Wednesday, August 31, 2011

Stephanie Lazarus Preliminary Hearing Day 4

December 10th, 2009

Mr. Presby states that the prosecution and defense have entered into several stipulations.

The first stipulation concerns Detective L. Mayer. If called to the stand he would testify regarding his preliminary investigation to this case, he wrote on his report the point of entry was the front door and the point of exit was the garage. Mr. Overland so stipulates.

The second stipulation concerns Jayne Goldberg. If called to the stand she would testify that during the time she lived with the victim Sherri Rasmussen at the Balboa condo, Sherri often left the front door to the condo unlocked. Mr. Overland so stipulates.
(Correction edit for fact/clarity 9/2/11)

Ms. Torrealba states that this is for the preliminary hearing only.

The third stipulation concerns Santa Monica Police Department Records Manager Carl Olson were called to the stand he would testify that he searched the records of the Santa Monica Police Department Database and that there was only one burglary from a motor vehicle that occurred on March 9th, 1986 and that the person who reported that burglary was Stephanie Lazarus.

He would also testify that between Feb 1st 1986 and April 30th 1986 there were 54 thefts from motor vehicles in Beat 3, and that Beat 3 was the location where Lazarus reported the burglary from her car. Mr. Overland so stipulates.

Ms. Torrealba has some issues regarding the marking of evidence and certain items requesting to be rebooked back into evidence at LAPD. The exhibits are moved into evidence as reference only. There are no objections from Mr. Overland.

At this point, the people rest. Mr. Overland states there will not be an affirmative defense. There will be no defense witnesses.

Judge Perry stated he received the jury instructions related to the crime of murder as it was defined in CALJIC 2.10 in the 1983 revision and the definition of malice aforethought in CALJIC 8.11 and special circumstance, CALJIC 8.81.15, (lying in wait) also a 1983 revision. Perry also received the CALJIC instruction 8.81.17, which was revised in 1984, for special circumstance murder in commission of. Perry states he’s reviewed them and also did some research of his own.

Perry states, “This is the time for argument on whether the people have made their proof for purposes of a preliminary haring for the charges set out in the second amended felony complaint.” Perry then reminds all participants what a preliminary hearing is, that it is not a trial, it is an abbreviated hearing to determine if probably cause exists to require a defendant to stand trial.

Perry states he needs to hear argument from the prosecution on the issue of special circumstance allegations. He has concerns whether there is sufficient proof on both the special circumstance allegations.

Perry’s concern about the “lying in wait” charge has to do with case law that existed at the time, 1986. Shannon Presby argues for the people.

“With respect to the special circumstance of lying in wait as it was elucidated at the relevant time in 1986, I belive that the primary factors are essentially watching and waiting and a sudden attack. I think the evidence...”

Judge Perry interrupts Presby and says he’s not sure he agrees. He checks his notes and refers to Proposition 8, an initiative approved by the voters in March, 2000. It changed the language of the lying in wait special circumstance. It went from “while lying in wait” to “by means of.”

Judge Perry feels that the requirements of what the people need to show under the prior penal code, that the crime occurred “while lying in wait.” Judge Perry then talks about how various courts interpreted the “while lying in wait” and citing Domino vs. Superior Court, a 1982 decision. That ruling required:
“The killing must take place during the period of concealment and watchful waiting or the lethal act must begin at and flow continuously from the moment the concealment and watchful waiting ends. If a cognizable interruption separates the period of lying in wait from the circumstances calling for the ultimate penalty do not exist.”

Judge Perry then talks about the cases he’s read and how the old definition differs from the new ruling.

Presby states he agrees the distinction that was made by Proposition 8 was a “...greater temporal difference from the time that, so that the modern law permits a greater temporal difference from the time that the concealment ends until the tie of the attack...”

Presby still feels they can satisfy the more rigorous standard that existed in 1986 and cites to the court the evidence he feels supports the shorter time period.

Rasmussen was attacked in her home while her husband was absent. This suggests the defendant waited until the victim was alone. The defendant was off from work the day Rasmussen was killed and had three days off prior to the attack to stalk her victim and determine patterns of behavior.

Judge Perry interjects that the people have no evidence that Lazarus watched the condo for any amount of time. Presby agrees but contends that the location of the attack and the fact that John Ruetten was not indicates a natural inference the defendant was able to determine when Rasmussen would have been alone.

Presby goes onto argue that since the condo complex was secure there several things Lazarus must have done to gain admittance and that she had training on how to pick locks. Presby also presents statements from Lazarus’ journal about watching Ruetten’s car for 1/2 hour.

Presby also presents elements of the crime scene itself and that all evidence of a struggle take place in the entry way and the ultimate shooting in the living room area. The victim’s blood and torn fingernail are found right in front of the front door. All those facts indicate the victim was attacked immediately once the defendant gained entry to the home.

Presby mentions the bullets that shattered the sliding glass doors and the fact that five bullets were fired. The miss fires also support a sudden attack the moment the defendant is detected in the home. All this supports an attack from either the stairway or right near the front door. The garage and the front door are the only two access points to the condo and those doors are within five to six feet of each other.

Presby continues to argue that the only way the defendant could have gained access at that time was to have watched and waited for when John Ruetten was absent. And the fact that the attack occurred almost immediately upon the defendants entry into the home, which would qualify with respect to a sudden attack.

Ms. Torrealba reminds Presby about how Rasmussen was dressed in her nightclothes indicating she was not expecting company or anyone in the home and is also evidence of a sudden attack.

Presby continues with the argument that if one was expecting company and some conversation they would have been fully dressed instead of in just a robe, t-shirt and panties.

