fact, one course you took was actually in


2 January of 2005, this year; is that correct?


3 A. That’s correct.


4 Q. And Sergeant Ashbaugh is a sergeant with the


5 Royal Canadian Mounted Police; is that correct?


6 A. That’s correct.


7 Q. He coined the phrase “ridgeology”; is that


8 right?


9 A. That’s correct.


10 Q. Okay. And actually wrote a book about


11 ridgeology; is that right?


12 A. “Quantitative-Qualitative Friction


13 Analysis,” yes, sir.


14 Q. And he calls it “ridgeology”?


15 A. That’s what he calls the system.


16 Q. All right. And his — without going into —


17 you can go into as much detail as you want, but


18 without going into unnecessary detail, his theory is


19 to get away from simply matching Galton points to do


20 something more sophisticated in analyzing prints; is


21 that correct?


22 A. The fingerprint community started getting


23 away from just using strictly Level II detail or


24 Galton points some time ago.


25 What Mr. Ashbaugh said was that — he coined


26 the phrase “ridgeology” in an attempt to explain how


27 latent fingerprint examiners do their work, because


28 nobody had done this up to this time, because a lot 3956


1 more takes place in the latent fingerprint


2 examination than just counting, as you say, Galton


3 details.


4 Q. All right. So he was trying to explain how


5 latent fingerprint examiners can come up with an


6 opinion, an ultimate opinion, that there’s either a


7 positive identification, or there’s no


8 identification, or it’s inconclusive; is that


9 correct?


10 A. Yes.


11 Q. It all goes back to a couple basics, though.


12 Whether you go back to Galton in 1886 or you talk


13 about Sergeant Ashbaugh, the first thing you’re

14 talking about with fingerprints is the permanency?


15 A. That’s correct.


16 Q. The idea that a fingerprint is permanent


17 from birth to death absent some of the things you


18 talked about, I mean mutilation, or something else,


19 correct?


20 A. That’s correct.


21 Q. The second is that two fingerprints — no


22 two fingerprints will be identical; is that correct?


23 A. The uniqueness theory, yes, sir.


24 Q. So it’s unique. Now, it turns out, based on


25 experiences in the last few years in particular,


26 that two prints can be quite similar, correct?


27 A. Two prints can be similar, but they cannot


28 be the same. 3957


1 Q. Well, that’s the theory.


2 A. I think that’s a proven fact over 100 years.


3 Q. In other words, over the last 100 years your


4 position is that no two full prints have ever been


5 found to be absolutely identical, right?


6 A. That’s correct.


7 Q. But there are prints, you would agree, that


8 match on numerous Galton points, or points of


9 identification, and yet are not, in fact, from the


10 same person, correct?


11 A. I have seen four match before. I found a


12 dissimilarity. But there can be similarities, yes.

In a brief moment of levity, Sanger stated that he didn’t want to revisit the details of the ACE-V fingerprint technique because he didn’t want to “bore everybody to tears”; truer words have never been spoken! I read through his questions about that subject, and I almost fell asleep! That testimony is the perfect cure for insomnia!

16 Let’s talk about the ACE-V process that Mr.


17 Ashbaugh’s talked about, and I believe you say you


18 use; is that correct?


19 A. As far as I know, the basic — the


20 fingerprint community uses that methodology.


21 Q. All right. And when you’re talking about


22 ACE-V — we’ve gone through it so I don’t want to


23 bore everybody to tears — I’m hearing twittering


24 behind me. It may be too late.


25 (Laughter.)


26 MR. SANGER: All right.

In an attempt to further cast doubts on the integrity of the fingerprint testing process, Sanger questioned Spinner about the fact that the testing was done essentially “in-house”, instead of being outsourced to an independent third party, such as the Department of Justice or the FBI:

27 Q. I take it you didn’t analyze it while he was


28 still in custody, did you? 3961


1 A. I saw that print initially a couple of


2 months ago on the Internet.


3 Q. Okay. So you weren’t in a position to call


4 them up, and say, “Hey, you guys screwed up on


5 this”?


6 A. I’d like to have been, but, no.


7 Q. And in fact, in Santa Barbara, in this


8 particular case, you decided to do this fingerprint


9 analysis essentially in-house; is that correct?


10 A. That’s what I was told to do, yes.


11 Q. Okay. And you could have — I say “you.”


12 Let me withdraw that. A determination could have


13 been made by somebody in the chain of command from


14 the District Attorney’s Office down through the


15 chain of command, somebody could have made a


16 determination to send the prints out to be analyzed


17 by some other agency, correct?


18 A. That’s correct.


19 Q. The Department of Justice, California


20 Department of Justice has latent print examiners,


21 does it not?


