Sunday, April 3, 2011
When the afternoon session of the hearing began, Baez picked up where he left off with the FBI chloroform analysis by Dr. Rickenbach. Furton testified that
-Rickenbach's study used a higher standard than Vass and came closer to a correct analysis.
-It was in the high part per billion range similar to foods and consumer products.
-He stated he would follow Rickenbach's procedures and go further in his own testing.
Ashton then objected to the relevance vis-a-vis the Frye issue.
After arguments from both sides (much subdued from this morning) Judge Perry said that he would allow him to continue for a different reason. He wanted all opinions to come out and have some idea as to Furton's testimony. He told Baez to go ahead "if he wanted to."
Based on that comment and his facial expressions when he stated that, I have a feeling that Baez took the wrong tack in continuing his questioning. There will be more on the record for the State to use in rebutting his future testimony and gives them more time to prepare for it. It also just might allow the judge to rule on the entire motion versus the Frye issues at the end. I wish he had done this with Ms. Sims last week. She had to file another motion.
Baez then announced that he now wanted to switch to the cadaver dog motion. Ashton said he'd prefer to cross on the first two motions and then move on. The judge allowed Baez to continue. He would permit Ashton and Burdick to split the cross-examination.
Furton said he has worked in research on cadaver dogs and canines in general. He said he chairs the SWGDOG organization which is housed at FIU in Miami. He pointed out that there are no national guidelines for cadaver dog training. SWGDOG has RECOMMENDED BESTS GUIDELINES for training. They have been created because of the fact that there is a lack of uniformity in training. The recommended best guidelines are not mandatory, but are meant to help bring uniformity across the country and world.
There was a brief discussion of the issue of residual odor, generally known as an unverified alert. Then, Baez went over to "extinction training." Furton stated that his first work with canines was with accelerant detection training. He noted that the dogs were more accurate than machines, such as the GC/MS. This training was to bring their skills to the level of the machines so the results could be verified.
Furton said he had reviewed the training logs for Bones and Gerus. He said there was no training in residual odor and vehicle line-ups.
Gerus' training was substantial. However, he was trained on a monthly versus weekly training as is in the BEST PRACTICES GUIDELINES. There were no "operational" records kept. Although these records would be difficult to analyze, they would be helpful in analyzing the canine's accuracy.
Remember this for later; he kept mentioning things that were not in agreement with the BEST PRACTICES.
At that point, Baez had no more questions about the cadaver dogs and we now had to switch our minds back to Chloroform and Odor Analysis as Jeff Ashton came up to cross the witness. Oops, Baez wanted to clarify an issue about the "alleged" discovery violation concerning the chart.
Judge Perry asked Baez if he hadn't already withdrawn it? When Baez agreed to that the judge indicated that there was nothing to be said. When asked by Baez if the Court wanted clarification, the Perry just said, "Nope!"
Perry also asked about the photograph Baez wanted to enter evidence and if he had the date yet. Baez answered that he didn't but would get it. (I won't hold my breath.)
Ashton began by asking Furton about peer reviewed journal article on human decomposition which said that morning he had published in 2003.
Furton replied "The... one of my student's yes, the, uh, it's a, a paper that we refer to a variety of different, um, forensic specimens, from explosives to drugs, to humans, um, and we included, ah, the, uh, some, the decon, decom, the decompositional VOC's in that paper."
Note that once Furton was on cross, his speech started to resemble that of Jose Baez with a lot of uhs and ums and hesitations. I will not attempt any further examples, but read what he said with this in mind.
Jeff Ashton then took Furton back to his deposition in which he had stated that he did not have any peer review papers published in a journal about decomposition odor.
Furton explained that the paper he mentioned that the one he was referring to contained no information about decomposition odor but contained data from the research they were doing on it. The paper was a presentation by a student, Michael Chou (sp?) and it was an abstract with data from the student. It was not a peer reviewed article. He said that the paper wasn't referenced in his report. However, it was in his Vita.
The report, with a very long name, was about training aids for cadaver dogs which included drugs, explosives, and humans. There was data in the report for both live humans and human remains. They worked with the volatile fatty acids from the remains. The materials were the same that are used in regular cadaver dog training. Ashton asked what the remains were. Furton was quite evasive here giving generalizations about what human aids were used in his, er, Dr. Chou's (according to Ashton) study. Furton finally said they were the aids used by Broward County. He finally came down to human adipose tissue and other human tissue. It finally came down to the fact that the paper did not state any specific human remains that were used and that Furton had never done a full study of research involving whole body remains.
