Trial Transcripts

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F U R T H E R  P R O C E E D I N G S  10:00 a.m.

(The following proceedings were held in the presence of the jury and alternates.)

THE COURT:  Good morning, ladies and gentlemen.  I thought I would tell you that in this matter of scheduling, you just can't win.  We had a motion to hear this morning that the lawyers estimated would take a half hour, so I gave them an hour.  Would you believe it didn't take but 20 minutes?
     You have a witness, I believe, who was on the stand?

MR. SEGAL:  Yes, sir; Mr. Osterburg.

THE COURT:  Any further questions of him?


(Whereupon, JAMES OSTERBURG, the witness on the stand at the time of recess, resumed the stand and testified further as follows:)

D I R E C T  E X A M I N A T I O N  10:01 a.m.  (resumed)

BY MR. SEGAL:
Q  Professor Osterburg, yesterday when we adjourned, we were talking about matters that you observed and opinions you expressed about the manner in which the crime scene at 544 Castle Drive was processed for fingerprinting.  Now, I want to show you a group of photographs, if I may, and ask if you can identify them.  They have been marked for identification as Defendant Exhibits D-59 through 64.

(Defendant Exhibits 59, 60, 61, 62, 63 and 64 were marked for identification.)

A  Yes; I recognize D-61.
Q  And would you look at the next two black and white photographs, please, that are there, and see whether those also are familiar to you or you recognize them?
A  D-60 and D-59; yes, I do.
Q  What do those photographs represent to you?
A  Serially, D-59 is the swinging door between the utility room and the master bedroom, and it is the photograph taken from the utility room side when the door is closed.
Q  And do you know when that photograph was taken?
A  It was taken Saturday, August 11th -- last Saturday.
Q  1979?
A  1979.
Q  Were you present at the time the photograph was taken?
A  Beg your pardon?
Q  Were you present at the time the photograph was taken?
A  Yes, sir.
Q  Does it accurately represent what you observed at that door at that time?
A  Yes; it does.
Q  Would you also examine the other two photographs, and I want to ask you the same questions as to whether or not you were present and whether they represent what you saw?
A  May I explain why this was taken?
Q  In one second -- just so we get the background out, if we may, Professor Osterburg, as to the other two black and whites.
A  Defendant's Exhibit 60 is another photograph of the swinging door between the utility room and the master bedroom.  It is now swung open into the utility room, but it is the photograph of the door when closed on the master bedroom side.
Q  Was that photograph also taken at the same time in the same place, with you present?
A  It was.
Q  Does that represent what you also observed at the time the photograph was taken?
A  Yes, sir.
Q  And would you look at the third of those black and white photographs?
A  The third photograph is labeled Defendant 61.  It is the entrance door to the utility room.  That is, if you use that door, you come inside from outside or you go outside into the back yard.  This is a view from the utility room, so that if opened, one would then proceed out into the back yard.
Q  Now, was that photo also taken at the same time, in the same place, under the same circumstances, as the prior two photographs that I have just asked you about?
A  Yes, sir.
Q  Now, would you go back to the first photograph?  Would that help you in any way to illustrate the comments you were making yesterday about the conclusions you had arrived at concerning the way the fingerprint processing was conducted in that particular room?
A  It could.
Q  Would you then, please, show that to the jury and explain why you think that that does not comport with proper crime scene fingerprint processing?  Perhaps I can hold it up for you.
A  This is the door that leads from the utility room into the master bedroom.  Many people opened the door by putting their hand on the panel.  Sometimes one puts the shoulder on the panel.  Other times you use the door frame.  But certainly processing of a door for fingerprints in a crucial area would require that the entire door lower than the panel, but particularly the panel, be processed with fingerprint powder, to see whether there are any palmprints, any fingerprints present.
Q  Do you know of any reasonable explanation consistent with good crime scene fingerprint processing why the rest of that door would not be processed in the fashion you described?

MR. MURTAGH:  OBJECTION, Your Honor.

THE COURT:  OVERRULED.

THE WITNESS:  I do not.

BY MR. SEGAL:
Q  Would you now take the next of those photographs and tell us what that represents in regard to your statements yesterday about the way the fingerprint processing took place?
A  This is a photograph of the other side of the door facing the master bedroom, if closed.  For photographic purposes, it was pushed open.
Q  Permit me to hold that, if I may?
A  In this photograph, we are commencing to see evidence of fingerprint processing on the panel and the frame of the door, but to a certain height and to a limited degree.  Where the processing was done, some evidence of fingerprint touching is starting to manifest itself.  That is, the whole door should have been done this way, and on both sides.
Q  Do you know of any reason consistent with good crime scene fingerprint processing why the entire door should not have been processed at that time?
A  I do not.
Q  Will you take the third of the black and white photographs, please, and tell us what that illustrates?
A  This is the door leading to the outside, if one is going outside from the utility room, or leading to the inside of the premises if one is outside in the back yard entering through the utility room entrance.  It is an example of partial processing of the area where surely persons coming in could have, and might have, touched.
     And in particular, I direct your attention to the light switch area, which shows no evidence of processing whatsoever.
Q  Do you know of any reason, again, consistent with good crime scene fingerprint processing, why the entire areas you have described -- including the light switch -- should not have been processed?
A  I do not.
Q  Now, you also had presented to you certain color photographs.  Could you take the two photographs that are marked D-62 and D-63 first of all, and tell us what they represent to you?  Have you ever seen them before also, sir?
A  I have seen these before.  D-62 is a color photograph of the north bedroom door, the side facing inside the bedroom.  That is, if the door is closed, this is the side that you see of that door in the bedroom.  It shows a little evidence of processing on the doorjamb.
Q  Again, let me hold that, if I may, please?  Just to complete the record, was this photograph taken at the same time and under the same circumstances as the other three you have testified to?
A  It was.  This photograph shows some evidence of processing on the doorjamb, on the edge of the door -- that is, the very thin part of the door -- the inch and a half, two inches, whatever it is -- no processing around the light switch, and certainly no processing of the rest of the door on the inside.
Q  Do you know of any explanation consistent with good crime scene fingerprint processing why the entire door and the light switch should not have been processed?
A  I do not.
Q  Would you take a look now at the remaining color photograph and tell us what that represents?
A  This is the same door, photographed showing the door as it would appear to you if you were entering the bedroom and the door were closed.  It is open for purposes of photographing against the wall of the bedroom.
     It manifests evidence of fingerprint work being done in some areas -- some around the handle, none on the panel here.  Again, it is inadequately processed.  Why a person would select that particular location and not the rest of it, I am mystified.
Q  Do you know of any explanation consistent with good crime scene fingerprint processing that could explain the fact that the areas you pointed out were not processed?
A  I do not.

MR. SEGAL:  Your Honor, may the photograph be published to the jury?

THE COURT:  Yes.

(Defendant Exhibits Nos.  59 through 64 were received in evidence.)

(Exhibits passed among the jury.)

BY MR. SEGAL:
Q  Now, let me move on to a different area of the house in regard to fingerprint processing.  Did you examine the living room, particularly the area where the sofa, chair and coffee table are located?
A  I examined the walls of the living room in back of where the sofa was located.
Q  Was there any particular reason why you examined that area?
A  Well, that is the area in which Dr. MacDonald was sleeping on the couch, and I believe Mr. Medlin testified that when he attempted to rise, he placed his hand on the wall, in rising.
Q  You are describing the experiment that Mr. Medlin testified to here in Court about lying down on the same sofa?
A  Yes.
Q  Now, what, if anything, did you observe as to how much fingerprint processing was done in regard to the area around the walls where the sofa is located?
A  The fingerprint processing in the living room was indeed minimal.  For a height of 36 inches on the wall -- the southeast wall of the living room -- to a depth of 11 inches from the hallway going into the living room, processing was done, and that is the extent of the processing on the southeast wall.
Q  Let me ask you, if you would, to step down to the model so that when we talk about these numbers -- if you would indicate on the model -- that we might all be able to perhaps see it more graphically.
A  This area right in here, 36 inches and 11 inches deep, was processed.  Nothing in back of that was processed.
Q  You say nothing in back of the couch -- did you remove the cushions that appeared here on the couch also, in your examination?
A  Yes, sir.
Q  Did you find any evidence of fingerprint powder or fingerprint evaluation behind the cushions?
A  I did not.
Q  Did you find any fingerprint examinations at all anywhere on the wall -- this wall where the sofa is located -- other than this area near the doorjamb that you described?
A  I did not.
Q  Do you know any reason consistent with good crime scene fingerprint processing to explain why that area was not processed for fingerprints?
A  I do not.
Q  What is your opinion of the failure to process that area, considering the facts known to the fingerprint processor at that time?

MR. MURTAGH:  OBJECTION.

THE COURT:  I believe I will let him say what his opinion is.

MR. SEGAL:  Yes --

THE COURT:  (Interposing)  Go ahead and tell us what that opinion is.

THE WITNESS:  In my opinion, a prime opportunity to develop fingerprints or evidence of intruders was missed by not processing that area of the wall.
     This is an area where a struggle was -- is purported by Dr. MacDonald to have taken place.  People could easily have reached over and touched that wall, leaving a palm print -- possible fingerprint; and I am just -- I just can't believe that it was not processed.

BY MR. SEGAL:
Q  Now, did you also have occasion to see a plastic flower pot at the house when you visited?
A  Yes.
Q  All right, what flower pot did you see?
A  There was a flower pot standing on top of the table which was now arighted.  The table was arighted and the flower pot was standing up.
Q  Was that a white plastic flower pot?
A  That was a white plastic flower pot.
Q  Now, did you examine that pot in terms of whether it had ever been processed for fingerprints?
A  I did.
Q  And what, if anything, did you find, based upon your examination?
A  I found no evidence --

MR. BLACKBURN:  (Interposing)  Your Honor, we would OBJECT to this, and may we approach the Bench on this?

THE COURT:  Yeah, let's come up on that one.


B E N C H  C O N F E R E N C E

MR. BLACKBURN:  I had been informed by counsel as to the flower pot -- I'm sorry.  I had been informed by counsel for the Defense that the flower pot in the living room, that is there now, is not the original one -- that the original one was broken into pieces which were given to the Defense Saturday, as I understand it.
     For Mr. Segal to ask about this new flower pot is very misleading to --

MR. SEGAL:  (Interposing)  I will develop that -- I will gladly develop that, Your Honor.  Let me just --

MR. BLACKBURN:  (Interposing)  My point is --

THE COURT:  (Interposing)  Let me just ask the witness: do you know whether or not the flower pot that you looked at was the one that was in there when this crime is alleged to have taken place?

THE WITNESS:  I have heard that it may not be the flower pot --

THE COURT:  (Interposing)  All right.  I will SUSTAIN the objection.

MR. MURTAGH:  Your Honor, the reason there is an additional flower pot is that they made a filmed recreation and they needed a flower pot for it.

(Bench conference terminated.)


BY MR. SEGAL: 
Q  Did you see any other evidence of a white plastic flower pot in the living room of the MacDonald house when you visited last Saturday?
A  Yes.
Q  Where did you see evidence of another flower pot?
A  Oh, it was -- first of all, the flower pot was broken into several pieces -- ten, eleven, something like that, and they were scattered around the living room.
Q  You say around the living room -- in any particular area in relationship to where the coffee table and sofa were?
A  Well, in the coffee table area and spread out toward the kitchen and the west wall -- toward the west wall.
Q  Now, when you first looked at that scene in the living room last Saturday, did you know that the white plastic flower pot that was sitting on the coffee table was, in fact, not the one that had been there on February 17, 1970?
A  No, I assumed it was the flower pot being talked about.
Q  However, you subsequently, as you contined to process -- examine that room, to discover the pieces of this other pot, is that right?
A  Yes.
Q  Were those pieces collected by anyone?
A  Yes, they were.
Q  And did you have occasion to examine those pieces to see, first of all, whether they formed a plastic flower pot?
A  Yes.,
Q  And what do they form?
A  They do form a plastic flower pot.
Q  Did you find any indication that that pot had ever been processed for fingerprints?
A  I did.
Q  And what did you find in that regard?
A  I found it was thoroughly processed.
Q  Do you know of any reason consistent with good crime scene processing that an item such as that at the crime scene should be left there where it could be broken into 11 pieces or more and scattered on the floor?