22 A. That’s correct.


23 Q. And you have in the past sent prints to the


24 DOJ to do latent print comparison, have you not?


25 When I say “you,” I mean your agency.


26 A. If we did, it was some time ago. I don’t


27 recall anything recently that we — that I know that


28 was sent to the Department of Justice. 3962


1 Q. Okay. But you’re aware that today and in


2 the fall of last year, 2004, the Department of


3 Justice would provide latent print analysis services


4 at the request of the Santa Barbara Sheriff’s


5 Department; is that correct?


6 A. Yes, sir.


7 Q. Okay. And you could have sent the prints to


8 the FBI; is that right?


9 A. I could have. But that option was most


10 likely available. I don’t know.


11 Q. Okay. And again, I don’t mean you


12 personally. But if it was decided in the chain of


13 command, somewhere from the District Attorney down


14 through your chain of command, somebody could have


15 made that request of the FBI; is that correct?


16 A. I would assume so.


17 Q. Okay. Excuse me one second.


18 Did you have any discussion with your


19 superiors or colleagues about sending the prints in


20 this case to the Department of Justice in


21 Sacramento?


22 A. I, at one time, said it might be an option


23 because of the volume of material that we were


24 dealing with.


25 Q. I take it you were overruled or it was


26 determined that would not happen?


27 A. As far as I know, yes.


28 Q. Were you involved in any discussions about 3963


1 sending the prints to the FBI?


2 A. No.


3 Q. Now, we had Dr. Cantu from the Secret


4 Service come to court here a little while ago. Do


5 you know him?


6 A. I met him a week ago, yes.


7 Q. He came out here to testify, and you had a


8 chance to talk to him?


9 A. About the Scenescope, yes.


10 Q. Other than his coming out here to testify


11 for this jury, did he have any other involvement or


12 provide any other assistance to your office in


13 evaluating the evidence in this case?


14 A. As far as I know, he did not.


15 Q. And I take it the United States Secret


16 Service also had no role in this until Dr. Cantu


17 came out to testify here; is that correct?


18 A. That is my understanding.

In this excerpt, Det. Spinner testified that out of the hundreds of adult magazines that were confiscated from Neverland, there were only twelve that were identified as having positive matches for fingerprints:

19 Q. Now, I’m not going to go through everything,


20 but what I’ll do — let me come over here.


21 What I’m going to do, if the Court will


22 permit me very loudly for just a moment, I’m going


23 to hold up one of the boxes. Remember these boxes


24 with the white notebooks?


25 A. Yes, sir.


26 Q. And I think there were three or four of


27 these boxes that you went through; is that correct?


28 A. I wasn’t counting the boxes. I was looking 3964


1 at the magazines.


2 Q. All right. But you went through quite a


3 number of these notebooks?


4 A. Yes, sir, I did.


5 Q. All right. And after spending a couple of


6 hours going through those boxes here for the Court,


7 the fact of the matter is, that out of all of those


8 boxes, there were 12 magazines from which you


9 performed a comparison that resulted in your opinion


10 that there was an identification; is that correct?


11 A. I’d have to look at my notes to count the

12 number of magazines.


13 Q. Do you have your notes here?


14 A. Yes, sir, I do. I have a sheet right here.


15 Q. Yes. Take a look at that.


16 A. That’s correct, sir.


17 Q. Okay. And before you started going through


18 each one of those, you knew which 12 were the 12


19 that you actually formed an opinion that there was a


20 positive identification; is that correct?


21 MR. NICOLA: I object as to vague, Your


22 Honor.


23 MR. SANGER: The witness looks like he


24 doesn’t understand it, so let me rephrase it, Your


25 Honor.


26 THE COURT: All right.


27 MR. SANGER: Thank you.


28 Q. In other words, before we started going 3965


1 through — Mr. Nicola got up and went through each


2 one of those binders one at a time?


3 A. That’s correct.


4 Q. Several boxes?


5 A. Yes, sir.


6 Q. Before he did that, you would have been able


7 to say, “Well, look, there’s 12 of those binders in


8 which there was a positive identification in my


9 opinion,” would you not?


10 A. That’s correct.


11 MR. NICOLA: Objection. What’s the


12 relevance to that question?


13 THE COURT: Overruled.

Here’s another example of the prosecution’s mishandling of the fingerprint evidence: in December 2003, Detective Albert Lafferty wrote a report requesting that the Forensics Bureau do a fingerprint analysis of the evidence AT THAT TIME, but it wasn’t done until almost a year after the Neverland raid, so Sanger questioned Det. Spinner if long delays like this were common in his other cases:

17 Q. Were you aware that there was a — well, let


18 me ask you this: Did you review the reports of


19 other officers?


20 A. No, sir.


21 Q. Not even people involved in — in the print


22 identification aspect of the case, preservation?


23 A. If I had a question, I went directly to the


24 officer or the person involved and asked.