Judge Perry then asks who is going to argue the killing during the commission of a burglary and Presby states that he will also make that argument. Perry states he feels the prosecution has a problem arguing the defendant came there specifically to murder the victim then the prosecution does not have special circumstance of killing during a burglary.

Presby agrees with that, but states that’s not what they are alleging. The prosecution is alleging that Lazarus entered with the intent to kidnap. Judge Perry states you are not alleging that as special circumstance.

Presby responds, “We are not alleging that the felony is during the course of a kidnapping, but that the garget of the burglary was to kidnap. So that when she entered the house, her intent was not to steal or to assault, but to kidnap. So it is during the courts of the burglary, but the target of the burglary is not an assaultive crime or a theft crime; it is a kidnapping.”

This argument rests on the same evidence as well as the rope that was found in the front area of the condo. Presby argues all the evidence regarding the rope near the front door with the victim’s blood on it and the victim having a pattern ligature on her wrist.

Presby also argues that the lack of the defendant’s prints at the scene is another factor he feels supports the kidnapping theory and goes to the special circumstance of lying in wait. Presby mentions the contact with items in the home... the stacked stereo equipment and the broken vase. Presby argues that the lack of prints and the DNA (strong evidence of identity) from the probable bit wound a reasonable conclusion is that Lazarus was gloved. Presby goes onto argue that going to a rivals home wearing gloves, and bringing a gun and a rope is evidence of intent.

Judge Perry asks Presby, “What about if you just wanted to tire her up?”

Presby argues why that would not be a reasonable inference because the defendant was a police officer just going into someone’s home and tying them up is a crime, at least battery, false imprisonment and if there’s movement, kidnapping. Those charges are not the type of thing a young officer would want on their record. If the victim was left alive, what happened would certainly have been reported to police.

Judge Perry counters about the other evidence found at the scene of disruption. The stereo equipment on the floor, the phone pulled off, the drawer pulled out. Presby states the prosecution believes all those elements were staged to lead the investigators to conclude this was a burglary.

Presby and Judge Perry continue to argue back and forth the elements of the evidence presented.

Judge Perry states the prosecutions theory again. “Your theory is there was an attempt to bind that resulted in some kind of physical altercation, a gun comes out. When does the gun get covered by the...”

Presby replies that is significant and it “...goes to the willful, deliberate premeditation.” Presby mentions the victim was struck several times in the head. She was disfigured. Presby and Judge Perry agree that at least one shot was a “killing shot” right in the heart. Presby states that they know that the blanket covers the firearm for all three shots into the victim but not the one’s through the sliding glass doors.

Presby argues this means the defendant had the opportunity to take the gun and wrap the gun. Judge Perry replies, “So your theory, as I have it, you’re saying that the evidence is consistent with entering, attempt to bind, struggle, gun comes out, two bullets fired, beating with the vase an then execution?” Presby states, “Yes your honor, that’s correct.”

In response, Overland argues only with respect to the special circumstance charge. He first addresses a bloody fingerprint (I believe on the stereo equipment) which he states a lift was taken. Overland states he doesn’t believe there is any evidence of “lying in wait” whatsoever. He feels that, “...the argument made by the prosecutor seems to be self-contradictory in the sense that he equates a sudden attack with lying in in wait. And the two are contradictory, it’s either a sudden attack or there’s lying in wait, waiting.

Judge Perry states that the cases cited back in 1986 indicate that just taking someone unaware was not sufficient to establish the special circumstance of lying in wait. Overland responds that the prosecution’s theory is the first he’s ever heard “...this novel theory of kidnapping.” Overland mentions the prosecution’s original theory, the theft of the vehicle because it was given to Rasmussen, but now they’ve dropped that and gone with kidnapping. Overland states there is no evidence as to the prosecution’s theory of the sequence of events. “There’s no evidence as to what happened, when.” Even though Mr. Ruetten had never seen the rope before, that’s not evidence that Lazarus brought it with her to bind the victim.

Judge Perry states that it is “curious” why the rope and abraded wire is on the floor, and there is the possibility that the rope might have been in contact with the victim’s wrist, “...but I don’t know that that gets you as far as they want it to go. I would agree with you.”

Overland goes onto say that it is a theory, but it falls short of probable cause. Judge Perry asks for rebuttal from the prosecution.

Presby argues that the rope was not from the home, it had the victim’s blood on it, the victim had a pattern abrasion and the rope was knotted; it had two knots in it as if it was tied in preparation for binding.

Judge Perry rules. “The court dies find the people have produced ample evidence in support of the allegation and that the defendant is responsible for and did commit a willful, deliberate and premeditated murder as charged in count 1. I find that there is sufficient evidence for purposes of the preliminary hearing. That would also follow that there’s sufficient evidence that the defendant personally used a firearm in the commission of that offense.

I do find the evidence insufficient for both of the special circumstance allegations. I just think that it’s too speculative. I appreciate very much the argument, Mr. Presby. I think you’ve done as much as you can with the evidence.”

Judge Perry complements Mr. Presby on being an excellent attorney, but as he looks at the evidence he finds it insufficient to support that the murder occurred during a burglary or under the other special circumstance of “lying in wait” as it was defined in 1986. Judge Perry asks Overland if he wants to present a motion to suppress Lazarus’ statement, but Overland states he doesn’t know if he wants to bring a motion or handle it during trial. Judge Perry tells him he better do it before trial. Judge Perry confirms that the people do want to litigate the matter of the defendant’s statement.

The parties then discuss returning for arraignment in ten days. A hearing is set for December 18th for bail and the arraignment.

And that ended the four days of preliminary hearing.

Stephanie Lazarus Case Quick Links

Friday, August 26, 2011

Something Happy for a Change!