MR. MURTAGH:  OBJECTION, Your Honor.  MOVE TO STRIKE.

THE COURT:  SUSTAINED.

BY MR. SEGAL:
Q  Do you have any idea -- well, how did you gain access to that particular house -- were you able to just walk right into the house?
A  No.
Q  Tell us as the process or about what you had to do for you personally to get access to the house?
A  Mr. Bidwell, a CID agent on Fort Bragg Post, had to meet me and others in the party, open the door with the lock, break a seal -- a railroad -- guess it's a railroad seal, and open the door so that we could gain access.
     Upon departing, another seal was placed on the door patch, and the lock was placed there, too; and it was resealed.
Q  Did you look at the kitchen area of the MacDonald house?
A  I did.
Q  All right, and examined that in regard to the fingerprint processing that was done there?
A  I did.
Q  Would you tell us, please, what you observed about the extent of the fingerprint processing?
A  The two doors which -- drawers which would contain knives were thoroughly processed.  The doors below the kitchen sink, one of which was now removed -- the remaining doors were not processed.

MR. MURTAGH:  Your Honor, we would OBJECT.  If he didn't see any other door, how does he know whether it was processed or not?

THE WITNESS:  I didn't speak about that, Counsel.

MR. MURTAGH:  I believe you did.

MR. SEGAL:  Let me clarify it rather than having a meaningless argument.  I think, again, if we use the model here, perhaps you can point, Mr. Osterburg, to the portion of the kitchen -- see if we can turn the model around -- and I am going to hold it up on end so perhaps the members of the jury can see it better.
     Members of the jury, if I can just stand up over here to help Mr. Osterburg.

THE WITNESS:  These two drawers -- the extreme left and the extreme right drawers -- were well processed.  This drawer was missing, so I can't speak to whether it was or wasn't processed.  The remaining three doors below were not processed.
Q  All right, would you be seated.  Once again, I ask, Mr. Osterburg, do you know of any reason consistent with good crime scene fingerprint processing why the balance of those doors in that area were not processed?
A  I do not.
Q  Did you examine anything -- any other area in the kitchen during the course of your going through this house?
A  I examined the other walls and saw no evidence of processing on those.  I examined the door of the kitchen leading to the back yard and saw no evidence of processing on that.
Q  Did you examine the refrigerator in the MacDonald kitchen?
A  Yes; I did.
Q  What, if anything, did you find there?
A  I found that there was food still stored in the refrigerator, apparently food from some earlier period, since the prices on it reflect the difference in prices these days.
Q  Do you have a photograph there that illustrates that?
A  I do.
Q  Does this photograph marked D-64 indicate what you found in the freezer of the kitchen in the MacDonald house?
A  Yes, sir.
Q  Was the freezer, in fact, operating and functioning, holding the food and items in a frozen condition?
A  Yes, sir.
Q  Do you know any reason, consistent with good crime scene processing, why that food be kept there for the length of time it had been?
A  I imagine the Army thinks it's still preserving the crime scene.

MR. MURTAGH:  OBJECTION, Your Honor.

MR. ANDERSON:  OBJECTION.

THE COURT:  Well, I'll ask the jury not to consider the witness' imagination.

BY MR. SEGAL:
Q  Let me put it this way again: do you know any reason, consistent with good crime scene processing, why a criminal investigator would preserve the food in the freezer for nine years?
A  Not that I know of.  I don't know.  If it were a poisoning case, of course.
Q  By the way, to your knowledge, is that a self-defrosting refrigerator?
A  No; it is not.
Q  How would the refrigerator be in the condition it is, then, if it is not a self-defrosting refrigerator?
A  The CID agent comes twice yearly to defrost the refrigerator.
Q  Did you learn that from Mr. Bidwell, the CID agent at the scene?
A  I inquired of him: did he defrost it?  And he answered, "Yes."
Q  For nine years he had been defrosting the food in the refrigerator?

MR. MURTAGH:  OBJECTION, Your Honor, on the grounds of irrelevancy.

THE COURT:  SUSTAINED.  Counselor, there must be some limit whereby we can explore matters that were as tangential as this.  I just don't think that is relevant.  Objection sustained.

MR. SEGAL:  I can make an offer of proof in that regard if Your Honor thought it necessary, but I have other matters I want to proceed with.

THE COURT:  Well, go ahead.

BY MR. SEGAL:
Q  Now, I want to ask you about the processing in the bedrooms of the children.  Did you have occasion to look at the headboard of the bed in Kimberly's room?
A  Now, Kimberly's room is --
Q  (Interposing)  That's the south bedroom.
A  There was one room that didn't have a bed in it, and I have forgotten now which one didn't and which one did.
Q  Let me show what has been marked previously in evidence now, Government Exhibit G-637 and then G-335.  Just permit me to rearrange this a bit.  I want to ask whether you have ever had occasion to examine this particular headboard here in court which has previously been introduced by the Government as having come from Kimberly's bedroom.
A  Well, I observed what I see now.
Q  Now, what can you tell us about the extent of the fingerprint processing on this headboard?
A  I think it is quite apparent that the entire headboard has not been processed, that the side of this board has not been processed in this area that I am indicating, that some processing was done here.
Q  Now, let me reverse the board -- first of all, will you estimate what percentage of the face of this headboard has been processed for fingerprints?
A  Forty percent -- a third.
Q  Now, let me show you the reverse side of this particular headboard and let me ask you to tell us what would be the case in regard ot fingerprint processing there?
A  Well, again, there is partial fingerprint processing in the areas being indicated by the pointer, and up here on the top of the headboard.
Q  Finally, in that regard, let me show you the footboard that has previously been identified by the Government as coming from the same bedroom, and ask you to tell us to what extent the face side of the footboard has been processed for fingerprints?
A  Well, I think it is apparent to the jury, but let me point out the area using the pointer.

MR. MURTAGH:  Your Honor, I would MOVE TO STRIKE that comment.

THE COURT:  Well, don't consider that, members of the jury.  I will assume that the jury will know what is apparent to them and what is not.

MR. SEGAL:  You mean it is self-evident, Your Honor?

MR. MURTAGH:  OBJECTION, Your Honor.

THE COURT:  SUSTAINED.

BY MR. SEGAL:
Q  Well, why don't you, then, just point out just exactly what you observed, Professor Osterburg, so that we will know what exactly what is on the headboard [sic]?
A  Footboard.
Q  Footboard -- I beg your pardon.
A  The footboard is painted yellow.  Those areas with darkened smudges or darkening indicates the application of fingerprint powder, and it is in the area I am showing with my pointer, and that includes the top of the footboard also, some of the post and the top of the post.
Q  Now, let me show you the reverse side of the footboard and ask you whether there is any evidence of fingerprint processing here.
A  Yes, there is.  Once again, using the pointer, I am indicating the area that was processed with fingerprint powder, and the top of the board is processed to approximately a bit beyond midway.

MR. SEGAL:  Will you return to the stand?

BY MR. SEGAL:
Q  Professor Osterburg, is there any reason that you know of, consistent with good crime scene fingerprint processing, why the fingerprint processing on those headboards should have been limited to the areas that they were?
A  No; I do not.
Q  Let me ask you a more general question: is fingerprint processing, considering the size of the MacDonald house -- is that a complicated and lengthy process?
A  It's not complicated.  It could be lengthy.
Q  Would you tell us, please, now having been to the MacDonald house, having observed photographs as the way it appeared with the furniture in it, being aware of the information that the investigators had originally, how long it would take, in your judgment, for a competent fingerprint processor to have totally processed the crime scene in a manner that you believe is consistent with good crime scene processing?
A  We have to define "processing," I believe.
Q  (Interposing)  Would you do that?
A  -- to make the jury understand.  The application of fingerprint powder to objects does not take -- such as this object in front of you -- does not take a great deal of time.  That could be done in ten minutes.
     If fingerprints are found on the object as the result of processing, then it is incumbent upon the fingerprint processor to record those fingerprints.  That can take some time.  By recording, I mean: what is the location, and also recording the details of the fingerprints so that they subsequently may be examined in the fingerprint bureau as a result of the photographs.
     Now, photographing is not an extremely difficult process, but it takes some time to change the film and record and keep the necessary information as to where the fingerprint was located.  That's the most time-consuming part of it -- is the bookkeeping.
Q  Now, having taken into consideration all those factors, do you have an opinion as to how long it would take a competent fingerprint processor to have processed the entire crime scene in the matter that you consider necessary and appropriate for a crime of this magnitude?

MR. MURTAGH:  OBJECTION to the form, Your Honor.

THE COURT:  OVERRULED.

THE WITNESS:  I believe it could be done in two days.

BY MR. SEGAL:
Q  By how many persons?
A  Two people.
Q  Now, you also examined the crime scene as processed by Mr. Medlin and Mr. Turbyfill and you have read their testimony and you have seen photographs of their work.  In your opinion, how long would it take to do the fingerprint processing to the extent that these persons did it at the crime scene?
A  Considerably less than two days, if they were only doing that.

MR. MURTAGH:  OBJECTION, Your Honor.

THE COURT:  SUSTAINED.  Don't consider that, members of the jury.

BY MR. SEGAL:
Q  I would like to ask you now some matters about the photographing you just mentioned.  You said something about photographing fingerprints.  How difficult or how simple is the process of photographing fingerprints and why is it done in connection with crime scene investigation?
A  Well, first of all, it is a detail of someone touching something.  We don't know who touched it.  People in the home obviously will have touched many of the items that are processed.  But intruders might have touched them also.
     Consequently, any fingerprint that is developed showing ridge lines -- now we are not talking about a complete fingerprint.  Fingerprints found at crime scenes are generally partial fingerprints.  They are only part of the finger.
     These are photographed so that a person may -- in the fingerprint bureau or back where the fingerprint files are kept and the record files of possible people -- suspects -- may also be available -- so that the fingerprint examiner, who generally is a different person from the person who processes crime scenes, may compare the latent fingerprints -- photographed latent fingerprints -- with record prints either in the file or taken expressly by inking a person's set of fingers for this purpose.
Q  Professor Osterburg, is it most common to photograph fingerprints at a crime scene and take them back for comparison, or is it most common to try to lift fingerprints at a crime scene and take the lifts back for comparison?
A  One always photographs first, then lifts.
Q  Are there instances, or is it frequent or infrequent that, in fact, the prints are not even lifted from the scene once you have taken photographs?
A  Very often, you do not even bother to lift.
Q  And why is that?
A  Because you have a photograph of it.
Q  How difficult is it to take a photograph of a fingerprint?
A  Well, it is extremely simple.  There is available an instrument called a fingerprint camera.  It is designed so that, if you can count to ten and pull a switch and know how to insert the film, automatically the fingerprint will be in focus, if the fingerprint camera is placed in contact with the surface bearing the fingerprint.
     It is a camera built so that a one-man police department could take a fingerprint if it had the equipment and needed to.
Q  How long has the fingerprint camera that you have been describing been in general availability to law enforcement agencies?
A  I really don't know the history of it, but I first became familiar with it in 1941 or '42, and I was told that that camera was about ten years old.
Q  There has been testimony in this case about the difficulty Mr. Medlin had to get first, a lift, and then a photograph of a fingerprint of the back door of the MacDonald house, which was believed to be the egress and ingress of the intruders.  Have you read his testimony in that regard?
A  I have.
Q  Do you have any opinion as to whether or not, if Mr. Medlin was able to raise a visible impression -- that is, get ridge lines of some sort -- it is possible to also get an adequate photograph for comparison purposes?
A  It certainly should be.
Q  Is there a situation ever in which you can see a fingerprint and not be able to capture it by photograph?
A  If it can be seen, it can be photographed.
Q  Now, Mr. Medlin described for us the fact that there were some paint crackles involved when he saw those particular fingerprints on the back door, and that apparently it had something to do with the difficulty of photographing or re-photographing that.  Did you read that testimony?
A  I did.
Q  In your opinion, did those matters described by him prevent him or any other competent fingerprint processor from getting a clear photograph of those prints?