25 Q. All right. So were you aware that in


26 December of 2003, that Detective Lafferty wrote a


27 report requesting that the Forensics Bureau please


28 do a fingerprint analysis of this same evidence? 3969


1 A. No, I am not.


2 Q. Now, I understand that you were essentially


3 retired and coming back and doing some part-time


4 work during that period of time. But based on your


5 training and experience working in the Forensics


6 Bureau, when somebody makes a request, another


7 officer makes a request for a fingerprint analysis,


8 is that something that the Forensics Bureau is


9 supposed to attend to?


10 A. The Forensics Unit is a more — I would say


11 is more of a reactionary unit than an offensive


12 unit. So he would have run his request up the chain


13 of command, and then it would be up to whoever’s up


14 making those decisions, and then decide how the unit


15 was to proceed.


16 Q. Based on your experience — forget about


17 this case for a moment.


18 Based on your experience, you said you


19 worked other cases where there were fingerprints,


20 correct?


21 A. Yes, sir.


22 Q. And you actually did fingerprint analysis


23 and comparison, correct?


24 A. That’s correct, sir.


25 Q. All right. And in cases where there are


26 fingerprints on objects, or there may be


27 fingerprints on objects that are seized, is it


28 customary for somebody in law enforcement to say, 3970


1 “Preserve this so that it can be checked for


2 prints”?


3 A. When prints — I don’t know how to answer


4 this. Not all the time, no. It depends. It’s up


5 to the investigating officer as to what action he


6 wants to take with his evidence, I guess would be a


7 way to put it.


8 Q. All right. If an investigating officer


9 looks at items out at the scene at the time of the


10 seizure, and forms the opinion that somebody ought


11 to check these things for prints, do you expect that


12 to be communicated to the Forensics Unit?


13 A. Yes, sir. Normally they would write up a


14 work request on one of our forms. Send it in. The


15 evidence would be booked in, and then we’d deal with


16 it.


17 Q. And ordinarily that would occur very early


18 in the proceedings, correct?


19 A. Sometimes — this is the first time I’ve


20 seen it where it’s come up a year later.


21 Q. It came up a year later here, didn’t it?


22 MR. NICOLA: Objection; argumentative.


23 THE COURT: Sustained.


24 Q. BY MR. SANGER: Other than this case, have


25 you seen prints analyzed by your department a year


26 later that were intended to be analyzed at the time


27 the item was seized?


28 A. I did one two and a half years later, but I 3971


1 don’t know what the intent was when it was seized.


2 But sometimes there’s a timeline that runs.


3 Q. All right. So I’m talking about a case


4 where you’re investigating out in the field, the


5 lead detective or the detective assigned to seize


6 the evidence, says, “Yeah, we better check that for


7 prints.” Isn’t it the policy and procedure of your


8 office, the sheriff’s office, to have those items


9 sent to the Forensics Unit within a reasonably short


10 period of time to do the print analysis?


11 A. Again, that’s up to the investigator in


12 charge of that particular case as to what time, when


13 they want to run, or what they want to do, what


14 tests, or what’s done.


15 Q. And you would expect that there would be


16 some request, there would be a forensic request; is


17 that right? Let me withdraw that so we can be


18 clear.


19 There’s a form that you have in your office


20 that can be filled out by the lead detective, or


21 whoever seizes the evidence, to request forensic


22 analysis of an item of evidence; is that correct?


23 A. That’s correct, sir.


24 Q. All right. Did you see any such forms in


25 this case?


26 A. I received a work form filled out in, I


27 believe it was — July was the date on it.


28 Q. July of 2004? 3972


1 A. Yes, sir.


2 Q. So you did not see a forensic request for


3 fingerprints that was dated before July of 2004; is


4 that correct, sir? In this case.


5 A. No. And I had very little contact with the


6 unit prior to July of 2004.


7 Q. I’m asking if you saw — I’m not asking


8 whether or not you had contact. The question is,


9 did you see a forensic request form that was dated


10 anytime prior to July of 2004?

11 A. No, sir, I did not.

Under redirect examination, Nicola questioned Det. Spinner about his knowledge of the request to fingerprint the magazines, and tried to diminish the doubts that the jury had about the lengthy delay in the testing by stating that DNA tests were done first in order to not contaminate the fingerprint evidence:

5 Now, Mr. Sanger asked you some questions


6 about when and if you knew when a request for


7 forensic testing came in regarding the magazine


8 seized from the defendant’s ranch.


9 A. Correct.


10 MR. SANGER: I’m going to object. Actually,


11 that misstates the evidence. It was fingerprint


12 examination.


13 MR. NICOLA: I believe he used the words


14 “forensic testing,” Your Honor.


15 THE COURT: The objection’s overruled.


16 Q. BY MR. NICOLA: Does forensic testing


17 include sending items out for DNA analysis?


18 A. Yes, it does.


19 Q. Okay. And in the grand scheme of things, if


20 you were going to do a DNA analysis on the same


21 magazines that you would later check for


22 fingerprints, which analysis would be conducted


23 first?