Ashton then ramped up the pressure on Dr. Furton as he continued to give evasive answers, at one point having the court reporter go back and re-read the question when Furtons' answer was off the target. Ashton phrased it, "I don't think the witness understood." Furton said that the training aids they were testing contained the same compounds that are found in buried remains.
Ashton then asked if the decomposition from body parts was different from that of a full body. Furton agreed, but when Ashton asked him if was an invalid conclusion to say that the results would be identical. Furton disagreed. He said that there had to be some commonality between the results.
Ashton asked him what compounds his studies of the parts of human remains that were different from those mentioned in Dr. Vass' study of full body human remains. When asked by Furton to repeat the question, Ashton modified it from "his studies" to the "studies by his students which he supervised." Furton replied "yes, these are my studies." When pushed further by Ashton, he indicated that they were studies by his students and himself which he supervised. (I'm sure Dr. Furton was sorry he asked to have the question repeated!)
Leaving the original question behind, Ashton pointed out that much of his CV contained articles written by the students he supervised. Furton responded that this was true and was how it worked in The Academy. Furton did indicate that he still does his own research and still supervises his students in the field.
(Don't be so surprised, this is a common practice in the "publish or perish" land of academia. My nephew is more fortunate. He is just putting the polish on his PhD thesis and it will be published under his own name. His mentor/adviser will get credit, but not authorship. He told my nephew that he did all the work he'd tossed at him and couldn't ever take credit for the entire work.)
Ashton then asked Dr. Furton what personal research he had done on human decomposition. Furton said that he was actually involved with the cadaver dogs and the training aids. Ashton said he thought Furton had said it was Mr. Chou and Ms. Tolliver who had done the research. He then answered that is was himself and the two who did the work. When asked what personal research he had done, Furton repeated that he was there when the research was done. He said that the research was done as a team. When Ashton pointed out that he rarely went out into the field with them, Furton replied with the fact that their ability to do original and independent work. (This was going nowhere fast as to his personal studies.)
To end the discussion, Ashton asked if he still put it into his CV as his work and Furton agreed, it was his work. The students' names were mentioned as well.
As it turned out, all of Furton's work with human remains came from the work of the students he supervised. He further explained that it was his job to supervise students.
We then got back to the topic at hand. Ashton went back to the report. He asked Furton if the report contained all of his opinions. According to Furton, he was instructed by the defense to include the basis of his opinions on the case.
Furton said that he didn't interpret the instructions he was given in the same way. He wrote his report the same way that he's done before in previous court cases. (He wasn't aware of the court order, obviously.)
It turned out that he hadn't read the Greek study on garbage prior to his deposition. He said that he probably read it at the beginning of this week. He said that it supports his previous opinion in his report.
Ashton then asked him to point out the opinion in his report. Furton went to (studies of mushroom cultivation...chlorine bleach), examples of non-human decompositional results that could produce the same volatile fatty acids. It dealt with soil samples. It was associated with the methods employed by Dr. Vass to state there are no validated methods. It was the only protocol he could find.
My notes here say, "nuff said" because this went on and on.
Jeff Ashton then went to the topic of Dr. Vass. He pointed out that Vass is a well-respected man in the field. He is published in peer reviewed journals. His work has not been challenged. Furton said he'd never written a letter to the journal disagreeing with Vass. Ashton also pointed out that Furton and his students have all cited Vass in their own works.
In summary, Furton believed that forensic science must have more reliance on statistical data than what Vass does in his work.
Next, Linda Burdick cross-examined Furton about the cadaver dogs.
Burdick started by eliciting the following about Dr. Furton's work:
-His expertise is in live scent; they are trying to learn about human odor profiles in living people.
-His research has found that people can change their profile through diet, using scents although Furton says it remains persistent over time.
-Scent line-ups are used to see if dogs can scent individuals' scents.
-He is working on a device that collects odors off of different objects to have the dogs track to a specific human being.
-The SWGDOG site puts dos up front and center.
-Dogs can scent discriminate.
-Scent can survive assaults such as explosions, chemical assaults, heat, being submerged.
When Baez made an objection saying that this information was not relevant to the case, Burdick argued that Dr. Furton is 99% involved in live scent and the rest is in other dogs. She mentioned that Baez, in his questioning quickly changed "cadaver dog" to "canines." Judge Perry overruled the objection.
-They would like the machine they are developing to be able to pull the scent off of a cartridge case and us a dog to track it to a specific individual.
-Extinction training is to have the most sensitive dog possible.
-Dogs are capable of detecting very minute quantities of scent.
-Furton gave a very brief general description of how a body decomposes. (A bit too brief for me.)