I’m going to deviate (yet again) from T&T traditional bread and butter article to share a happy story with you all.
Longtime T&T readers will remember our coverage of the brutal and utterly senseless murder of Cindy Ramos, a vivacious 58-year old mom and grandma, who was killed in her Tracy, California home in August 2009. You’ll also remember Cindy’s brave and stubborn daughter Christina Barnes, a good friend of T&T, who has grown into a formidable victims’ rights advocate.
Christina is also the founder of Children of Murdered parents and she and her siblings are working to get SB 906 passed, which would require that accused and convicted co-conspirators of violent felonies be jailed and prisoned apart from one another.

Today’s happy story: Christina and her husband Steve, already parents of three daughters (eldest daughter Stefiana serving in Afghanistan, Janessa and Briana) announced they have a baby boy on the way! He was most cooperative during a recent ultrasound, as you can plainly see in the photo. Congratulations Christina!

Thursday, August 25, 2011

Stephanie Lazarus Pretrial Hearing 8

Stephaine Lazarus at one of her early court appearances.
Photo credit: Mark Boster, LA Times

I arrive into downtown LA just in time to make the hearing if the security lines in the Criminal Court Building are not long and there isn't a mad crush at the elevator bays for the lower floors. I'm in luck. There's virtually no line to speak of. Just as I'm about to walk through the security scanners I get a tap on my shoulder from behind. It's 48 Hours Producer Greg Fisher who totally missed the last Lazarus hearing. I had received a heads-up the day before that this would be a very short hearing so I wasn't expecting many people to be there.

When I get inside the courtroom my favorite seating area is taken up by a black couple I've never seen before and I make a guess that they are here for a different hearing. I shuffle down to the second row and Greg and I sit a bit to the left behind Nels and Loretta Rasmussen. The Rasmussen's are fine people. Fisher asks Loretta if she received his voice mail but she did not have time to check her messages. No matter how short it will be, every time there is a hearing in the case of their daughter's murder, they make the seven-hour drive to Los Angeles. Sitting in the same front row at the far right is Lazarus' mother. The two Robbery-Homicide detectives are in their usual seats on the far right, second bench row.

8:33 am: Lazarus is brought into the courtroom. She is not wearing glasses today but I notice that she has some sort of plain black hair clip in the center-top towards the back. Her hair from the front crown area is pulled straight back and held down with this clip. I note to my friend Greg that she looks much paler than usual. Lazarus has been incarcerated since early June, 2009 and this is what happens when you don't have access to sunlight for over two years.

Greg sees a defense attorney he knows over by the clerks desk and he waits for the right opportunity to go chat with him. He's a tall, handsome black man that Greg tells me used to work in Johnny Cochran's firm but left and started his own. Later, he sits with him in the back row in deep conversation during the entire hearing.

Lazarus turns around and gives her mother a big smile. She's wearing the white, long-sleeved long-john type shirt under her orange jail-house jumpsuit. The beefy defense investigator who's name I've forgotten is here along with Courtney and Mark Overland. (Overland finally has a new web site up detailing his experience and new partnership with his daughter. For a time there, I could find very little information about Mark on the web.)

8:37 am: Judge Perry takes the bench and Shannon Presby greets the judge. "Good Morning, your honor." Lazarus appears to be whispering intently with Courtney Overland. Judge Perry makes the standard announcements that we are on the record and names the prosecution and defense team. This is a status conference to determine additional (rounds?) of hearings. Overland has a motion for a Kelly/Frye hearing which Judge Perry asks Overland if it will require the taking of testimony. Overland responds, "Yes." From what I'm understanding, apparently part of the motion is asking the Judge to order certain DNA evidence be provided to the defense (for their own testing).

Shannon Presby states he has not had the opportunity to contact SERI (At first, I thought he said "sera" or "serology" but this is an independent testing laboratory.). The prosecution would like time to digest the defense motion since they just received it (yesterday or today). Presby states he's not clear on exactly what it is regarding the DNA that relates to the Kelly/Frye hearing.

Perry states this will be a two-step process. First, we will determine if we will have a Kelly/Frye hearing then... (snip) I think Presby then tells Judge Perry that it (the motion) did not seem to go to the accuracy of the (Key-Meyer?) test, (but the?) technique to use the test, not the science.

Overland states that he can answer the question the prosecution has. It relates to a "three prong." (Unfortunately, I can not decipher my own notes here so I'm going on memory.) The Kelly/Frye hearing is the first "prong" and the (DNA?) order relates to the documentation required (in the DNA testing) that needs to be reviewed to see that it meets the second "prong." (I didn't totally understand what Overland said.)

Matthew McGough from The Atlantic arrives and slips quietly into the back row.

I think it's the prosecution who states, "All we need is to reach out to SERI....."

Perry states that he also has a motion regarding firearms and a motion from the defense requesting a personnel file. Overland states the City Attorney has been served. Judge Perry tells the parties that he will contact the City Attorney and see if we can get a fire going. Presby asks that once that personnel file is turned over (to the defense) they are requesting a copy (reciprocal discovery). Judge Perry has no problem with that. Judge Perry is then asking all parties about their schedule. "I can tell you my schedule. I have a trial set to start September 12th. I have a trial set to start September 19th. I would like very much if possible to (?) have or (a?) ruling on motions early in September, the 8th or 9th." I believe Overland states September 8th is not a good day for him. Judge Perry asks Overland for his calendar for early September, and there may be a problem if experts are going to be called and if they would be ready (available) by then.

Judge Perry then goes onto say he doesn't even know if we are going to have a hearing yet. He doesn't have a response from the people (regarding Overland's motion for the Kelly/Frye hearing.) "Can you get it filed next week?" Judge Perry asks the prosecution. Presby states they could get it filed by the end of next week; that would be practical. Judge Perry asks, "How about August 31st?" Presby responds, "Then, that's when we'll file it." I believe it's now that Presby asks the Judge if they could just concentrate their efforts on this motion by that deadline and not address the other motions filed. I believe Judge Perry agreed.