24 A. The DNA analysis.


25 Q. And why is that?


26 A. Because the testing process for fingerprints


27 and the development process could contaminate or


28 destroy possibly any DNA. 3982


1 Q. And by “contaminate” what do you mean?


2 A. Possibly alter the structure. Since


3 ultraviolet light was being used, it could have


4 damaged the DNA.


5 Q. And is contamination essentially


6 destruction?


7 A. It can be.


8 Q. Okay. With respect to fingerprint analysis,


9 if you contaminate a fingerprint, what have you done


10 for its usefulness as a print that you can make any


11 conclusions about?


12 MR. SANGER: I’m going to object. That’s


13 vague as phrased.


14 THE COURT: Sustained.


15 Q. BY MR. NICOLA: Let me reask. With respect


16 to a fingerprint, if you contaminate it, what have


17 you done to its usefulness?


18 A. It could possibly make it unusable.


19 Q. Okay. And what kind of — forms of


20 contamination can affect a fingerprint in that


21 respect?


22 A. Any activity which would destroy the ridge


23 detail or blur the ridge detail so it could not be


24 observed or traced or used for a latent comparison


25 purpose. Cloud the clarity of the print.


26 Q. Okay. With respect to the DNA testing, do


27 you have experience sending items to the Department


28 of Justice laboratory in Goleta for that very 3983


1 purpose?


2 A. I have sent a few out, but it’s been several


3 years.


4 Q. Okay. In your experience, does DNA testing


5 or screening from potential DNA testing take some


6 period of time?


7 A. To my recollection —


8 MR. SANGER: Objection; lack of foundation.


9 THE COURT: Sustained.


10 Q. BY MR. NICOLA: Sergeant Spinner.


11 A. Yes.


12 THE COURT: The objection was sustained.


13 Q. BY MR. NICOLA: Do you have knowledge of how


14 long the items that you’ve sent to the Department of


15 Justice for DNA testing have taken to come back?


16 MR. SANGER: Objection, lack of foundation


17 and relevance.


18 THE COURT: The foundation objection is


19 sustained.


20 Q. BY MR. NICOLA: You have sent items to the


21 DNA lab in Goleta, correct, for testing?


22 A. Yes, sir.


23 MR. SANGER: Asked and answered.


24 THE COURT: Overruled. Next question.


25 Q. BY MR. NICOLA: You requested that DNA


26 examination be done on the items that you’ve sent?


27 A. We sent items to the DOJ at the request of


28 detectives for DNA analysis. 3984


1 Q. Okay. And in your experience, do you find


2 the turnaround time for when you receive the items


3 back to be a long period or a short period?


4 MR. SANGER: Objection. Vague and lack of


5 foundation, relevance to this case.


6 THE COURT: Overruled.


7 You may answer.


8 THE WITNESS: Depending on which lab was


9 used, it could take quite some time.


10 Q. BY MR. NICOLA: With respect to the


11 magazines and other sexually explicit content that


12 you were asked to conduct fingerprint experiments,


13 or fingerprint examinations on, do you know whether


14 any of those items had been sent to DOJ in early


15 February of 2004 for DNA testing?


16 MR. SANGER: Objection. This was asked and


17 answered on direct. Beyond the scope.


18 THE COURT: Overruled.


19 Q. BY MR. NICOLA: You may answer.


20 A. I knew that items were at the DOJ lab for


21 testing. I don’t know when they were actually sent


22 out.


23 Q. Okay. So you knew the time frame they had


24 been sent out was —


25 A. Prior to my attempting to —


26 MR. SANGER: Excuse me. I’m going to


27 object. It’s not a question. No question pending.


28 THE COURT: Sustained. 3985


1 MR. NICOLA: Okay.


2 THE COURT: Let’s take our morning break.


3 (Recess taken.)

Nicola took one last shot at the defense by insinuating that if the fingerprint evidence was as shoddy as they claim it is, then they would have had it tested by their own defense experts!

9 Q. BY MR. NICOLA: Typically in a fingerprint


10 case, the defense has the opportunity to reexamine


11 any of the work that you’ve done by their own


12 experts, correct?


13 A. That’s correct.


14 MR. NICOLA: I have no further questions.

Under recross-examination, Det. Spinner admitted that he couldn’t determine if either Star or Gavin opened and looked through the contents of the briefcase:

4 Q. Now, Exhibit 470, I’ll just hold it up here.


5 Exhibit 470 is that briefcase, right?


6 A. That’s correct, sir.


7 Q. All right. And the items that you formed an


8 opinion on involving your opinion that the prints


9 were from Gavin and Star Arvizo, all were derived


10 from this briefcase; is that correct?


11 MR. NICOLA: Objection. Misstates the


12 evidence; lack of foundation.


13 THE COURT: Overruled.


14 You may answer.


15 THE WITNESS: Part of the items came — of


16 the prints that were made came from the items that


17 we got back from Department of Justice on 8-3. And


18 the rest of them, I believe, came out of the black


19 briefcase, which I got on 10-5.