MR. MURTAGH:  Your Honor, I would OBJECT unless he has seen the photographs.

MR. SEGAL:  He read his testimony.

THE COURT:  I thought the question assumed that no photographs were taken because of some crackles in the paint.

MR. SEGAL:  He could not get a clear photograph by his own testimony, as I recall it, Your Honor.

THE COURT:  All right; OVERRULED.

MR. MURTAGH:  Your Honor, I believe there was also testimony from Mr. Medlin that it was re-photographed.  Unless the witness has seen the actual object and the photograph --

THE COURT:  I will let him answer that.  Have you seen all the photographs that Medlin took?

THE WITNESS:  I have seen none.

BY MR. SEGAL:
Q  Have you read his testimony?

THE COURT:  I will SUSTAIN the objection.

MR. SEGAL:  I asked him whether he has read all of his testimony in which he described the difficulty.  I only want to find out whether that explanation is satisfactory in view of another expert's view of how that should be done.  He can show him all the photographs he wants, Your Honor.  We don't object to that.

MR. MURTAGH:  Your Honor, my objection is not to showing the witness the photographs, but he is testifying on the basis of not having seen any of these photographs as to the competency, or lack thereof, of the photographs taken of the fingerprints.  If he hasn't seen them, he just doesn't know.

MR. SEGAL:  I have not asked him that question.  I have asked about Mr. Medlin's explanation and whether that is consistent with what we know about our ability to get a good photo.

THE COURT:  Can you answer that question?

THE WITNESS:  Yes; I believe I can.

THE COURT:  Well, answer it yes or no.

THE WITNESS:  Can I have that question repeated?

THE COURT:  He wants to know whether or not you think that Medlin's explanation will hold water, so to speak.  Just answer yes or no.

THE WITNESS:  No.

THE COURT:  Very well.  Is that what you wanted him to say?

MR. SEGAL:  Yes.

BY MR. SEGAL:
Q  Let's assume for a minute there that the fingerprint processor was having difficulties in getting an adequate photograph of the fingerprints on that back door.  Based upon your training, knowledge and experience, are there other proper crime scene processing techniques that should have been used?
A  Yes.
Q  And what are they, if you can describe them, please?
A  I would remove the door and place it in some situation so that it cannot be disturbed or touched until such time as someone who could take a photograph of it, or until it could be brought to some place where it could be photographed -- until that could occur.

MR. MURTAGH:  Your Honor, I would MOVE TO STRIKE that testimony unless the witness is in a position to state whether he knows whether a portion of the door was removed or not.

MR. SEGAL:  We have Mr. Medlin's testimony on that subject, Your Honor, at length.

THE COURT:  OVERRULED.

BY MR. SEGAL:
Q  Is there any danger in removing that screen door from the hinges that the fingerprint powder will fall off and that you will lose the detail of any ridge lines or impressions that might have been visible?
A  I have never heard of that before, and we see fingerprint powder lasts nine years.
Q  You are talking about the fingerprint powder right here on the headboard?
A  And what I observed in the house.
Q  Tell us something, please, about your experience about the adhering quality of fingerprint powder?
A  Well, fingerprint powders are compounded expressly to adhere to the secretions that are on the finger -- namely, perspiration, some of the oils that we pick up from our skin, the material that might be present settling from the air that is oily.  And the fingerprint powders are developed so that they will selectively adhere to that material, but not to background material in general.
     The whole purpose of processing a fingerprint which is invisible -- and it is called the latent or hidden print in the trade -- the latent print.  The purpose of processing objects is to make those latent or hidden or invisible prints visible.  And in trying to do that, you select a fingerprint powder which will provide contrast between the backgrounds and the object being processed.
     For example, on this yellow headboard, you would not use a white fingerprint powder.  You would use properly, as they did, a black fingerprint powder.
Q  Are there more than one color of fingerprint powder available for crime scene processing?
A  Yes; there are.
Q  Let me ask you about the matter of some testimony by Mr. Medlin about a footprint that he saw on the floor.  How, first of all, should a footprint apparently made in blood be protected at a crime scene, if proper standards were used?

MR. MURTAGH:  OBJECTION, Your Honor.

THE COURT:  To the form of the question?

MR. MURTAGH:  The form; yes, sir.

THE COURT:  I will SUSTAIN that.

BY MR. SEGAL:
Q  Based upon your knowledge and experience, what is proper practice -- good police practice -- for preserving footprints that may be made in blood at a crime scene?
A  Well, as with fingerprints, they are photographed.
Q  Aside from photographing, are there any other techniques or methods one would employ consistent with good police practices to preserve and protect such an item as a footprint in blood?
A  Are you referring to the time that may intervene between when you are able to take the photograph and other processing is going on?
Q  Yes; let's start with that time frame first.
A  Well, obviously something must be done to avoid accidental walking on the footprint, assuming there are people for some reason necessary -- who are there necessarily at the crime scene.  Obviously, that should be kept to a minimum.  Placing some object of warning -- such as a chair, possibly, over the impression, the chair being situated in an unusual place, depending upon where it is -- with a sign possibly placed on the chair saying, "Danger -- footprints.  Do not touch.  Do not disturb."
Q  Well, now, if it is possible for a footprint to be seen apparently in blood on the floor, which shows individual characteristics that are visible to the naked eye, is it possible to have that photograph and show the same individual characteristics in the photograph?
A  Of course it is possible.
Q  Does that present any enormous technical difficulty for a competent fingerprint processor?
A  Well, this is a problem for a photographer.  I can see no reason why it should.  As I said before, if you can see it, you can photograph it.
Q  There is some testimony in this matter by Mr. Medlin in regard to a footprint on the floor of Kristen's room, where the suggestion was that there was light coming from a window which created difficulty in photographing of prints there and other matter in that room?

MR. MURTAGH:  Your Honor, I would MOVE TO STRIKE that question.  I don't believe it comports with the witness' testimony at all.

THE COURT:  Well, I will SUSTAIN the objection.  I won't strike the question, but I will sustain the objection to the question; but I will allow counsel to show whether or not there is such evidence in the record.

MR. MURTAGH:  Your Honor, at this time we would tender counsel a transcript.

MR. SEGAL:  It is very generous of the Government to make it available at this time, Your Honor.

MR. MURTAGH:  OBJECTION.

MR. SEGAL:  I would like the opportunity after the break to go back to the subject matter.

THE COURT:  Very well, you may have that; but we won't have your comments in advance of that.

BY MR. SEGAL:
Q  Let me ask you this -- we will come back to this particular problem or non-problem in a little while.  Do you have an opinion, Mr. Osterburg, as to whether or not there is a scientific explanation for the fact that Mr. Medlin says he was able to observe ridge lines on the bloody footprint on the floor, but he was unable to photograph and that they disappeared by the time of the photograph of them?

MR. MURTAGH:  OBJECT to the form, Your Honor.  That's not what the witness testified to.

THE COURT:  SUSTAINED.

MR. SEGAL:  It is my recollection that they did, sir.

MR. MURTAGH:  May we approach the Bench, Your Honor?

THE COURT:  I sustained the objection.

BY MR. SEGAL:
Q  All right, let me put this question to you: is there any realistic possibility in your mind, based upon your knowledge and training, that between the time a bloody footprint could be seen on the floor by Mr. Medlin and the time that the floor section was taken up and carried back to Fort Gordon that the ridge lines he observed would disappear on the floorboard and become lost?

MR. MURTAGH:  OBJECTION, Your Honor.

THE COURT:  OVERRULED.

THE WITNESS:  I have seen the floorboard, and there is a bloody footprint impression on the floor.  There are no ridge details in the bloody footprint.
     I cannot see any reason or explanation that is reasonable why those areas of the bloody footprint bearing the ridge details would selectively disappear while the rest of the imprint would remain.  I just don't understand that.

MR. MURTAGH:  OBJECTION, Your Honor, the witness --

THE COURT:  (Interposing)  I ask the jury not to consider this further statement.

BY MR. SEGAL:
Q  What I would like for you to address yourself to also: is there any scientific explanation that you are aware of that would explain why they would be present and visible to Mr. Medlin at the crime scene and would no longer be present or visible to other persons when they are taken back to Fort Gordon to the crime lab?

MR. MURTAGH:  OBJECTION.

THE COURT:  SUSTAINED.

MR. SEGAL:  May we see Your Honor, please, at the Bench?

THE COURT:  Yes.


B E N C H  C O N F E R E N C E

MR. SEGAL:  Your Honor, Mr. Medlin's testimony, as I recall it, was that he said he saw something -- he stated here in Court that he could identify it, but that nobody else could see it.
     My point is that there is no scientific explanation that supports his conclusion that they disappeared.  I cannot understand his conclusion that they disappeared.  If the Government's really rather speculative testimony of Mr. Medlin, that he saw something and it disappeared, and he could offer himself -- no scientific explanation was allowed in.
     Now, all we ask is, as a scientist, does he know reasons from a scientific standpoint why this would happen.  It escapes me as to why we cannot ask him that, sir.

MR. MURTAGH:  Your Honor, may I respond?

THE COURT:  Yes.

MR. MURTAGH:  I believe Mr. Medlin testified that he could observe the ridge lines using oblique lighting that was being moved around the footprint; and that the photographer, Mr. Paqe, was having difficulty -- in other words, when you could see the ridge lines you were also looking into the light, and apparently what the human eye can adjust to is not what the camera can adjust to.
     He further testified that after he had identified and turned the exhibit, I believe, over to Mr. Chamberlain who was the chemist, it then became a blood exhibit.
     The thing was cut out and the board separated.  We provided an adequate explanation by way of the testimony of Dr. Chamberlain, and, I believe, Mrs. Glisson, that the blood was taken off in testing it.
     They specifically pointed out, I believe, their initials are visible on that area; and what this witness is doing is ignoring one aspect of the testimony which he may or may not have read, and it is being made to appear that there is no explanation as to why the blood isn't visible.  I think that is unfair --

MR. SEGAL:  (Interposing)  I don't see why I can't ask a question because he wants to argue his case.

THE COURT:  I think that the objection that you raise is one that you can adequately cover on cross-examination.  If you simply want to show that there is no reason why a footprint showing ridges, and nothing else appearing, no evidence of anything, having -- why it wouldn't be visible a week from now -- if that's your question, I will let you ask that.

MR. SEGAL:  Yes, sir.  Again, I am asking, is there a scientific explanation for that.  I don't want him to speculate, but I will amend the question as Your Honor suggests.

THE COURT:  All right, go ahead.

(Bench conference terminated.)


BY MR. SEGAL: 
Q  I want to make reference to certain testimony by Mr. Medlin in which he indicated that when he observed of the footprint on the floor, that he was able to observe both form and outline and some ridge detail?
A  Yes.
Q  He also testified that later on, when that floorboard was cut out and taken back to Fort Gordon, that other examiners could not find it, or he did not see it there --

MR. MURTAGH:  (Interposing)  OBJECTION, Your Honor.  I don't believe that's what Mr. Medlin testified.