There is then a back and forth by the attorneys trying to schedule a date to argue Overland's motion. A date of September 1st is chosen. Judge Perry then asks the prosecution if they will have talked to their expert witnesses by then. "And I'll keep my calendar open and not set any trials. (snip) So, to be clear, availability of experts September 6th 7th, 9th. (No Sept. 8th; Overland is not available on that date.) Sept. 1st, hearing on motion for Kelly/Frye." Judge Perry also mentions something to the effect about the prosecution and a discovery issue, if they will have discovery available at that time. Judge Perry asks if there was anything else and I believe Overland stated that he has one other issue but it must not have been important since Judge Perry left the bench.

And that's it. It's over and Lazarus is taken away. I was too busy scribbling to see if Lazarus turned to smile at her mother before she was whisked out. At some point during the hearing, Robert Dean, the tall Dateline producer slipped in. Out in the hallway, all the reporters are standing together and I ask if anyone knew what Mr. Presby said when he was talking about "SERI," if anyone knew if he said serology, or what. No one fessed up to knowing. I knew I would then have to do what I am the most uncomfortable doing when I am around attorneys, and that's ask them a question. I leave the group of reporters and quickly head to the elevator bay where DDA's Shannon Presby and Paul Nunez are. I rustle up my courage and ask Presby if he could answer a question. He's a very personable and engaging man. I ask him about the "sera" word and what he really said and what it refers to. "Serological Research Institute. SERI. It's an independent lab. I don't know what the E is." I thank him for his time.

While we are all waiting for an elevator, Paul Nunez is talking with someone about a case where he is making the opening statement tomorrow. It's the case of Los Angeles Unified School District Police Officer, Jeff Stenroos, who back in January of this year made a false statement to police where he fabricated a story of being shot by car robbery suspects. Stenroos was arrested (and obviously indicted) a week later, charged with five felonies. When I overhear that the case is being heard at the Van Nuys Courthouse, I ask Nunez what Department the case is being heard in. He pauses for a moment and then tells me, "Department G." (The same judge who heard Robert Blake's murder trial is presiding over this case.) If I can get an appointment rescheduled tomorrow morning, I might go just to get a sneak peak on how Nunez does in his OS as well as present witnesses.

I grab an elevator to head home and check in with Mr. Sprocket about his day and whether the huge heaters got delivered to his job site. I'm out the door of the court building and it's not even 9:00 am.

Stephanie Lazarus Case Quick Links

Tuesday, August 23, 2011

Keeping Up With Casey Who?

August 24, 11:40 AM

InSession has just announced that they will be carrying the hearing live at 9 AM tomorrow. It also appears that there is a possibility it will be live streamed by some TV stations.

August 23, 7:08 PM

Casey Who?'s probation must be served. In a decision just released by the Appellate Court, it states that Judge Strickland's oral order for probation takes precedence over the written order. In addition it says that

The petitioner and her lawyers were well aware that her probationary placement was not to begin until her release from confinement. The petitioner may not, under these circumstances, take advantage of the administrative error of the Department of Corrections.


I have to admit my real life has now become more interesting than tracking down Ms. Casey's every movement. Was she in Ohio? I don't really care. Where is she in Orlando? I don't care. Will she make money from the infamy her trial has given her? As of now, I don't see the money rolling in for her and that pleases me. As for her family, the same applies. It's a good thing I've never been a Dr. Phil fan. Whatever they have told him can stay off my DVR. I don't really have any interest in what they have to say. The verdict is in and we have to live with it.

What does interest me is the probation situation. Yesterday, the State Attorney General filed a reply to the defense motion. State's Assistant Attorney Frank George joined in the Attorney General's reply. The Attorney General's reply pretty much followed along with Judge Perry's ruling. Attorney Lisabeth Fryer just filed a reply. It said much the same as the original motion. All we have to do is wait for the Appellate Court to make its ruling.

Proof positive the media interest is waning in this case is the fact that there has been very little publicity about the hearing on Thursday where the State will be asking to be repaid by Ms. Casey based on her convictions for lying to Law Enforcement and causing the massive investigation. There has been virtually no mention of the hearing and have not heard of any live feeds that will be available.

So, it will be interesting to see if anyone actually streams it. I won't know. I'll be away for the hearing and will only get to read about it later! After three years of living and breathing this case, it's good to move on.

As for the civil cases, I will be following up on them. However, these cases tend to move at a snail's pace, and that suits me just fine right now. Let Ms. Who? sink into the background, forgotten for the most part. Let little Caylee linger in our hearts, forever.

Check out the current news for all the documents in the appeal.

Friday, August 19, 2011

Deporting U.S. Citizens from Their Home State?