20 Q. BY MR. SANGER: Okay. They were all 317,


21 correct?


22 A. They were all 317, yes.


23 Q. So your understanding is, based on your


24 experience in your office, that they’re all Item No.


25 317. They would have come out of Item No. 317,


26 right?


27 A. Correct.


28 Q. And this briefcase was Item No. 317. It’s 3995


1 now Exhibit 470, but it was Sheriff’s Item 317,


2 right?


3 A. That’s correct.


4 Q. All right. And you have no way of knowing


5 if and when or whether or not Star or Gavin Arvizo


6 opened this briefcase and looked through it, do you?


7 A. I have no knowledge what happened to that


8 briefcase prior to 10-5.


9 MR. SANGER: All right. I have no further


10 questions.


11 THE COURT: Anything else?


12 MR. NICOLA: No, Your Honor.


13 THE COURT: All right. Thank you. You may


14 step down.

The next prosecution witness was Jamie Masada, the owner of the Laugh Factory in Los Angeles. In this excerpt, he describes his comedy camp for underprivileged children:

23 Q. Okay. Now, tell me about the comedy camp.


24 What is that?


25 A. The comedy camp is for underprivileged kids,


26 the kids that they don’t — the kids that are


27 disturbed or underprivileged, and that’s how I


28 created for. 4000


1 Q. And what is it?


2 A. It’s bringing the kid in, and bringing —


3 asking all of the well-known comedian to come in to


4 teach them a little bit of confidence and give them


5 a little bit of confidence through life. Some of


6 them, they might become a comedian. Some of them


7 might not become a comedian. But you give them


8 confidence. You give them this big star teaching


9 them how to perform, how to go through life and be


10 confident in life.


11 Q. Are these principally underprivileged


12 children?


13 A. Most of them underprivileged children, yes,


14 sir.


15 Q. And what does that mean? I mean, what is


16 the criteria for somebody to get into the comedy


17 camp?


18 A. If — you know, if I see the kid, for


19 example, they are shy, they don’t have — they


20 cannot — like, they don’t have ability to talk in


21 public.


22 Or I see people that they really come from


23 very poor family, or single family, or — most of


24 them they come out there, they don’t even have


25 family. They are living in group home. They


26 live — stay in foster homes. And that’s the type


27 of kid we get in comedy.


28 But sometime, you know, you get a few of 4001


1 them that they are — you know, they are — what you


2 call them? They’re talented and they’re kids, and


3 their parents push them in, and you bring them in,


4 and they are — you know, we don’t — we overlook


5 that they are not poor. But most of them, they are


6 underprivileged people.

Here is where he describes his first meeting with the Arvizo family:

24 Q. Do you know the Arvizo family?


25 A. Yes, sir, I do.


26 Q. And how did you become familiar with the


27 Arvizo family?


28 A. I think, if I’m not mistaken, the first time 4006


1 I met Arvizo family was — was the first time we had


2 a comedy camp at the club. And I believe, if I’m


3 not mistaken, is a gentleman called Eric Site. He


4 was from Los Angeles County Dis — the Los Angeles


5 County Children and Family Services.


6 He recommend them, or teacher recommended to


7 him, and he brought them in, or he told the mother


8 to bring them in, and they came in.


9 And the first time I met them, they went on


10 the stage and I watched them, what they doing,


11 what’s going on. And it was at that point was I


12 believe on the time that I was doing interview.


13 Eric Site was present, a lady called Julia Now was


14 present. It was Robert Harper was present. It was


15 Jo-Jo was present.


16 Q. Who are you talking about? These are people


17 who evaluated their entry?


18 A. These are the people that sit back watching


19 and seeing it. And it’s a gentleman called Patrick


20 Press (sic) from FOX TV was there that year, was


21 doing a — what you call — was doing a documentary


22 about comedy camp. His name is Patrick Press (sic).


23 And he was with his filmmaker, with a cameraman.


24 Q. Did you interview the Arvizo family to


25 determine whether they should come into the camp?


26 A. Yes, sir, I did.


27 Q. And how many kids were there?


28 A. Three. 4007


1 Q. Can you name them for us?


2 A. Yes. It was Star. It was Davellin. It was


3 Gavin.


4 Q. Okay. Did you meet their mother?


5 A. Yes, I did.


6 Q. And what is her name?


7 A. Janet.


8 Q. Did these kids come for the entire camp


9 academy, from the beginning to the end, and


10 graduate?


11 A. I think they came in except one time, as I


12 recall, because they did not have enough money to


13 get bus to come in. They were coming in with bus.


14 Q. Coming with what?


15 A. Except one time they did not have money, or


16 something to get the bus to come in.


17 Q. Oh, take the bus.


18 A. Take the bus to come in.


19 Q. So you think they may have missed one


20 session?


21 A. I think I — may I take some water, if you


22 don’t mind? I’m sorry. I’ve got a cold. I’m


23 trying —


24 Q. You’re not alone.


25 A. If you wanted some Cold-Eze, I have some


26 Cold-Eze for you.


27 (Laughter.)