THE COURT:  Well, I can't referee that one because Medlin's testimony was two or three weeks ago, and I just don't recall it in that much detail.  I will OVERRULE the objection, but if you have his testimony then you can bring it out on cross-examination if you care to.

BY MR. SEGAL:
Q  Mr. Medlin subsequently testified when he was taken back to Fort Gordon that other examiners and he apparently were not able to then see the ridge detail he said he saw back in February 17th or shortly thereafter.
     Do you know of any scientific explanation as to why the details that were able to be seen by Mr. Medlin February 17th or 18th, 1970 -- they could not, a week later, be seen by other -- be seen again?
A  It is my understanding that the floorboard came apart.  In those areas where the floorboard separated, ridge detail present in those areas would have disappeared or could have disappeared.
     But in those areas where the floorboard was intact -- that is, it was on a section of the board -- I see no explanation, scientific or otherwise, why the ridge details should have disappeared.
Q  Now, let me read you Mr. Medlin's --
A  (Interposing)  Excuse me -- if it were properly transported.
Q  Well, let's talk about that.  Based upon your own experience in detective work and your teaching and your learning in the area, what would have been a proper police practice as to how to remove that section of floor so that no ridge detail, including in the crevices, would be lost?
A  The practice so that they would be lost?
A  So that no ridge detail, even in the crevices, would be lost by, say, the board's falling apart or coming apart?
A  Well, one would attempt to secure the three boards or four boards, whatever they may be -- might be, by putting strips along each, sufficient distance away so that they can be -- remain clamped, in a sense.  You build a clamp -- you know, it's -- fashion a clamp, so that the boards will remain together.
     Now, a technician may not be able to do that, but a carpenter certainly could, if told what you wanted done.
Q  Is that a unique problem for a competent fingerprint examiner to deal with?
A  I am not sure if fingerprint examiners do this work.  This is really a criminalist's work.  It is not something that is done weekly, much less daily; but it is something, if the occasion arises, the criminalist should be able to respond to and address.
Q  Now, let me go back to the problem of photographing this particular footprint.  And I would like to read to you, if I can, from page 3106 of the transcript of this case, which is the testimony of Mr. Medlin, taken back on July 30, 1979.
     Mr. Medlin was asked what he had done in regard to the footprint.  And he gave the following answer:
     "...I called Mr. Page in and asked him to photograph the footprint so that we could make a record of it, and he attempted to do this using Polaroid film to see if he could do it, as my eyes had seen; but every time he would get the camera in the same position that my nose and my eyes was -- which as you can see is quite close to the floor -- the light would shine directly into the lens of the camera.  Every time he would snap the shutter, it would pick up the light bulb.
     "Therefore, he was not able to make a photograph of the different characteristics in the formation of the foot as I was viewing it through my glass.  He had no magnifying lens for his camera, and therefore he did the best he could."
     Now, does that explanation satisfy what your own experience is in terms of the difficulty or non-difficulty of having photographed this footprint?
A  It is quite apparent that there is an illumination problem being discussed here.  And if there is an illumination problem, you take care of that.  You don't use -- it sounds like he was using flash.  But you need directed illumination from photofloods, possibly lighting obliquely from the side so that the light does not reflect up into the lens.
     But if the illumination being used is such that the opportunity -- if a shiny surface reflecting back is there, then you -- as a photographer -- you recognize this and you illuminate it in a different fashion.

MR. MURTAGH:  Your Honor, we would MOVE TO STRIKE that answer as not being responsive to the question.

THE COURT:  OVERRULED.

BY MR. SEGAL:
Q  If he was using a flash in the fashion described, what might he have done with the flash in order to avoid this reflection you described?
A  Well, he might have used indirect flashing up to the ceiling.  But there I am speculating.  I would prefer to use the ground glass of the speedgraphic, actually look at the print on the ground glass so that I know I am getting the details that I need and want.  And then I would close the camera lens because the illumination now is satisfactory, place the film in, expose the film, have it developed and processed.
Q  Does this require some extreme unusual technical equipment to have done that?
A  No.
Q  Would it require anything in terms of special experience and extraordinary experience not commonly available to persons who photograph crime scenes?
A  I would think that it requires some knowledge beyond just general exposing four walls and a floor; yes.
Q  Now, the testimony here that some of the photographs that were taken of the fingerprints and other items were not clear because there were vibrations that the house was apparently exposed to; assuming that there was a problem of vibrations, was there any solution that a photographer could have pursued if he or she were competent in the area of crime scene photography?
A  Well, I would try to ascertain the cause of the vibrations, and if it was within my power, to have them stopped.
Q  Well, for instance, there was some suggestion there were Dempster Dumpsters passing by.  Is there some solution to that problem?
A  I am not sure what a Dempster Dumpster is, but if it's a truck -- I assume if it's a truck of some sort?
Q  Yes, sir?
A  They can be stopped.  Military Police have the capacity, I believe, to tell them to cease -- "Don't come around.  We are doing some work."
Q  Would the photographer have been aware at the time he was taking the photograph that the vibrations, if it was that serious, would affect his photograph?
A  If it were a long exposure -- and if he were flashing, it wouldn't be a long exposure -- if it didn't come out and that was the explanation, then you would take it again.  I just don't know whether he would be aware or not.

MR. MURTAGH:  Your Honor, I MOVE TO STRIKE that answer if he doesn't know.

THE COURT:  Well, I will OVERRULE it.

BY MR. SEGAL:
Q  Now, let me talk to you, if I may, about another one of the areas of your interest, which is the question of crime scene preservation and crime scene investigation, if I may.  Are you familiar with a textbook which is entitled Techniques of Crime Scene Investigation by Dr. Svensson, S-v-e-n-s-s-o-n, Dr. Wendell, W-e-n-d-e-l-l, and as revised and edited by Professor Nicol [sic], N-i-c-o-l [sic], in the Second Edition?  Are you familiar with that book?
A  Yes; I am.  Professor Nicol [sic], as a matter of fact, is a member of my Department.
Q  At the University of Illinois?
A  Yes; Illinois.
Q  Is this book, Techniques of Crime Scene Investigation, recognized within the field of criminal investigation as an authoritative treatise?
A  Yes.
Q  I would like to read to you a limited number of sections from the book and ask whether or not in your opinion as an expert you would agree or disagree with the statements made by Professors Svensson, Wendell and Nicol [sic] about techniques of crime scene investigation.

MR. MURTAGH:  I would OBJECT, Your Honor, unless we had been furnished with these in advance.

MR. SEGAL:  We are not required under Rule 803(18).

THE COURT:  Well, let me finish reading (18).

MR. SEGAL:  I will say, Your Honor, I will be glad to make the Government available a copy as soon as I finish using it now on direct and they may examine it as long as they need to.  It has also been here on my desk for about three days.

THE COURT:  All right.  Ask your question.

BY MR. SEGAL:
Q  In regard to Chapter 1, entitled, "Rules for the First Officer at the Scene," I will read you the section and ask whether you agree or disagree with the statements made in the text and whether they comport with good practice in the area of crime scene investigation.
     Reading from page 1:
     "...It is of the utmost importance to the success of the investigation that the officer who first arrives at the scene makes no errors, whether by commission or omission"?
A  I would agree with that.
Q  I will indicate the page number from which it came.  But this is still on page one.
     "...The first officer on the scene must therefore avoid diminishing or destroying potential clues which may eventually lead to the apprehension of the criminal"?
A  I agree.
Q  "...The extent of the preliminary measures must, of course, be in proportion to the type of the crime, the location of the crime scene, and the availability of personnel"?
A  I would agree.
Q  Going to page two:
     "...First of all, the officer must not approach the scene hastily; rather, his moves should be calm and deliberate"?
A  Yes.
Q  "...Errors committed during interrogation and other aspects of the preliminary investigation can perhaps be corrected, but errors committed in the safeguarding and examination of the crime scene can never be rectified"?
A  That is true.
Q  Going on to the same page under the heading, "Recording of Time":
     "...Precise notations of the time are of great value to the detective officers"?
A  Correct.
Q  On page three:
     "...Nothing on the scene may be moved unless absolutely necessary for one reason or the other, because the crime scene must, as far as possible, be intact when the investigating officers arrive.  If it should be necessary to recover or to move an object in a public area because it may be disturbed by onlookers, the officer must think of the possibility that it may bear fingerprints.  Before any object is moved, its location must be noted.  The exact location of an object may turn out to be of vital importance to the case."
     Do you agree or disagree?
A  I agree.
Q  In regard to this matter of noting, do you have any additional comments or thoughts about what is proper police practice in regard to crime scene investigation?

MR. MURTAGH:  OBJECTION, Your Honor.

THE COURT:  OVERRULED.

THE WITNESS:  Crime scenes are recorded by three methods.  One we have heard about, namely photography.  The other two methods are: notes, which one writes on a pad or notebook; and the other is by means of sketches.
     There are different values to photographs versus notes and versus sketches.  For example, sketches permit one to have exact measurements as to location and relative positions of objects, such as an overturned table and furniture that may be nearby or contiguous or touching it.
     Notes permit chronological accounting of who was at the crime scene, when things were done at what time, and so on.  Photographs permit recording -- freezing what was present.  But you can't always show relationships as perfectly as you might want to show them, and hence the reasons for sketches, or the need for sketches.
Q  Let me direct your attention now to page 4, entitled "Protecting the Scene."
     "As soon as possible after arriving at the scene, the officer should take steps to protect the scene from curiosity seekers and family members."  Do you agree or disagree?
A  I certainly do agree.
Q  "If an injured person is on the scene, he shall, of course, be given first aid immediately, even though valuable clues may be unavoidably destroyed."  Do you agree or disagree?
A  The protection of life is very important.  It supercedes the protection aspect for that area where the activity to save a life is involved.
Q  "When a doctor or ambulance personnel arrive, the officer should, without in any way interfering in their work, instruct them how to enter the scene so as not to disturb it needlessly.  He should further observe the action of the medical personnel and note what objects they moved, where they walked, et cetera."  Do you agree or disagree?
A  I agree.
Q  Now, let me interrupt the review of this treatise and your opinion about it and ask you in regard to the situation with the body of Dr. MacDonald as it was removed from the crime scene.  There has been testimony here that medical personnel entered through the --

MR. MURTAGH:  (Interposing)  OBJECTION, Your Honor.  Counsel is testifying.

MR. SEGAL:  If I misstated testimony, I will accept whatever correction the Government suggests I should make.

THE COURT:  All right, proceed.

MR. SEGAL:  Let me first remove these boards, please.

BY MR. SEGAL:
Q  There has been testimony in this case, as I recall, that the medical personnel who removed the body of Dr. MacDonald came through the front door of the house, down the hallway, and with a gurney -- wheeled stretcher -- and then removed Dr. MacDonald's body down the same path.  There was also testimony that there were MPs, including Lieutenant Paulk, the commanding officer on the scene, present in or about the living room.  Was such a practice of letting medical personnel come in that way consistent with good police practices in terms of perserving the crime scene?
A  You have a problem here.  You have essentially -- well, at least two major areas of interest -- namely, the master bedroom where Dr. MacDonald was located and the entrance to the premises through the utility room.  Then you have the hallway with the bloody footprints, then you have the dining --

MR. MURTAGH:  (Interposing)  OBJECTION; MOVE TO STRIKE that as not being in accord with the evidence in the case.

THE COURT:  All right, I will SUSTAIN that.  Just confine your answer to the question which he asked you.