I want to deviate a little bit form T & T’s usual back of tricks. This story does not involve murder or child abuse. It does not involve any sort of violence nor is the “perp” an illegal alien gang member or a career criminal. It is the story of two states, medical marijuana, a plea deal, and the State of California “deporting” a native-born Californian for no stated reason.
In January 2011, a 29-year old man we will call T.J., a legal resident of California, was driving through Arizona on the way to a family visit on the East Coast. T.J. was a legal medical marijuana cardholder in California, prescribed for anxiety, and was traveling with legally-acquired marijuana in the trunk of his car He was stopped in the high desert region of Arizona for a minor traffic infraction, and consented to a search of his car after the cop had a “feeling” T.J. had marijuana in the vehicle. He consented to the search because he knew he could have been detained while the officer obtained a warrant.
He was arrested for possession and transport of marijuana for sale, booked and released. He turned around and returned to California, and shortly thereafter retained an attorney in Arizona. The penalty could have been as severe as several years’ imprisonment or as little as probation.
In concert with his criminal defense attorney, T.J. decided to plead guilty to transportation of marijuana for sale, a Class 3 felony, through a plea bargain, avoiding a trial. A judgment and sentencing hearing at the end of June outlined the terms of the plea deal. The terms of the plea kept T.J. out of jail in Arizona, but necessitated paying a series of fines, community service and three years probation. Terms of probation included random drug testing (which also meant no more medical marijuana) and no alcohol use or spending time socializing in bars. Because T.J. had gainful full-time employment in California, he and his attorney asked that probation be served in California. He was also ordered to pay an interstate processing fee and a refundable interstate extradition deposit along with monthly probation fees.
Here is why you are reading this story: Earlier this week T.J. learned that the State of California did not accept his probation, and told him he had to leave the state, nearly two months after Arizona drafted the terms of probation. Yes, you are reading this correctly—a 29-year old white male United States citizen, a taxpaying resident of California, was deported (of sorts) by the state of California.
In the court order, in the section titled “Uniform Conditions of Supervised Probation,” there is a statement that reads:
I may apply for Interstate Compact supervision in the state of California and will not proceed to that state until reporting instructions are received and the APD [Arizona Probation Department] issues a written travel permit.
Problem is, T.J. has NOT been residing in Arizona. He holds a job and maintains a residence in California, and was never jailed in Arizona. Once he was booked, he was free to go, with no travel restrictions. He even asked permission from Arizona’s probation department to attend a family function in Mexico—something required by the terms of his probation.
California’s Department of Probation did not give T.J. or his attorney in Arizona a reason for denying T.J.’s request to serve his probation in California. T.J. drove down to Arizona to try to get things straightened out, but has been told that he can be anywhere BUT California.
Yes, you are reading this correctly. A gainfully employed white male who has broken no laws in California, who plead guilty to a class 3 felony in Arizona and has agreed to terms of probation, has been deported from his state of residence. As I write this, his attorney believes that T.J. may be unable to return to California until the end of September.
So now it’s legal to “deport” an American citizen from a given state, but it’s nearly impossible to deport an illegal alien who is breaking the law by being here, let alone other probable infractions including identity theft, driving without a license, and maybe welfare fraud? It’s legal to prevent a U.S. citizen from holding down a job, to put his life in limbo because the state of California is broke and unwilling to “supervise” his probation? (As part of his agreed-upon sentencing, T.J. will pay a monthly probation fee.)
Seriously, is this what this state and nation have come to? And if any of our readers happen to be attorneys with ideas on how this miscarriage of justice should proceed, please contact me through T & T.

West Memphis 3 Walk Out of Prison

From left to right, Jessie Misskelley, Jason Baldwin, Damien Echols; photo credit WREG

I heard on the news yesterday that an Arkansas court called a short notice hearing in the West Memphis 3 case for this morning. Eighteen years ago, three teenage men, Jason Baldwin, Damien Echols, Jessie Misskelley were convicted in the death of three eight-year-old boys: Christopher Byers, Steven Branch and James Michael Moore.

The case grabbed national attention with the release of the documentary Paradise Lost: The Child Murders and Robin Hood Hills, and it's sequel Paradise Lost 2: Revelations.

All three were released today after entering new Alford pleas. I listened to a representative from the area District Attorney's office speak at a press conference. This plea arrangement started three weeks ago when one of the defense attorneys contacted the DA's office. From my understanding, (after watching a DA speak to the press) the DA's office believed that the judge hearing the appeal would most certainly have ruled in December to overturn the verdicts and order new trials. The DA's office, faced with the prospect of having to try the defendants again felt there was a strong possibility they would not be able to secure convictions a second time. Agreeing to the Alfred pleas meant that the guilty verdicts would stand.

At the press conference the three young men held right after their release, we learned that it was Jason Baldwin who was reluctant to take the plea, but what finally convinced him was it would release Echols from the threat of death row. He agreed to the plea only to help save Damien's life. To me, all three of them looked shell-shocked at the quick turn of events. Echols stated that when he first learned about this turn of events, he could not sleep and that he had not slept in four days.

All three defendant's sentences were changed to 18 years and credit given for time served. They are no restrictions on their travel. There is some type of hold from the Arkansas department of corrections for an additional 20 years that will only come into effect if any one of them get into trouble with the law again.

No matter what your feelings are on the guilt or innocence of these three young men, they are now free to try to rejoin society.

UPDATE: CNN will have a special report, "Presumed Guilty: Murder in West Memphis" @ 11:00pm ET tonight.

CNN Story

Free West Memphis 3 web site

Free West Memphis 3 Blog

ABC News Report

Thursday, August 18, 2011

Casey Anthony, Will She Serve Probation?

August 18, 1:46 PM EDT

Jean Casarez on InSesson just reported that the paper copy of the motion has been filed and the case will now move forward.


Okay, I took a week off to go on my first real vacation in seven years. Once we arrived at our destination, we had a wonderful time. However, due to lost airline connections in both directions, we ended up spending two days extra NOT having a good time! There was a sweltering day and night in a Houston hotel whose air conditioning wasn't quite up to snuff, without our luggage and a fresh change of clothing. To avoid the same situation on the way home, we spent a day shuttling to the airport and spending the night shuffling from plane to plane to plane making tight connections. We ended up "visiting" in three states which were not on our itinerary.