28 A. All right, sir. 4008

Here is when Masada first learned of Gavin’s illness:

14 Q. All right. At some point in time, did you


15 learn that one of the children became ill?


16 A. Not after I heard — they graduated.


17 Everything went perfect. The documentary was on FOX


18 TV. Everything was perfect. Then I keep in touch,


19 you know, for their birthday, or giving something,


20 or if they need some money, or anybody needs


21 something, they always call me they need some help.


22 And the next time I heard, I was keeping


23 contact with them, the mother called me, said that


24 Gavin have cancer, and he’s sick, he’s ill.


25 And I kind of was in shock. “What’s


26 happened? What’s going on? Where we going?”

27 “Tomorrow we going to see another doctor,”


28 this, this. 4010


1 They call me. I don’t know when I was


2 called.


3 And then I got another call that they going


4 to go operate. I said, “When they go operate?”


5 They said such and such. And I said, “I’ll be


6 there.”


7 Q. Mr. Masada, who was it who called you?


8 A. Janet.


9 Q. Did she ask anything of you, any favor of


10 you, or ask you to do anything on her behalf?


11 A. Yes, she did.


12 Q. What was that?


13 A. She said I should pray. She ask me if I can


14 pray, and thank you for all of the help I did. If I


15 can pray. And I said, “Okay, I’ll go to church


16 tomorrow and do some prayer.”


17 Q. And did you go visit Gavin at the hospital?


18 A. Yes, I was there the time they operate, and


19 I went there every day afterwards.

In this excerpt, Zonen continues the prosecution’s narrative that David was responsible for the financial scams of the Arvizos:

10 Q. Okay. Mr. Masada, do you know David Arvizo?


11 A. Yes, I do, sir.


12 Q. And how did you meet him?


13 A. I met him in the hospital. First time I met


14 him in the hospital.


15 Q. All right. You had already known Janet


16 Arvizo; is that correct?


17 A. Yes, I did.


18 Q. Was it your understanding that David was


19 Janet’s husband?


20 A. That’s what I was introduced by.


21 Q. And the father of the three children?


22 A. Yes. Yes, sir.


23 Q. Did you become involved with David Arvizo in


24 fund-raising efforts in some fashion?


25 A. Yes, sir.


26 Q. All right. Was he involved in the two


27 fund-raisers at The Laugh Factory?


28 A. Yes, sir. 4020


1 Q. Was Janet Arvizo there at either of those


2 two?


3 A. As far as I remember, I don’t recall Janet


4 be there at all.


5 Q. Do you know how the money was collected on


6 either of those two occasions, those two


7 fund-raisers?


8 A. Yes. I believe first time was David and —


9 David and — David and the kids. I told them, you


10 know, “Here is the table. Sit in here.” And I


11 wanted somebody else sit with them. I don’t know


12 who was it, but they sit by the door. Whatever they


13 came in — you know, most of my audience, they come


14 in, they gave them money, whatever they gave them.


15 Q. Do you know approximately how much money


16 would have been raised on either of those two


17 fund-raisers based on your experience in the past?


18 A. Oh, God. I don’t think it was anywhere —


19 you know, I don’t think it was — any of them was


20 more than 2,000 bucks. I don’t think so. Never to


21 near 2,000 bucks. Maybe, eight, 900, 1200. I have


22 no idea.


23 Q. Okay. Do you think that 2,000 would be the


24 maximum they would have received?


25 A. Yeah, maximum. Maximum, I would think.


26 Q. On either of those two occasions, did you


27 collect the money or somebody working with you


28 collect the money? 4021


1 A. No. They did it. They did it. I think one


2 time, as I recall, David had sat down with one of


3 the employees that collect the money. And the


4 employee that sat down, David and the employee sat


5 down, and David was very upset because George Lopez


6 was supposed to be there, and George Lopez didn’t


7 come out. And George Lopez had an argument with


8 him, whatever, and he was kind of like upset. And I


9 took the money, I brought it up, I gave it to him


10 upstairs.


11 Q. Okay. Do you know how much money that was?


12 A. I think it was about 800, thousand dollars,


13 or something like that. 800, 900.


14 Q. During the time that you knew George — that


15 you knew David Arvizo, did he ever ask you for


16 money?


17 MR. MESEREAU: Objection; hearsay.


18 THE WITNESS: What do I do?


19 THE COURT: Just a moment.


20 Sustained.


21 MR. MESEREAU: I’ll withdraw the objection.


22 I’ll withdraw it.


23 Q. BY MR. ZONEN: Did David Arvizo ever ask you


24 for money?


25 A. Yes, he did.


26 Q. How often?


27 A. Many time.


28 Q. How often is “many”? Give us a sense. 4022


1 A. Anytime he was bringing the kids in, in to


2 visit me in the office, or I would go, he would walk


3 out with me. He said, “Well,” you know, something,


4 “We haven’t had soup, we haven’t had lunch.”