BY MR. SEGAL:
Q  Ignore the preface to whatever is or isn't on the floor of the hallway; all right?  Go on with your answer, Professor Osterburg.
A  You have in the living room an area where Dr. MacDonald describes a struggle taking place.  At this point in the investigation, which is more important to preserve would not be apparent to the Lieutenant Paulk or the investigator who was there which he should preserve.  So, it would occur to me that the path which requires the shortest -- provides the shortest -- method of getting out of the house would be the preferable one, and I recognize that that means the persons carrying Dr. MacDonald would have to go through the utility room and that that is the point of entry, and we certainly don't want to have that disturbed.
     But if the medical personnel were given instruction that they must be extremely careful not to brush and rub against doorjambs, doors, and so on -- that I think, because it is the shortest path out, I would have used that path.
Q  Now, Professor Osterburg, in that same regard, what about the use of a wheeled stretcher -- a gurney -- to be taken through the house?  Does that comport with what you believe is proper crime scene protection practices?
A  I believe a hand-carried stretcher should be used under these circumstances.
Q  Why is that, sir?
A  Well, if there is anything on the floor by way of footprints or other traces --

MR. MURTAGH:  OBJECTION, Your Honor.

THE COURT:  OVERRULED.

BY MR. SEGAL:
Q  Yes, go ahead.
A  It would be disturbed, possibly destroyed.
Q  All right, now, again, asking you further about your opinions as to whether you agree or disagree with the treatise that we are talking about, directing your attention to page 6:
     "The officer should arrange for the correct removal and custody of the clothing of the victim.  All too often, when the hospital or mortuary is contacted for the purpose of obtaining the victim's garments, they may be incinerated or, at best, wadded into an almost hopeless mess after being cut or ripped from the body.  It would be to the advantage of all investigative agencies to make periodic visits to their local hospitals in order to instruct medical personnel in the proper handling of evidence.  The medical profession's prevalent lack of interest in and knowledge of evidence is surprising, considering the otherwise broad scope of their training."  Would you agree or disagree with that statement and the recommendation that came thereafter?
A  I would agree with it, depending upon the area one is talking about.  If there are 50 or 20 hospitals in an area, such as a large city, and there is constant turnover of personnel in those rooms, I think it is sort of impractical to think that you could educate those individuals.  On the other hand, if there is some reasonable stability and one or two hospitals are involved and a minimum number of people serving the emergency area, then that is a feasible thing to do.  In any case, it is a desirable thing to do.
Q  Continuing on page 10 under the heading "What to Do Until the Investigative Personnel Arrives."
     "While waiting for the investigators to arrive, the officer need not remain idle.  The following general rules should guide his conduct during this time..."  And I think I will ask each one of these separately as to whether you agree or disagree.
     "1.  Write down" --

THE COURT:  (Interposing)  Let me just ask him; you have read the book?

THE WITNESS:  Yes.

THE COURT:  Is there anything in the book with which you disagree?

THE WITNESS:  It has been some time, Judge.  When you say "anything," I think that I would have to say I can't answer.

THE COURT:  (Interposing)  You know what he is going to ask you; don't you?

THE WITNESS:  Not necessarily.

THE COURT:  Well, you will have to ask him, then.  I thought I would shorten it for you.

MR. SEGAL:  I appreciate that, Your Honor.  There are actually only a few more limited sections.

THE COURT:  That so often happens.  When you try to shorten it, you wind up lengthening.  Go ahead.

BY MR. SEGAL:
Q  Under the heading, "What to Do Until the Investigative Personnel Arrives":
     "(1)  Write down names of witnesses and other persons who are known to have entered the scene.  This is important to the subsequent sorting of fingerprints and other clues found at the scene"?
A  That's a sound idea.
Q  "(2)  Who was at the scene when the officer arrived.  This information can become particularly important if the crime has just occured"?
A  Yes.
Q  "(3)  Establish the basic facts.  A factual account of what happened is of great assistance to the investigators when they arrive because it helps them to decide on the next move.  However, the officer should, under no circumstances, undertake lengthy and detailed interrogations which may damage later questioning or give rise to suggestion in the statements of witnesses"?
A  When he says "establish the basic facts," I go along with that and the business about questioning witnesses; yes.  But any extensive investigation, other than the basic facts, I think should be left to the investigator.
Q  Would you agree also with the statement:
     "Furthermore, the officer cannot properly guard the scene if he is occupied with interrogations"?
A  That is true.
Q  Finally, from this section:
     "Protect evidence which is in danger of being destroyed.  During rain or snow, divert water and cover tracks with boxes, cardboard, et cetera.  If the crowd of onlookers becomes large, it may become necessary to expand the protective measures at a given location in order to prevent the trampling of evidence.  When the investigating officers arrive, the first officer should report all that he has learned and observed and the action he has taken.  This is of great importance to the estimation and planning of the crime scene investigation.  It is particularly important that he report the extent to which the scene has been altered, objects have been disturbed or moved, et cetera."  Do you agree or disagree?
A  I would agree with that.
Q  Continuing:
     "...The continued protection of the crime scene.  In protecting the scene after the investigators have arrived, the officers detailed to guard the scene should act only on order from the investigator in charge.  During the technical examination of the scene, it is the crime scene investigator who is in charge of the officers on guard duty as well as the scene proper"?
A  I would agree that that is good practice.
Q  "...No one is allowed access to the crime scene without the investigator's permission, not even other investigators or superior officers"?
A  An excellent idea.
Q  "...Command officers would render a prime service to their investigators if they would preserve the integrity of the crime scene with a passion and set an example for other officers"?
A  Amen.
Q  "...Those officers permitted on the scene must move with their hands in their pockets"?
A  I would agree.
Q  "...Through carelessness, or without being aware of it, they may touch objects on the scene.  Police officers on sightseeing tours through the crime scene sometimes destroy more good evidence than any body of laymen could possibly accomplish"?
A  I am not sure of any body of laymen, but I would agree.  People going through the crime scene, whether a police officer or a layman, can destroy evidence.
Q  Would you agree the same would apply to ranking military officers who are not engaged in actual crime scene investigation?

MR. MURTAGH:  OBJECTION, Your Honor.

THE COURT:  SUSTAINED.

BY MR. SEGAL:
Q  Now, turning to Chapter Two -- and this is the final area we are dealing with -- "Rules for the Crime Scene Investigator."
     "...The purpose of crime scene investigation is partly to effect a complete reconstruction of events with respect to the sequence of events, method of operation, motive, property stolen, and whatever else the criminal may have done, and partly to recover the clues which will serve as evidence against the criminal."  Do you agree with that?
A  I would agree with that.
Q  Page 14:
     "...The crime scene investigator should not allow a nervous superior or doctor who has been called in a death case to influence his calm deliberation on a case before he undertakes the actual examination"?
A  I would agree.
Q  "...Nor should he speed up the investigation on their account.  They will have to wait because the investigator is personally responsible for mistakes, and therefore he has the right to determine his own actions at the scene"?
A  I agree.
Q  "...If an experienced crime scene investigator is asked to give an account of how he proceeded at the scene, he may be hard put to formulate a general rule.  This is to be expected, since one crime scene is different from any other crime scene.  The basic qualities of a good crime scene investigator, however, are intuition and an eye for what needs to be done in each individual case, in addition to a thorough knowledge of the methods of locating and preserving evidence"?
A  I would agree, but I would amplify it by saying that experience is important also.
Q  You say "experience"?
A  Experience in crime scene investigation and follow-up.
Q  Continuing on page 18, referring to the subject of "Notes Taken by Investigators":
     "...Notes must be complete enough so that a complete reconstruction of the case could be made even 15 to 20 years hence."
A  That would be highly desirable.

MR. SEGAL:  I have no further matters in regard to this particular book.  I have some other examination, Your Honor.  Would this be an appropriate time to break?

THE COURT:  No.

MR. SEGAL:  All right, sir.

BY MR. SEGAL:
Q  Based upon your experience, knowledge, information and training, what is the possible likely effect on an investigation when these basic principles of crime scene protection are not followed by the investigators involved?
A  The opportunity presented by examining a crime scene are lost -- or may be lost.
Q  In regard to the questions I asked yo before about the proper procedures for fingerprinting or processing a crime scene for fingerprinting -- what is the potential effect on the criminal investigation of the failure to fully process for latent fingerprints a crime scene?
A  Again, the opportunity for connecting the crime scene and the criminal together through fingerprints is lost.

MR. SEGAL:  Thank you, Professor Osterburg.  You may examine.

THE COURT:  Any questions?

MR. MURTAGH:  Yes, sir.


C R O S S - E X A M I N A T I O N  11:16 a.m.

BY MR. MURTAGH:
Q  Professor Osterburg, I believe on direct examination you testified you joined the police department in 1940?
A  That is correct.
Q  You retired in 1960; is that correct?
A  Yes.
Q  Was that service continuous?
A  I believe so.
Q  So your Army Reserve service -- let me ask you, you said you were commissioned in the Army Reserve; is that correct?
A  Correct.
Q  That was the Military Police Corps?
A  Correct.
Q  Did you ever serve in the Military Police Corps on active duty?
A  Summer training programs?
Q  No, sir; that is not my question.  By "active duty" I mean -- well, for example, did you serve in the Military Police Corps during World War II?
A  No, sir.
Q  How about Korea?
A  No, sir.
Q  I believe on direct examination you testified that you were a detective; is that correct?
A  Correct.
Q  Were you ever a homicide detective?
A  I was a crime scene -- I was a member of the staff of the crime laboratory.  We went to crime scenes.  The answer is, I was not a homicide detective as such.
Q  Well, what kind of detective were you, as such?
A  I was a member of the staff of the crime laboratory who went to crime scenes, and who was involved with people in homicides.  I have been to over 200 homicides.
Q  Okay; when you got to the scene at these various homicides, was that as a result of the lab team, if you will, being summoned?
A  Yes.
Q  Would it be correct to say that you were not the first homicide detective on the scene?
A  That is correct.
Q  Or the first officer on the scene?
A  That is correct.
Q  Let me ask you, when did you last work a crime scene as a crime scene technician?
A  Somewhere around 1951.
Q  1951?
A  Yes.
Q  Let me ask you, after your last experience with a crime scene in 1951, where were you next assigned?
A  I was assigned to develop the unit that was going to implement a new law that had been passed in New York State, and it was called the Intoxicated Drivers Testing Unit.  An implied consent law, which you are probably familiar with, was passed.  The department had to implement it, and I was the person chosen to provide the technical expertise and also to run it.
Q  Did that deal primarily with problems involving drunk drivers?
A  Yes.
Q  That was 1951?
A  1951-'52, until about '53.
Q  Professor Osterburg, when did you begin teaching while still employed by the police department?
A  1955.
Q  Was that a full-time occupation?
A  Full-time.
Q  Let me ask you what proportion of your time since 1955 up until your retirement in 1960 was devoted to police work in the field?
A  I was full-time teaching, so I was not in the field.
Q  Did you ever co-author a textbook?
A  I did.
Q  What was the title of that, sir?
A  An Introduction to Criminalistics.
Q  Who was the co-author?
A  Charles E. O'Hara.
Q  Was that published in several editions?
A  That was published in 1948, and it was republished in 1973 by Indiana University Press.  That is not a new edition, though.
Q  My question is, did there come a time when you ceased to corroborate or co-author with Mr. O'Hara on this textbook?
A  Yes.
Q  When was that, sir?
A  Mr. O'Hara and I were partners in the police department.  O'Hara went into the Air Force during the Korean War and then we never got together as a team in the police department.
Q  Is that textbook still in use today?
A  Yes.  It is not out of print; it is still available.
Q  Do you use it in your own courses today?
A  Yes.
Q  The revised edition?
A  It is not really a revised edition; it is a reprint of the original edition.  The answer is yes.
Q  Do I take it, then, that it has not been revised substantially since 1948?
A  That is correct.  A basic book is a basic book, Counselor.
Q  Well, let me just ask you: basics do change, do they not?
A  There are things that would be added; yes.
Q  Now, this particular crime scene -- referring to the MacDonald quarters -- let me ask you, have you reviewed all the photographs taken of this crime scene?
A  No.
Q  Have you reviewed all of the items that have been introduced in evidence in the court thus far?
A  No.
Q  Have you reviewed the laboratory reports -- and by that I mean all the CID laboratory reports, all the FBI laboratory reports --

MR. SEGAL:  (Interposing)  Your Honor, I would suggest the question be restricted to the area which the witness has testified on.