Burdick then brought up the fact that at his February 19 deposition, he had said that he wasn't hired to do the canine work and was uncomfortable with rendering an opinion on the material he had received from the defense. He stated he didn't watch any of the canine testimony given in the hearing last week. He hadn't received any additional records since the deposition.
In the opinion he put together (with the limited materials) he found it difficult to state the reliability of the dogs. The teams seemed well trained. He said that he was not giving the opinion that the dogs were not reliable (Don't you love the double negative there?).
He did not write a report about his opinion about the dog Gerus. He just prepared a summary which he sent to Mr. Baez. He was not asked to give an additional addendum to his report. He gave no opinion on the dog Bones.
Furton then went on with his double negations when he said that he didn't come to court to say Gerus is an unreliable dog as he is dual trained.
Ms. Burdick elicited more testimony from Furton:
-He has never served as a handler for a dog; he has worked with trainers and oversees a training program with local agencies. He thinks he could handle a dog.
-FIU has not trained any human detection dogs, although Furton thinks that back in the early 2000's...
-He did not have the opportunity to see either dog in action. He has not spoken with the handlers.
-A trained human-remains dog can locate the scent of decomposition after the remains have been removed.
-Both dogs were properly trained.
-There is no term "false positive;" rather "unconfirmed alert" is used when the dog could be responding to recurring or lingering odor, but the odor cannot be confirmed.
-Furton said he personally could not differentiate the difference in odor between human and animal remains.
Here's my favorite moment in Furton's cadaver dog testimony. The SWGDOG training guidelines (which Baez was using earlier to indicate weaknesses in the dogs' training) was not published until September 15, 2009! In addition, they are rules and not standards that the groups do not have to meet to be certified.
Thank you Linda Burdick for your good job of making so many points for the State! She added as a parting shot that Forgey had 20,800 hours of canine training!
Baez got up and did a brief redirect and Ashton did a brief cross which ended in him hammering at Furton if he new the 478 compounds.
My notes said this whole cross was mind-numbing and I will not subject you to so many unnecessary details! Plus, some thunder boomers just came in and I had to shut down for a while.
Witness #4: Dr. Barry Logan
Quite frankly, I'm not sure why we had to sit through Dorothy Clay Sims examination of Dr. Logan. He is currently a forensic toxicologist who works for NMS labs in Willowgrove, PA. He is a forensic toxicologist.
The lab does testing in post-mortem specimens and sometimes the specimens are contaminated by decomposition. He has not performed testing to identify a decompositional signature but is familiar with GC/MS testing. He has been extensively published.
At that point, Ashton objected to the witness and was permitted to voir-dire him.
It turned out that he had read the Vass reports and a lot of literature and formed all his opinions from them.
The judge interrupted the voir-dire to ask how often he had been qualified to testify in court on human decomposition. Logan said he had never qualified in the field. Perry then asked about his experience of the decomposition of pigs versus human bodies.
The judge decided that he would allow him to testify so that he could evaluate whether his opinions could be accepted or rejected. Had there been a jury present, he would not have been permitted to testify.
Under direct examination, he was asked to define adipocere. He stated that in anaerobic circumstances, the soft, fatty tissues decompose and form a waxy substance called adipocere.
He is familiar with the compounds that form adipocere. He gave the long list of articles he had studied to form his opinion. He also read a number of other articles to prepare for his deposition and his testimony.
He explained that in laboratories that do forensic testing, protocols, procedures, error rates, and all sorts of measures that must be taken. In a research lab, the rules are different. Dr. Vass cannot produce those sorts of measures in his work.
It is apparent that the defense brought in this witness to be an over-all expert in the chemical ramifications of the various studies. He is essentially a forensic science expert in general.
Dr. Vass said that anyone could replicate his work. Take a body, bury it with the pipes. Collect the off-gasses and test them. It doesn't seem too many people WANT to replicate what he does.
After about 45 minutes of this testimony, which was awful to listen to due to technical problems, the Judge Perry called the attorneys to the bar. It was 4:45 and it was obvious that we would go no further.
We were treated to hearing Judge Perry's side of the discussion. It seemed he was annoyed that Dorothy Sims had gone on for 45 minutes with Logan and Ashton had not had a chance to cross examine.
There was an issue of finances and the judge said that it would cost time-and-a-half for court staff and Perry had decided to save money by moving the hearing to next week. They all eventually agreed to Wednesday, April 6 at 9:00 AM. The status hearing is scheduled for the 8th and there is a good possibility that the Frye hearing could continue on Friday too.