I heard about Judge Perry's order concerning her probation and caught a bit of news about it. Unfortunately, my husband banned my laptop from the trip for good cause. Thanks, Sprocket, for posting the news. Now that I've had a chance to rest up a bit, I can also report on the defense reply to the Appellate Court. As of now, the defense reply has only been filed electronically and we all know that it has to be filed on paper. Somebody will have to drive over to Daytona to file the hard copy.

Listening to Jean Casarez on InSession right now, she is pointing out that nobody has filed a stay on the order that Casey Anthony appear for probation on or before August 26.

During the original hearing, Lisbeth Fryer argued vehemently about Judge Strickland's bias and that he had recused himself and had no jurisdiction over the fraud case. She argued double jeopardy.

She also argued that putting Casey on probation in Orange County would put herself and others in danger. At the time, I can recall that she kept throwing the responsibility to the State to report the scrivener's error that caused Casey to be on probation while in protective custody.

In his order, Judge Perry replied to all her concerns:

1. He stated that the Court had jurisdiction. He stated (omitting specific legal citations) that

It is axiomatic that oral pronouncements control over clerical errors. The court has the authority to correct its judgment. An order is rendered, valid and binding, when orally given. It may be corrected at any time to reflect what the court had in fact done.

2. As to violation of double jeopardy, Perry stated that

This case does not involve additional punishment proscribed by the double jeopardy clause nor does it involve a punitive effect by requiring the Defendant to serve probation twice. The Defendant was in jail and unable to meet the goals and requirements of the probationary sentence. The Defendant could not comply with the standard thirteen conditions of probation while incarcerated on a pending charge.

3. As to the defense's responsibility to report the error to the Court, Perry was very clear.

In this case, the State, defense counsel, and the Defendant all knew what the announced intent of the Court was as to when the Defendant's probation was to begin... To permit this error to continue would in fact turn a clerical error into a game cautioned against in the Bozza case...

4. Due process was briefly mentioned.

The Court does not address the issue of the alleged violation of the Defendant's right to due process because the defense did not allege how it was violated.

5. To be sure that the defense understood the issue of Duty to the Court, Perry stated in part that

Finally, this Court would like to address the issue of what duty does an attorney, an officer of the court, owe to our system of justice to see that the lawful orders of the court are followed. The defense acknowledged in court that Mr. Baez knew about the error, but contended that he did not have any obligation to inform the court... While ignorance of the contents of a court order is one thing, the failure to abide by that order and the failure to notify the court of a known scrivener's error in the order may be a violation of an attorney's duty of candor. To additionally seek to use a scrivener's error to achieve an end that was against the court's intent, especially where both parties had argued the issue of when probation should commence, strikes a the very foundation of our justice system...

The duty of candor is simply not a rule of fine etiquette, but is the gold standard that all officers of the court - especially attorneys - must live by if we are to ensure the public's trust and faith in our justice system... While "(z)ealous advocacy is the cornerstone of good lawyering and the bedrock of a just legal system...zeal cannot give way to unprofessionalism" and noncompliance with court orders.

Perry then went on to recommend that the defense refer to The Florida Bar's Rules of Professional Conduct.

As I am writing this, the Orlando Sentinel is reporting that a Bar Complaint against Jose Baez on this very issue.

6. Judge Perry did address the issue of Casey's safety. He ordered her address not be disclosed and cited an article in the Orlando Sentinel which reported that Casey was the most hated person in America.

The Appellate Court in Daytona is still waiting for a paper copy of the defense reply to be provided. At this moment, WESH is reporting that the court will hear the appeal prior to Casey's reporting date.

The appeal is written by Lisabeth Fryer, who argued the motion in court on the 6th. It is very long and has many legal references. There is a great deal of bashing for Judge Stan Strickland. It is a longer version of what I posted about that hearing. In addition, she criticized Judge Perry.

...the trial court engages in three pages of of moralizing about the responsibility of the defense counsel in candor to the tribunal, as if somehow this entire 'mess' was the responsibility of the defense, rather than a vindictive act by a glaringly biased judge... For the record, this was not a case in which the defense was in possession of information that neither the court, nor the State of Florida lacked. Instead, defense counsel only learned of the probation informally, whereas the State of Florida received formal notice of the commencement of probation... Further, the former disqualified judge actually signed the original order which established probation while the Defendant was awaiting trial on a different set of charges. That the court feels it necessary to chastise the defense (and the defense alone -- by name) for not bringing this matter to the court's attention is, at best, misplaced.

Right now, I'm waiting to see if Frank George files a response to this motion, once it is officially filed.

Keep tuned for the latest turn in this twisted case!

Wednesday, August 17, 2011

California Supreme Court Denies Phil Spector's Petition

Phil Spector prison booking photo

In a not so surprising move today, the California Supreme Court denies Phil Spector's petition for review of the Appellate Court's decision for his 2nd degree murder conviction in the death of actress Lana Clarkson. It's my understanding that Spector's only recourse is the United States Supreme Court. Good luck with that, Phil. You will have to survive on visits from your Trial Bride for at least the next seventeen years. I wonder how long that will last?

Rest in peace, Lana.

Monday, August 15, 2011

Stephanie Lazarus Pretrial Hearing 7

Updated: 12:30 pm

Today starts a three-day hearing in the Stephanie Lazarus case to hear defense motions to exclude evidence. From my understanding, defense counsel Mark Overland plans to call several prosecution witnesses over the next three days. I will have an updates on today's hearing at the noon lunch break and later this evening. Stephanie Lazarus is charged with the murder of Sherri Rae Rasmussen, the new wife of her former boyfriend in 1986. This cold case was solved 23 years later by DNA evidence. The trial is scheduled to start in mid October, 2011, with DDA's Shannon Presby and Paul Nunez representing the people.

Update: 12:30 pm
Stephanie Lazarus, Kelly Soo Park, Clarkson Family Civil Suit against Phil Spector and that HBO "dramatization" of Spector's legal woes.