MR. MURTAGH:  Your Honor, I thought he was all over the crime scene.

THE COURT:  If this is an OBJECTION, I will OVERRULE it.

MR. SEGAL:  Fingerprinting, Your Honor?  All right.

BY MR. MURTAGH:
Q  Do you recall the question, sir?
A  Would you rephrase it?
Q  Have you reviewed all of the laboratory reports in this case?
A  No.
Q  Do you know the sum total of items that were collected for evaluation as evidence in this case?
A  No.
Q  Do the sum total of photographs of latent areas that were taken in this case?
A  Latent areas?
Q  Yes, sir.
A  No.
Q  And I believe you testified you have not reviewed them?
A  Correct.
Q  Okay, are you familiar with the blood evidence in this case?
A  I know there is a lot of blood, but when you say "familiar with the blood evidence," you mean the groupings?
Q  No, sir; I am not really concerned with which group is where.  Are you familiar with the distribution of suspected stains and actual stains in the crime scene? Q  Well, let me ask you, is this crime scene, as far as you are concerned, merely a fingerprint scene?
A  No.
Q  Would it be accurate to say it was also a blood scene?
A  As far as I am concerned?
Q  Well, as far as the crime scene as a totality, sir?
A  Oh, yes, indeed.
Q  Now, from a fingerprint scene, which is, I believe, the standpoint from which you testified?
A  Correct.
Q  Would it be accurate to say that it would be your opinion to dust the entire wall, the entire door -- whatever?
A  Well, when you say "the entire" -- you know, maybe it's a very tall mass -- but that crime scene should have been processed much more than it was.
Q  Well, that is not my question, sir.  My question is, with respect to any area, okay -- let's take that wall?
A  All right.
Q  Would it be your opinion that it would be better from a fingerprint standpoint to dust the entire wall?
A  You can't answer that for -- you will have to specify the wall.  For example, if there is a washing machine there, which is a heavy item, the likelihood of some intruder moving that to put a fingerprint there to see whether we would find it is remote; and so I wouldn't say the entire wall.  It would depend on circumstances.
Q  Okay, let me ask you, with respect to observable areas within the range of touching by people of, say, 5' 8" to 6' 3" in height -- would it be better to dust the entire wall?
A  I can't answer.  You tell me which wall.  Let me see the photograph and I'll answer that.
Q  Well, that isn't my question, sir.  What I'm saying is, is it your testimony that from a fingerprint standpoint you do not necessarily dust the entire wall, the entire door, the entire area, whatever it may be?
A  It would depend on the object, Counselor.  For example --
Q  (Interposing)  Well, all right, now --

MR. SEGAL:  (Interposing)  I think he is entitled to answer, Your Honor, and explain.

THE COURT:  I think he is entitled to have the question asked along the lines that he suggested that he would have an opinion about.  Ask it again.

BY MR. MURTAGH:
Q  In your opinion, Professor Osterburg -- now, let's take the north wall in Kristen's bedroom -- I'm sorry, I believe that would be the west wall in Kristen's bedroom, the area above the bed.
     From your viewpoint, would it be your opinion that a competent examiner would have to dust the entire wall?
A  May I see a photograph of it, please?
Q  I don't know that I have one right available.  Why don't you step down and take a look at the model -- directing your attention to this wall here?
A  You are referring to the north wall?
Q  I think it is the west wall of the north bedroom -- would be a more accurate description?
A  And your question is?
Q  From a fingerprint standpoint, and from a fingerprint standpoint only, would it be your opinion that you would have to dust the entire wall?
A  When you say "the entire wall," --
Q  (Interposing)  Let me rephrase it another way.

MR. SEGAL:  Let him finish the question, please -- the answer.

THE WITNESS:  You mean north to south, top to bottom.

BY MR. MURTAGH:
Q  Let me ask you another way.  Mr. Osterburg, what areas would you not dust?
A  Can I tell you what I would dust?
Q  Yes.
A  I would process the entire wall area around that bed.

MR. MURTAGH:  Okay, thank you.

THE COURT:  Now, we will take a recess and come back at 11:45.  Don't talk about the case.

(The proceeding was recessed at 11:30 a.m., to reconvene at 11:45 a.m., this same day.)


F U R T H E R  P R O C E E D I N G S  11:45 a.m.

(The following proceedings were held in the presence of the jury and alternates.)

THE COURT:  Any further questions of this witness?

MR. MURTAGH:  Yes, sir.

THE COURT:  Let him come back, then.

(Whereupon, JAMES OSTERBURG, the witness on the stand at the time of recess, resumed the stand and testified further as follows:)


C R O S S - E X A M I N A T I O N  11:46 p.m.  (resumed)

BY MR. MURTAGH:
Q  Okay, Professor Osterburg, I believe just before the recess, I was asking you about the west wall in the north bedroom -- Kristen's room?
A  Yes.
Q  Do you recall answering in response to a question that you had processed the entire area around the bed?
A  Yes.
Q  Now, sir, do you know whether any blood spatters were found on that wall?
A  The processing for fingerprints should take place after the blood --
Q  (Interposing)  That was not my question.
A  I do not know.  I would assume it was, but I do not know.
Q  Do you know how many there were?
A  No.

MR. SEGAL:  It does seem irrelevant, Your Honor, if the witness has answered it and said that he thought it should have been done after the blood has been processed.

MR. MURTAGH:  I don't believe that was the question.

THE COURT:  I don't believe he ever got to answer that question.  I guess you have supplied it, but in any event, proceed with your questions.

BY MR. MURTAGH:
Q  Professor Osterburg, you responded that the collection of fingerprints should be done after the blood is collected?
A  Yes.
Q  Is it accepted practice to mark areas of suspected blood stains for collection?
A  To mark them for collection?
Q  Yes, for eventual collection.
A  Some people might do it that way.
Q  Let me ask you a hypothetical question.  Let's assume that you have a seven-room house which has blood stains in all but I think one room, and in processing the scene, a determination has to be made as to which stains to collect.  Do you understand that?
A  There are two determinations, Counselor, that need to be made relative to blood stains.
Q  Yes.
A  One is the stain which will give direction from whence it came.  The other is collecting stains for grouping purposes.  Now, those are two different matters, and have to be treated differently.
Q  (Interposing)  My question is --

MR. SEGAL:  (Interposing)  Excuse me.  Let him finish the answer.

BY MR. MURTAGH:
Q  What my question is: do you agree or disagree that for whatever purpose the blood stain is to be eventually collected, it should be marked first by a chemist to delineate the areas of the stain?
A  I would say that the chemist -- not the chemist -- he is collecting it for grouping purposes.  It should be photographed first so we have directionality if we are interested in reconstructing how the crime was committed.
Q  Do you know whether that was done or not?
A  I do not know.
Q  You haven't seen those photographs?
A  Of blood stains showing directionality one to one, no.
Q  Have you seen the blood stains on that wall -- referring to the west wall of Kristen's bedroom?
A  Have I seen those?
Q  Yes, sir.
A  My recollection is they were removed.  I am not sure now.
Q  You don't know whether you saw the stains prior to their being removed and photographed?
A  Oh, in the photographs?
Q  Yes.  Have you seen the photographs of that wall with the stains prior to being removed?
A  I have seen the photographs.  My attention was on fingerprints and not blood stains.
Q  That was not my question.

MR. SEGAL:  Your Honor, I would ask Mr. Murtagh to please let the witness finish the answer before --

THE COURT:  (Interposing)  Well, his OBJECTION, though, Mr. Segal, is that he is answering a question that he didn't ask.  He wants an answer to that question, but now if there is an explanation, he is going to get an opportunity to explain.

MR. SEGAL:  I agree, Your Honor, but I am not always sure whether the question is what is not clear or the answer not clear.  All I am saying is whatever the witness is saying -- I thought the rule was to let him finish and he can certainly follow up without any OBJECTION by me for anything else he had asked for.  I only ask that the witness be able to finish his answer before being interrupted.

THE COURT:  Ask your question.

BY MR. MURTAGH:
Q  Professor Osterburg, to your knowledge, have you seen the photograph depicting suspected blood stains on the west wall of Kristen's bedroom prior to the collection of those stains?
A  I cannot answer that question.
Q  Okay, let me ask you to assume for the sake of a hypothetical question that such blood stains exist on that wall.
A  Are you talking of splatters?
Q  Spatters, yes.  Now, from a blood standpoint, in your opinion, would it be inappropriate to mark the area of the stains for eventual collection?
A  They should be photographed first before any mark is placed on them.  Then, if they are of sufficient quantity that they would be worthwhile collecting for grouping purposes, it is conceivable that some people under these circumstances might choose to mark those stains that are large enough for grouping purposes.
Q  Well, that isn't my question, Professor Osterburg.  My question is: the stain of whatever size, whether it can be grouped, typed, or merely identified as blood or human blood, would you disagree that it is other than accepted practice to mark the area for eventual collection of the stain?
A  I would disagree.
Q  You would disagree?  You would not mark the area?
A  I would not mark the area.  For what purpose?
Q  For what purpose, sir?
A  Yes.

THE COURT:  Well, don't argue with him, now.  Just ask another question.  He answered that one.

BY MR. MURTAGH:
Q  You would not mark the area?
A  I am sorry, Judge.  I am a teacher and sometimes I hope I am able to teach.  Maybe I am improper.

THE COURT:  Maybe we can arrange for you to continue his forensic science education at some recess, but I am talking about just getting on with this case.

BY MR. MURTAGH:
Q  At any rate, you would not mark the area, in your opinion?
A  The small stains that are not suitable for grouping.
Q  That is not my question, sir.  My question is: would you --
A  (Interposing)  I would mark part of the area and not part of the area, so when you say, "I wouldn't mark the area," you have got me saying that "I wouldn't mark the whole area."
Q  You would not mark the whole area?
A  I can conceive of a criminalist at a crime scene of this magnitude marking stains sufficiently large so that they can be grouped.
Q  So, would it be correct to assume from that answer that there might be stains which in your opinion would not be sufficiently large for grouping purposes which would be outside the area marked?
A  Which would be left unmarked; yes.
Q  Would you dust those areas outside the marking?
A  Carefully.
Q  You would dust them?
A  I would carefully dust them.
Q  In your opinion, sir, is there any danger of damaging a stain by dusting it?
A  Yes.
Q  Would it be fair to say that as between a blood scene and a fingerprint scene, some compromise has to be struck?
A  What do you mean by "compromise"?
Q  Let me explain that.  From a fingerprint standpoint, the optimum would be to dust every conceivable area.  Would you agree with that?
A  Yes.
Q  From a blood standpoint, it would be better not to have any fingerprint dust on the area at all?
A  That is correct.
Q  But if you have both a blood stain and a fingerprint stain, my question, sir, in your opinion, do you not have to have some compromise between where --
A  (Interposing)  The answer is yes.  The compromise could be effected in the following fashion.
Q  Okay, sir, go ahead.
A  Those areas where the likelihood of a perpetrator or perpetrators touching or evidence that they were there or likely to have been there would probably be better processed for fingerprints if the blood stains in those areas are essentially small stains where pattern distribution of splashing is involved.
Q  So, in your view, sir, fingerprints would be more important or potentially more important than blood stains?
A  Well, you haven't destroyed the small blood stains if they have been photographed for splatter distribution.  You have preserved them photographically.  At that point, you can then process --
Q  (Interposing)  Are you saying that small stains can never be typed?
A  Relatively small stains cannot be typed; yes.  You need a quantity of blood.
Q  Can they be identified as human blood?
A  Oh, yes.
Q  Let me ask you with respect to blood stains, in your opinion, sir, would a number of perpetrators exiting from the MacDonald crime scene via the master bedroom and through the utility room, would they necessarily have had to touch the swinging door between the utility room and the master bedroom?
A  If it were closed; yes.
Q  Do you know that it was closed?
A  I have no idea of the condition of that door at the time that they exited.
Q  Have you see the crime scene photographs?
A  I have seen some crime scene photographs.
Q  Have you seen the crime scene photographs depicting the position of that door?