5 I mean, poor guy. You know, I gave it to


6 him, because I wanted to give it to him. Poor guy,


7 he needed money for eating, whatever. He was


8 unemployed. And I gave him whatever. You know,


9 anytime he asked me, I gave him some cash.


10 Q. Did he tell you he was not working?


11 A. Yes, he did.


12 Q. Did he tell you why he was not working?


13 A. No, he did not. I mean, I assumed, but I


14 didn’t ask, “Why you not working?” Because his kid


15 was sick in the hospital.


7 Q. BY MR. ZONEN: Did you ever give Janet


8 Arvizo money?


9 A. No.


10 Q. But you gave David Arvizo money; is that


11 correct?


12 A. Yes.


13 Q. How much money do you think you gave him


14 during the period of time his child was sick?


15 A. You are going to think I’m crazy, but I have


16 no idea. You know, I had money in my cash — in my


17 pocket, you know. I go out there, you know, he


18 asked me for some money, I gave him, 50 bucks, 40


19 bucks, 70 bucks. And sometime he asked me for gas


20 for car, because he had a car now. He have a


21 “sudan” car that Michael Jackson gave it to him, and


22 he was — he said he was losing a lot of gas and he


23 need more money for gas. You know, I just gave him


24 the money.

Here is Masada’s description of the wallet incident between David Arvizo and George Lopez; David and Gavin were visiting Lopez’s home one day, and Gavin accidentally (or intentionally?) left his wallet there. Shortly thereafter, Lopez returned the wallet, and David accused Lopez of stealing $300 dollars that was left inside of it:

27 Q. At some point in time, did you have a


28 falling-out with David Arvizo? 4025


1 A. Not really. I never had a fall-out with


2 him.


3 Q. All right. Was there an incident that took


4 place involving a wallet, a conversation with him


5 about a wallet?

6 A. Yes.


7 Q. All right. What was that?


8 A. It was — the first time happen, it was in


9 my club. He came in my office one time. And I


10 remember precisely that whole thing, because I did


11 not have money, cash in my pocket.


12 He came in my office, and he ask that — he


13 said that Gavin went to George house and somehow he


14 left his wallet with 300, $350 in it, in George


15 house. He lost it in George Lopez’s house.


16 And I said, “Oh, really?” I said, “Gavin,


17 this happened?” And Gavin didn’t say anything. And


18 I just kind of like, “Gavin, this happened? He


19 said, “No.” I said — and David went near Gavin and


20 he said, “Tell him that happened.” And Gavin didn’t


21 say anything.


22 And I just — my phone rang. And I tried to


23 pick up the phone, and then I realized Gavin said,


24 “Oh, dad,” like some — kind of like David elbowed


25 Gavin, or something.


26 And I knew that his face — Gavin’s face got


27 all red, like the — the time David hit him, his


28 face was red, and, “Dad,” and something like that. 4026


1 And at that point, I said, “Wait a minute,


2 wait a minute, wait a minute. Guys, come on,


3 let’s — let me — what was it? 350?” Whatever.


4 I wrote him a check. I said, “Here’s the


5 check. Go — here.” I gave him a check for $350.


6 I said, “Don’t even mention it. First, the money


7 was from me. I gave you guys the money. Don’t even


8 get that.”


9 Because I got really upset, because this kid


10 is sick. He elbowed him or something. I didn’t see


11 what’s happened, but I could see from the face of


12 the kid, he did something to him.


13 Q. Did Gavin ever say anything to you to


14 confirm that 300 or $350 was missing from his


15 wallet?


16 MR. MESEREAU: Objection; hearsay.


17 MR. ZONEN: State of mind, Your Honor, and


18 explains the behavior.


19 THE COURT: The objection is overruled.


20 Go ahead.


21 THE WITNESS: I answer?


22 THE COURT: You may answer.


23 THE WITNESS: What was the question again?


24 I’m sorry.


25 THE COURT: I can have it read back for you.


26 THE WITNESS: Oh, thank you. Thank you,


27 sir.


28 (Record read.) 4027


1 THE WITNESS: No, never said that.


2 MR. ZONEN: May I approach the witness,


3 Your Honor?


4 THE COURT: Cross-examine?


5 MR. ZONEN: No, I’m not done. I said, “May


6 I approach the witness?”


7 THE COURT: I’m sorry. Yes, you may.


8 (Laughter.)


9 MR. ZONEN: I’m losing my voice.


10 THE COURT: I was just trying to hurry it


11 along. I’m sorry.


12 (Laughter.)


13 Q. BY MR. ZONEN: I’d like to show you an


14 exhibit. This exhibit is marked as Exhibit 624 for


15 identification. Not yet in evidence. Take a look


16 at that, please, and both pages of it. I’ll leave a


17 second exhibit here as well.