What a frustrated morning I had! I got out the door on time, that wasn't a problem. My drive into downtown was perfect; it only took about 25 minutes to get to the budget parking lot. It was right when I was going to pull into the lot. I reached into my purse to get my wallet to pay the attendant when I realized I left my wallet at home. I called Mr. Sprocket, hoping he hadn't left the house yet. He was still home, but not nearly ready to leave for his project in Glendale. His first thought was to just go to a branch of our bank and get some cash. I asked him, "How would I prove who I was?" I had no identification on me. Having worked in the banking industry for over 15 years as an internal auditor, I knew it would be near impossible to withdrawal even twenty dollars out of our checking account. I knew that I was going to miss possible testimony because Judge Robert J. Perry is a stickler for starting right at 8:30 am.

I immediately headed back home and Mr. Sprocket and I planned to meet at a freeway exit. By the time I got back downtown and inside Judge Perry's courtroom, he was already ruling on the second of two motions presented. And that was it. No three day hearing with testimony. The next court date is August 25th, 2011. I had to get most of my information from other people who were there from the beginning.

From my understanding, two motions were heard and ruled on today. I heard the tail end of Judge Perry's ruling on the second motion regarding the prosecution having a forensic expert testify as to whether or not the crime scene was a "staged event."

Judge Perry basically said the expert can testify about what was found at the crime scene and whether or not that was consistent with a burglary. The witness cannot speculate. Judge Perry will allow him to offer an opinion. "He can be your 'pull it together witness' as to how (he believes?) the crime occurred, the number or shots, the sequence of events..."

Judge Perry then talks about something where I'm not fully getting the gist. The expert cannot testify about "...the hand over the mouth or torn septum... (snip) (If? It's?) the medical examiner offers an opinion as to how (that?) occurred....but he can't say it on his own."

Judge Perry continues "...broken nail at the front door.... no (?) at the upper level...he can opine. I don't know what to do about the cordage.... (or?) need for more cordage. (It?) could be an attempt to kidnap..... I thought probably (a?) permissible opinion. (snip) He can offer that as part (of the crime scene that's) not consistent with a burglary..... but not kidnap. (I?) don't think (there's) anything (there) to support kidnap."

Then Judge Perry instructs Mr. Presby what he should say for argument, that the witness cannot say as opinion. The narrow window of time, and that the killer waited until the husband was gone. That's not permissible on speculation (by the expert). "All that you can argue," Perry rules. "How committed the killer was, no financial gain.... pure argument....the level of violence. (snip) The adjustment of the driver's seat on the BMW, I don't know that that's permissible for this witness. The fact of adjusting of the driver's seat goes more to the size of the offender. (snip) (It) points to personal cause....argument."

Judge Perry then talks a bit about the recovery of the purse. The purse was found by gardeners, groundskeepers. Mr. Presby states that the gardener's are not even around. Perry states then that the witness can't even talk about it. Perry states the witness can talk about facts that are inconsistent with a burglary and he can say how he things the crime occurred; the evidence inconsistent. Then the front door and whether it was locked or unlocked is mulled over. From what Judge Perry was saying, the front door had three locks and the condo had an alarm system, but apparently from statements John Ruetten, the front door might have been left unlocked because from the night before because of a visitor. Judge Perry states, "There's no evidence of forced entry that I can see....I realize that I'm cutting him way back."

Judge Perry then asks if there's anything from the defense? Mark Overland responds, "No."

The jury questionnaire is then mentioned. Judge Perry states he received a revised copy from the people and that it's quite extensive (larger) that the one he saw before. Mr. Presby stands and explains that the prosecution and the defense agree on almost all except question #74. Judge Perry states he will look at it. Presby then brings up one other matter, the scheduling (on? of?) course of the trial.

Mr. Overland talks about discovery and that he still doesn't have some important evidence from the people. Overland wants to set the next court date, "sooner rather than later." Overland would like a date set in ten days for the LAPD to give him materials. "And additional discovery that might be missing." Judge Perry asks, "You still planning a motion on the DNA?" Overland states that he is. His expert just received the evidence. Judge Perry rules the next hearing to be August 25th and at that time they will set dates for further motions.

The people who were in the gallery were Nels and Loretta Rasmussen and their attorney John Taylor. Lazarus' mother was there along with her friend who was at a prior hearing on June 30th. Steven Lazarus, Stephanie's brother was there with a female friend with short blondish hair. The Dateline producer was there along with Matthew McGough, from The Atlantic.

After the hearing I got a quick update on what I missed. There were 18 sections of the secretly video tape recorded interview with Lazarus that were objected to being presented to the jury. Three or four of those sections were excluded but the overall majority (well over 90% of the tape) will be admitted into evidence and the jury will get to see the tape. The defense has withdrawn their "chain of custody of evidence motion" and will argue at trial (through objections) the admissibility of the "bite mark swab" evidence.

I had just a moment to speak with attorney John Taylor about the upcoming civil suit against Phil Spector. The case is still on for trial on January 9th, 2012. If there is no settlement by the parties before then, it's expected at that time the case will be moved out of the Pasadena courthouse to a "long cause judge" and fighting for a time on that judge's calendar at either the Stanley Mosk Courthouse or the Central Civil West Courthouse.

After the hearing I got to chat a bit with Lisa from ABC network. Since she missed the hearing I got her up to date on what I had just heard as well as letting her know that Judge Perry is a stickler for starting on time and never allowing cameras inside the courtroom, or computers or blackberry's. She was kind enough to let me know that the next Kelly Soo Park hearing is set for September 14th, possibly at 9:00 am.