MR. SEGAL:  Your Honor, that is not the question that is being put to him -- whether when the intruders were there was it open or shut.  The question of what the door looked like at the crime scene is not precisely the issue that he is being questioned about.

THE COURT:  Ask your question.

BY MR. MURTAGH:
Q  Will you answer, sir?
A  Would you repeat the question?
Q  My question is: have you seen the crime scene pictures which depict the position of that door?
A  I have seen a crime scene picture which shows the door as open.
Q  Have you read the trial testimony of Mr. Tevere?
A  Some time ago, I read that and I really don't recall that testimony.
Q  You don't recall that testimony with respect to the position of that door?
A  No.
Q  Have you read any of the Defendant's statements with respect to the position of that door as he viewed it upon entering the master bedroom?
A  No; I have not.
Q  Based upon that, do you have any reason to believe that that door was other than open?
A  Based on something I haven't heard, I can't make any statement.
Q  Well, didn't your hypothetical with regard to fingerprints assume that that door was closed?
A  My hypothetical didn't assume it.  I said that I would process that door because it is such a key door and it is so easy to do that it should be processed irrespective of what anybody says, whether it is opened or closed, because if you had been at a crime scene, you know that things are not always perfect.
Q  I certainly would not disagree with that.  My question, Professor Osterburg, is that I believe you stated on direct examination that in your opinion, one of the reasons that you would process this door, in fact, one of the things that indicated processing the door, was that someone would have pushed on that door to open it?
A  Could have pushed on the door, and it is so easy to process, why ignore it?  I would over-process in a scene like this rather than underprocess.
Q  Are you saying that door was not processed at all?
A  I am saying that it was not processed on but one side -- the utility room side.
Q  Wouldn't that side have been closest to the wall like a refrigerator or a washer?
A  If it opened into the utility room; yes.
Q  So, my question is: does not your opinion depend upon whether that door was opened or closed?
A  No.  My opinion says that that door ought to be processed willy-nilly.
Q  Would you agree that if that door were open, any intruders, if there were any, could enter into the master bedroom without touching that door?
A  Yes, they could enter without touching the door.
Q  Would you also agree that anyone exiting from the master bedroom so as to throw something out the back door would also not touch the utility room door?
A  Not necessarily; no.
Q  Did you find any areas on that door which indicated the presence of suspected blood stains?
A  I don't believe so.  Again, I was not looking at blood stains.  I was looking at fingerprints.  Someone else was doing that.
Q  So, in other words, your testimony with regard to the processing of the crime scene is really limited to the question of dusting for fingerprints?
A  So far.
Q  Now, with respect to the door to Kristen's bedroom, do you know whether that was open or closed?
A  No.
Q  Do you know what the Defendant said with regard to that door?
A  No.
Q  Do you know what the MPs said with regard to that door?
A  No.
Q  Do you know whether it was possible to see into that room or not from the hallway?
A  No.
Q  Do you know whether the light was on or off?
A  No.
Q  Now, with regard to the living room, you would have dusted the whole wall, I take it, above the couch?
A  Above the couch; yes.
Q  Let me ask you: would you have dusted the whole wall if there was a possibility of suspected blood stains of a minute quantity on that wall?
A  Are they visible?
Q  That isn't my question, sir.  I said a possibility of minute blood stains?
A  I am not familiar with the blood stains that aren't visible, that are so minute that they are not visible.
Q  Would you agree, sir, or do you know whether blood can be detected which is not visible to the naked eye?
A  Blood can be detected among other things by a reaction called a benzidine reaction which is a very sensitive reaction; yes.
Q  Do you know what the testimony was in this case with regard to the stains on that wall?
A  I do not.
Q  Do you know whether there was blood on that wall or not?
A  I do not.
Q  Now --
A  (Interposing)  Excuse me, Counselor.  If the only test they could get is the benzidine test or reaction, that is a meaningless reaction in terms of it says there may be blood there.  But you can't do anything further with it.
Q  Let me ask you, since you appear to be testifying about the benzidine test: what if they got a negative reaction?  Would that be meaningless?
A  No.  That is very conclusive reaction.  There is no blood present.
Q  And in your opinion if there was a negative benzidine test, there would be no blood present on the living room wall above the couch?
A  That is right.
Q  Now, with respect to the kitchen door, I believe you testified that you didn't see any evidence of fingerprint processing in that area?
A  The door going to the outside?
Q  Yes, sir?
A  Correct.
Q  Do you know what the condition of that door was when the investigators got to the scene?
A  No.
Q  Do you know whether it was locked or open?
A  No.
Q  Do you know whether the Defendant went into that kitchen or not?
A  No.
Q  With respect to Kimberly's headboard, do you know whether any blood stains were found on that headboard?
A  No.
Q  Would you agree that if there was a possibility or an indication of blood stains on that headboard that it should not be contaminated entirely with fingerprint powder?
A  It would depend upon the size of the stain.  And you are talking about grouping purposes, I assume.
Q  I am talking about the blood stains, period, whether they can be grouped or detected?
A  Well, my testimony is that if the stain can't be grouped --
Q  (Interposing)  It is of no value?

MR. SEGAL:  Your Honor, I OBJECT to the interruption of the witness in mid-answer.

THE COURT:  Let him finish his answer, please.

MR. MURTAGH:  Yes, sir.

THE WITNESS:  I did not say or infer that it is of no value, because when you have two aspects to blood and blood stains, one has to do with the origin -- the point of origin -- of the blood.  And that is determined from the splash.  That can be very important in trying to reconstruct how the crime possibly occurred.
     To do that, one needs to record the details of the shape, the outline of the splash.  That is done photographically and with sketches.  Once that is done, if the stain is too small for grouping purposes, then processing for fingerprints would be in order.

BY MR. MURTAGH:
Q  Do you know, sir, what the distribution of the splatter patterns were in the south bedroom; that is, Kimberly's room?
A  No; I do not.
Q  Do you know whose blood was found on the -- or whose blood type was found on the wall opposite that bed?
A  No; I do not.
Q  Okay.  Now, Professor Osterburg, you testified about a bloody footprint; is that correct?
A  Yes.
Q  Okay.  To your knowledge, sir, where was that footprint found?
A  It was in the hallway.
Q  In the hallway, sir?
A  There were boards -- I --
Q  (Interposing)  Why don't you step down?

MR. SEGAL:  (Interposing)  Let the witness finish the answer, please.

BY MR. MURTAGH:
Q  Do you know where the footprint --

MR. SEGAL:  (Interposing)  Your Honor, I OBJECT to this process.

THE COURT:  I will let you object.

MR. SEGAL:  All right.

THE COURT:  But don't lecture Counsel or anyone else.  Just make your objection and I will rule on it.

MR. SEGAL:  Let me say that the unfortunate consequence --

THE COURT:  (Interposing)  Just object.  I will rule.

MR. SEGAL:  My objection is to please let the witness finish the answer, Your Honor.

THE COURT:  All right.  Let the witness finish the answer.

MR. MURTAGH:  Yes, sir.

THE WITNESS:  I have seen photographs of a footprint on planking or wood -- wood boards.  The exact location, I am not sure.

BY MR. MURTAGH:
Q  You are not sure, sir?
A  That is right.
Q  Do you have any reason to disagree that it was not found in the hallway?
A  I am not sure, sir.  I am not sure.
Q  But I believe you testified on direct examination with respect to a stretcher -- that the possibility of a wheeled stretcher could destroy a footprint in the hallway?
A  If one were present; yes.
Q  If one were present?  If one were not present?
A  It couldn't destroy it.
Q  Now, with respect to this bloody footprint -- and let me tell you that there has been testimony here that it was found in the north bedroom exiting into the hallway; that is, from Kristen's room -- do you know when it was collected, sir?
A  No.  By "collected," you mean --
Q  (Interposing)  Cut out?
A  The planks cut?
Q  Yes, sir?
A  No; I do not.
Q  Okay.  Do you know whether after it was cut out whether it was examined by the fingerprint examiners at the laboratory?
A  Yes.  I believe I read testimony to that effect -- Mr. Medlin's testimony.
Q  Is it your understanding that Mr. Medlin was referring to the planks themselves or the photograph?
A  I thought it was the planks and the photographs taken of the planks.  But I am not sure.
Q  You are not sure which?
A  No.
Q  Have you seen the photographs of the footprint?
A  Yes.  Taken at the laboratory?  I have seen taken at the laboratory and in situ -- as situated.
Q  Okay.  But you don't know whether Mr. Medlin's testimony as to whether the other examiners could see the ridge detail pertains to the photograph or the planks themselves?
A  No; I don't.  I assume if there are ridge details, they would talk about them.
Q  Do you know whether the planks themselves were processed for blood stains?
A  No.
Q  Do you know that they were not?
A  I don't know whether they were or weren't.
Q  Let me ask you to assume for the purpose of my hypothetical that the blood was removed subsequent to Mr. Medlin's identification of the footprint at the laboratory for grouping purposes?
A  I assume this would be after they had an opportunity to attempt to photograph any ridge lines that were present.  Is that what you are stating?
Q  I am asking you whether you know whether the blood was removed?
A  I have no idea what they did with that in the laboratory.
Q  All right.  Now, let me ask you: if blood was removed for grouping purposes, would that account for the disappearance of ridge lines, in your opinion?
A  If that were done, it would be such negligence, I can't believe it.

MR. MURTAGH:  Your Honor, I MOVE TO STRIKE that answer.

THE COURT:  Don't consider that answer, members of the jury.

BY MR. MURTAGH:
Q  Let me ask you, Professor Osterburg, with respect to this footprint, what is your understanding or your knowledge of when this footprint was a questioned footprint?  Do you understand my question?
A  When it was a questioned footprint?
Q  Yes, sir?
A  It was questioned until Mr. Medlin said he saw some characteristics which coincided with characteristics found in Dr. MacDonald's foot.  At that point -- it still remained a questioned footprint and still should have been preserved, photographed and kept intact.
Q  But that was from a fingerprint standpoint?
A  That is from a bloody footprint standpoint.
Q  What about the blood group of the footprint?
A  Why is that of such importance?
Q  Well --
A  (Interposing)  Blood group merely says that it might be somebody's blood.  This is saying it is somebody's print.  There is a big difference.

MR. MURTAGH:  Your Honor, I would MOVE TO STRIKE that answer as being non-responsive.

THE COURT:  I will ask the witness not to argue with Counsel.  Just answer the question.

BY MR. MURTAGH:
Q  Do you know, sir, what the Defendant said on the morning of February 17th with respect to the footwear of the alleged intruders?
A  I recall something about high black boots -- a woman.
Q  High black boots?
A  Black -- well, knee-high.
Q  Would you disagree that Dr. MacDonald told one of the investigators that none of the intruders were barefoot?
A  I really don't recall the details.
Q  Do you know whether Dr. MacDonald has ever said, in respect to that footprint, that he must have stepped in blood?

MR. SEGAL:  OBJECTED TO, Your Honor.

THE COURT:  OVERRULED.

THE WITNESS:  No, I don't know.