18 A. Okay.


19 Q. Do you recognize that?


20 A. Yes, sir, I do.


21 Q. And please tell us what that is.


22 A. That’s a check for $350 to David Arvizo.


23 Q. All right. Is that, in your opinion, the


24 check that you wrote him at that time?


25 A. In my opinion, yes.


26 Q. And the date that’s on there, what is the


27 date?


28 A. 10-13-00. 4028


1 Q. All right. Would that date have been


2 written on that check accurately? In other words,


3 would you have written the same date on the check as


4 was the date that you wrote it?


5 A. I think so.


6 Q. Okay. Okay. There’s a second exhibit,


7 which I think is 623, right next to you. Go ahead


8 and grab that one and take a look at that.


9 A. Okay. This one?


10 Q. Yes, please.


11 A. All right.


12 Q. And confirm that number. That little kind


13 of pumpkin-colored tag on the bottom should have a


14 number on it.


15 A. This is 623. Case No. 1133603.


16 Q. That’s fine.


17 A. People —


18 Q. That’s fine. It is 623.


19 What is that document that you’re holding?


20 A. It’s a copy.


21 Q. Of what?


22 A. A copy of a check.


23 Q. Okay. What is that check? Is that your


24 check?


25 A. That’s Laugh Factory check.


26 Q. Made out to whom?


27 A. To David Arvizo.


28 Q. For how much? 4029


1 A. For $800.


2 Q. What do you believe that was for? Do you


3 have a recollection of it?


4 A. Yes, I do.


5 Q. What was that?


6 A. I think it’s, again, another time he came,


7 ask me for money that I didn’t have cash with me, so


8 I had to write him a check for his rent.


9 Q. And that was what that check was for?


10 A. That’s what he said for.


11 Q. Do you have a sense of how much money you


12 gave David Arvizo during the time that Gavin was


13 ill?


14 A. Not really.


15 Q. On one of the two occasions that you were


16 having a benefit at The Laugh Factory —


17 A. Yes, sir.


18 Q. — did you have an argument with David, or


19 did he have an argument with you?


20 A. Not really. I don’t recall argument.


21 Q. Did he ever throw money on the floor?


22 A. Oh. One time — the second, I think, if I’m


23 not mistaken, it was the second time that the money


24 I gave — we did a fund-raising for David. And we


25 went upstairs, and somehow he was downstairs


26 collecting the money.


27 And we went upstairs, giving the money to


28 David Arvizo. And David all of a sudden — we gave 4030


1 him the money. And I ask him about — again, one


2 more time about — because Gavin was up there.


3 Somebody was there. I can’t recall who was there.

4 Somebody was — few people that were up there, they


5 ask me about the wallet. Somehow the wallet came


6 up. And David was trying to tell Gavin to talk


7 about the wallet. And Gavin did not want to say


8 anything about it. He said he didn’t know what


9 wallet he’s talking about.


10 And because of he wasn’t — kid was not


11 confirming what he was saying, and he throw the


12 money at me. And I’m kind of like — you know, I


13 was kind of like insulted; I say how unappreciated


14 person he is, so I start walking away.


15 Q. You walked away?


16 A. Yes, sir.


17 Q. All right. What happened to the money?


18 A. I have no idea. Maybe somebody picked it


19 up. I have no idea.


20 Q. You left it behind, though?


21 A. Yes.


22 Q. You didn’t pick it up?


23 A. No, I was upset at that time.


24 Q. Was this the money that was the door money


25 to one of those benefits?


26 A. Yes, sir.


27 Q. All right. What was it that you said to Mr.


28 Arvizo prior to him doing that? 4031


1 A. I think was something to do — I mean,


2 again, it’s — God, it’s five years, four years ago.


3 I can’t remember word by word. But it was something


4 to do with wallet.


5 Q. Whose wallet?


6 A. The wallet of Gavin, because I believe I


7 spoke to Ann Lopez. Ann Lopez said they find the


8 wallet and was only $50 in it or something.


9 And I’m trying to ask him, “Wasn’t that what


10 you told me you got a check for, 350 from me?


11 What’s going on in here? Can you explain something


12 here? Something is not kosher in here. Hello?”


13 And he’s kind of like — he said — he ask Gavin,


14 “Gavin, confirm what’s happened,” and Gavin would


15 not say anything.


16 Q. That’s the conversation we just had already?


17 A. Yeah.


18 Q. Did you have any other dealings with David


19 Arvizo thereafter?


20 A. Yeah, he would come by the club once in a


21 while. He would come in, you know. I mean, at that


22 point after that, you know, it was kind of like, you


23 know, you try to help people, and the time people


24 become a little bit, you know, not truthful, you


25 just kind of like — you know, you’re not as


26 friendly as you’re supposed to be.


27 So I wasn’t that much friendly with him. I


28 mean, we were still — we still talk anytime he 4032


1 calls me. I pick up his phone, I talk to him.

To be continued:

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