BY MR. MURTAGH:
Q  Now assume from my hypothetical that he did say he stepped in blood, and further assume that he said none of the intruders were barefoot, and further assume that Mr. Medlin had compared that footprint on the floor with Dr. MacDonald's record prints; okay?
A  Yes.
Q  At that point, would it be improper to consider that footprint no longer questioned from a fingerprint standpoint and turn it over to the technicians for blood examination?
A  I think it would have been improper; yes.
Q  Do you know, sir, what the relationship between the blood group of the footprint is with respect to the other blood groups found in the north bedroom?
A  No, sir.
Q  And would it be your opinion that it is of no significance -- what blood type it is?
A  No; I didn't say that.  I said that the fingerprint -- if the ridge details were there and was destroyed to take samples of blood, that is grossly improper in my opinion.  They could have been photographed and thereby preserved and then the stain could have been grouped.
Q  Now, with respect to that photograph, have you examined the record prints of Dr. MacDonald?
A  No.
Q  Well, then, is it correct to assume that you could not say whether that is his footprint or not?
A  I don't think anybody can say it is his footprint.  There are no ridge details.
Q  That isn't my question, sir.

MR. SEGAL:  No, no.  The answer is not done.  OBJECTION.

THE COURT:  Have you finished your answer?

THE WITNESS:  Yes.

THE COURT:  He finished.  He said he was finished.

MR. SEGAL:  I'm sorry.  I apologize.  I thought I was hearing the last words trampled on.

THE COURT:  All right, ask him one more, please.

BY MR. MURTAGH:
Q  My question, Professor Osterburg, is, based upon the photographs of that footprint and the record --
A  (Interposing)  You are talking about the bloody footprint?
Q  Yes, sir.  Can you say, in your expert opinion, that footprint was not made by Dr. MacDonald?
A  Owing to the absence of ridge lines, I cannot say that that is Dr. MacDonald's footprint.
Q  That is not my question, sir.  My question is: can you say that it is not his footprint?
A  I made no examination to determine whether it was or wasn't his footprint --
Q  (Interposing)  Thank you.
A  Are you talking of general morphology?  General morphology means "shape."
Q  Yes, sir.  I know.
A  Is that what you are speaking of?
Q  Well, I want to know whether you can tell us, based on your examination, whether it is not Dr. MacDonald's footprint?
A  My examination was limited to examining the print -- the bloody footprint -- to ascertain whether there was or was not ridge line detail which then could characterize the print so that everyone would agree as to whose it was if we had a record print with which to compare it.
Q  All right, now, with respect to certain rules --
A  (Interposing)  Certain what?  I'm sorry.
Q  I'm sorry -- certain rules or precepts to follow by the first officer at the crime scene that were read to you by Defense counsel -- did I understand you to say that the preservation of life takes precedence over the collection of evidence?
A  Yes.
Q  And would you agree that, from the investigator's standpoint, he should err on the side of the preservation of life as opposed to collection?
A  If there is to be error, yes.
Q  Do you know what Dr. MacDonald said to the MPs when they came into the house?
A  No.
Q  Do you know what instructions, if any, he gave them?
A  No.
Q  Do you know whether he told them or not that he was a doctor?
A  I believe I recall reading that.
Q  Do you know the extent of his injuries?
A  No.
Q  Would it be accurate to say that with respect to this crime scene, it was both a crime scene and a medical emergency?
A  You could view it that way.
Q  Would you view it any other way?
A  Yes; Dr. MacDonald apparently required some medical attention and it should have been gotten for him.
Q  Do you know that it was not gotten for him?
A  No; I understand he went to the hospital.
Q  Did you ever have a case involving an injured person at a crime scene who was not considered a suspect at the initial entrance of the investigators on the scene?
A  An injured person at a crime scene who was not considered a suspect?
Q  Yes.
A  Certainly.
Q  Okay, and did you ever have a case in which this injured person at a crime scene later developed as a suspect?
A  Certainly.
Q  But you didn't know it at the time?
A  That's right.
Q  In the light of hindsight, would it have been better to consider him a suspect from the outset?
A  Possibly.
Q  Now, with respect to --
A  (Interposing)  May I further qualify that -- the last answer?
Q  Certainly.
A  In homicide, whoever reports the homicide is generally considered to be a suspect even if it is someone ostensibly saying that they were just walking along a path and discovered a body.  They will be checked out to see what they were doing there and so on.
     Normally, in a homicide, the person that reports the homicide is considered a suspect, but it varies in degree, depending upon circumstances.
Q  Now, let me add another fact or another hypothetical: suppose that person who reports the crime is injured in some fashion and demands medical attention?
A  Well, they should get medical attention.
Q  Well, my question is --
A  (Interposing)  If the injuries you perceive -- if they look as though you should, you err on the side of getting medical attention.
Q  And you would not consider him a suspect or treat him as a suspect as opposed to a medical emergency?
A  Well, they need not be separated.  You could -- they need not be separated.  A person could be treated and still be a suspect.
Q  Treated at the crime scene?
A  No, at the hospital?
Q  But you would not retain the suspect at the crime scene?
A  Not if he needs medical aid; no.
Q  You wouldn't interrogate him at the crime scene?
A  No.
Q  You wouldn't take his clothes off at the crime scene for preservation?
A  No, I'd get them at the hospital.
Q  Now, with respect to these precepts that Mr. Segal read you from the textbook, my question is: did I understand you on direct to say that you had participated in collection of evidence at some 200 crime scenes?
A  No; I said homicide crime scenes.
Q  Homicide; yes.  I'm sorry.
A  Many, many more crime scenes -- not homicide crime scenes.
Q  Let's talk about homicide crime scenes.  How many?
A  Yeah.  The answer is yes.
Q  Two hundred; okay.  How many of those, in your opinion, were properly processed?
A  When I was doing it?
Q  No, sir; with respect to those scenes.
A  We are talking about 200 crime scenes that I was at.
Q  Well, I'm talking about the whole scene.
A  The entire scene?
Q  Yes, sir.
A  I would say all when you say "properly processed."  Now, if you mean perfectly, rather than properly, and I make a distinction between perfectly and properly, I would say properly processed -- all.
Q  All of them.  Okay, now, with those 200 properly processed homicide scenes, in how many cases were all -- each and every one of the -- rules or precepts that Mr. Segal read to you followed?
A  Would you repeat them one by one and I will tell you.
Q  Well, I believe you testified that you were familiar with the --
A  (Interposing)  I said I agreed with them, but many of those had dealt with the investigator in charge of the scene before I got there.
Q  And you were not in that position?
A  That's correct.
Q  Now, of your own personal knowledge, sir, do you know that all of these precepts were not followed in this case?
A  Would you read them to me and I will try to recall the testimony?
Q  I think in the interest of time I will pass on that.  Now, with respect to 1970, where were you, sir?
A  In 1970?
Q  Yeah.
A  In Chicago -- in February, I was in Bloomington, Indiana, I think.
Q  And at that time had you published in your field of criminal investigation?
A  Yes, you have my vitae and the dates of publications are on there.  The answer is yes.
Q  When did you first meet Professor Segal?
A  Meet Professor Segal -- it was fairly recent, but I'm trying to think of the circumstances when I met him.  It was, I guess, within the month.
Q  Within this past month?
A  Within the month.
Q  Now, Professor Osterburg, what would be the sum total of the time you have spent within the crime scene in reviewing the evidence in this case?
A  I spent around four hours looking at the crime scene, and another 12 hours reading the testimony.
Q  Sixteen hours total?
A  And then discussing the testimony with Professor Segal.
Q  But in terms of your independent investigation and research, would 16 hours be correct?
A  Thereabouts.
Q  Okay, Professor Osterburg, with respect to the exhibits which have been admitted into evidence in this case, do you have any personal knowledge that any of those items are not what they purport to be?
A  No.

MR. MURTAGH:  Okay, thank you.  No further questions.

MR. SEGAL:  Just one very brief matter, Your Honor.


R E D I R E C T  E X A M I N A T I O N  12:23 p.m.

BY MR. SEGAL:
Q  Professor Osterburg, in a crime scene such as the one we have been talking about here, where there is both blood evidence and possible fingerprint evidence, do the criminal investigators have to make a choice as to whether they are going to collect blood or collect fingerprints?
A  Well, yes; they do make a choice and should make a choice.
Q  And how is that choice rationally made?

MR. MURTAGH:  I would OBJECT to that.

THE COURT:  OVERRULED.

THE WITNESS:  We have two competing -- as counselor, Mr. Murtagh said -- demands: you want to get fingerprint evidence as quickly as possible and you want to preserve the blood.  Now, the question is, what is the blood being preserved for.
     As I have said, there are two reasons: one is for grouping purposes, to ascertain the group of a stain -- is it even human blood.  The second purpose is to study the pattern of splashing to determine the impact site from whence that stain arose, and through that information and evidence to reconstruct, if there is enough information, how the crime was committed.
     Now, if there is a lot of blood around, reconstructing how the crime was committed can be very important; and depending upon the circumstances what is being said and so on or what is being thought subsequently upon investigation.
     So, for those stains that are large enough to preserve because they can be grouped, I would be very careful about processing in that area with fingerprint powder.
     But if the stain is only useful for directionality of splashing, site of impact -- I don't think you have to be that careful.
Q  Is it fair to say that based upon your experience and knowledge, it is possible to accomodate both the need to develop fingerprints and to preserve the relevant blood evidence?
A  Yes.

MR. SEGAL:  I have nothing further, Your Honor.


E X A M I N A T I O N  12:26 p.m.

BY THE COURT:
Q  Professor, there was a Government witness who was asked the question as to what her definition of "forensic science" was.  I didn't feel the answer was entirely adequate.  Were you here?
A  No, I was not.
Q  Well, can you tell us, then, what is "forensic science"?
A  I would be pleased to.  Forensic science is divided into two main branches.  One is forensic medicine, and beneath that you subsume serology, psychology, psychiatry, and so on.  The other major area is criminalistics.
Q  You are telling me what it consists of.  I just want a definition of it.
A  Well, I think I -- we call this a taxonomy.  I am trying to show that there are two areas that are quite different.  Criminalistics, I can --
Q  (Interposing)  I am going to withdraw the question, then.

MR. SEGAL:  May I ask it, Your Honor?

BY THE COURT:
Q  Are you a forensic scientist?
A  I am a criminalist who is a forensic scientist.  I think I can make it clear in about two sentences, Judge.
Q  All right, make it clear, then -- if I don't have to apply to lawyers' rule and multiply it by two.
A  They may be long sentences.
Q  Go ahead.
A  A criminalist's aim is to establish a connection between the crime scene evidence and the perpetrator.  Now, the evidence may be brought to the crime scene by the perpetrator leaving such things as a fingerprint or a footprint, or it may be evidence taken from the crime scene such as a hair, blood splatter, or possibly the loot that prompted him to break into the place in the first place.
     Those are the -- linking crime scene and criminal together is one of the major areas of criminalistics concern.  The other is reconstructing how the crime was committed.
Q  Do you consider that forensic science is a sort of fringe area of criminal justice education?
A  You must have read my article, because I wrote an article in which I used those terms.  I see you are surprised, but the title was, I think, "Criminalistics: A Fringe Area of Criminal Justice?"
     In the reproduction of the paper on the program, the question mark was omitted.  That was a serious omission.
     My view is, no, it is not a fringe area of criminal justice.  It is a main branch of criminal justice.
Q  Do you know a man named Richard H. Ward?
A  Yes, I do.  And Dr. --
Q  (Interposing)  And he quoted you as saying that you say you were in error?
A  I would definitely say that, and I told him so.
Q  All right.  Well, so that you will not be further mystified, but by one of the strangest coincidences in the world, I read it last night; and I just wanted to know if you still adhered to it.
     You say you do not, and that's all I want to know; but now I will let the lawyers ask you anything you want to about it.

MR. SEGAL:  Thank you, Professor Osterburg, you may step down.

THE COURT:  Call your next witness.

(Witness excused.)