And a last word about David Mamet's "docu-drama" on Phil Spector's legal woes. (Y'all already know how I feel about the potential accuracy of this film.) Helen Mirren has replaced Bette Midler in the role of Linda Kenny Baden. Midler had to pull out after suffering a herniated disk. Although I adore Helen Mirren ever since I first saw her in the British series Prime Suspect, I thought Midler was a more believable casting choice. Photos have surfaced of Al Pacino in makeup and wigs to look like the eccentric Spector. The problem Pacino will have trouble duplicating is Spector's lack of anything resembling a chin and the great flabs of hanging skin around his neck before Spector's nip/tuck.

Sunday, August 14, 2011

Stephanie Lazarus Preliminary Hearing, Day 3

December 9th, 2009

The parties identify themselves for the record. Shelly Torrealba and Shannon Presby, DDA’s. Mark Overland and Julio Vergara for the defense.

The hearing starts out with Judge Perry bringing up a case decision, Vanwinkle vs. County of Ventura, a decision which was filed on December 7th of 2007. The opinion is at CAL.APP.4TH, 492.

This is in regards to statements the defendant may have made in regards to the Public Safety Officer’s Procedural Bill of Rights Act. Judge Perry quotes from the case ruling. “That we hold these protections do not apply to officers subject to criminal investigations conducted by their employers.”

Judge Perry does not want to discuss this issue now. He wants to proceed with testimony and take up this issue at another time.

Ms. Srbova is a criminalist at the LAPD crime lab, toxicology unit. She was hired in 2003 as a laboratory tech and in February 2005 she became a criminalist. Srbova outlines her training and qualifications. She obtained her masters in environmental chemistry and engineering from the University of Chemical Technology in Prague, Czech Republic.

Srbova is shown a document, Defense Exhibit A. She identifies it as a document (an evidence log) that originates from the coroner’s office. She identifies her initials and and serial number on the log as receiving evidence labeled “bite mark swab.”

Srbova states she also goes by the nickname of “Millie.”

Srbova testifies that she did go to the coroner’s office and pick up this item. Srbova is now shown People’s Exhibit #29. She identifies her handwriting on this exhibit in the lower left hand corner. It has the D.R. (?) number (86-09-0480), item number, her initials S.I.D. and the date she wrote the numbers on the envelope.

Srbova is asked about the “D.R.” number and where she obtained it. It was obtained from a detective or the coroner’s office. The number “30” on the envelope is the item number at LAPD property that it would be booked into evidence as.

When she received the envelope, she transported it to the LAPD crime lab where she placed it in the refrigerator. The refrigerator is also a freezer.

This was not the only case she picked up that day. She also picked up evidence from 18 coroner cases for a total of 106 pieces of evidence.

Srbova states that each case’s evidence items are kept separate. She states she never opened the envelope that she picked up involving this case.

Srbova outlines her procedures once she gets the items back to her department and placed the evidence inside the freezer/refrigerator. She went through all the cases and all the pieces of evidence that she picked up and wrote all the D.R. numbers and item numbers, initials. She marked on the envelope or on the packages whatever she received. She then places them in LAPD envelopes and writes a report for all the cases and then booked them into property.

People’s number 86 and 87, photos that depict the front and back of the LAPD envelope. Srbova identifies her name and serial number on the envelope “frozen tag.”

Srbova is asked about a date on the envelope and what it refers to. She states that is the original booking date.

(Reading the transcript, I’m somewhat confused about the dates they are referring to.)

A date of February 25th, 1986 is not the date that she booked it. It was booked into LAPD evidence on January 25th, 2005. The January date is the date Srbova booked it into evidence.

Srbova identifies on People’s number 87, the backside of the LAPD envelope. She states she sealed that envelope. She identifies her signature, her serial number, the date and the S.I.D.

The delay from the date Srbova picked up the evidence from the Coroner’s office (December 30th, 2004) and the date from the time it was booked into evidence at LAPD (January 25th, 2005) is explained by Srbova.

Srbova states, “There’s actually no delay because it takes time until I went through all the evidence packages and all through everything I book - - I picked up. So therefore, it seems like delay, but it’s a normal process.

Judge Perry doesn’t understand the answer and questions Srbova on the details of her procedure.

Judge Perry elicits from Srbova that it takes time for her to go through 106 pieces of evidence. Although she receives the evidence on December 30th and files it in the freezer, it takes time to log all those pieces into LAPD evidence.

Under questioning, Srbova states that if she only picked up one piece of evidence from the coroner, then it would get processed in one day. But she picked up 106 pieces. That takes time. Although she picked up the piece of evidence on December 30th, 2004, she doesn’t work weekends and sometimes she’s off and sometimes she assigned to do something else. She states that the envelope goes in the freezer on December 30th, in the original coroner’s envelope but it’s not transferred to an LAPD envelope and LAPD documentation until January 20th, 2005. She states that she did not “repackage” the envelope. She on the 20th, she took the item out of the LAPD freezer, put the envelope from the coroner inside an LAPD envelope, documented it and put it back in the freezer.

Judge Perry also elicits from the witness that during that time the evidence is waiting to be booked, there is no notation anywhere, that this evidence is in the freezer waiting to be booked.

Srbova states there was no particular order in which those cases were worked on. She states she would not work on more than one case at a time. She had to verify with the property unit in order to get the number “30” for this piece of evidence. That was the next in order number available at that time.

Direct is finished and Overland begins the cross.

Srbova states that when she picked up the evidence (in this case) from the coroner, she took it to the LAPD the same day. Srbova states that it’s a matter of procedure (she always did it that way) that she would put items that needed to be refrigerated in the refrigerator or freezer. When the items are put in the freezer, there is no log that she signs at that immediate time. Here are her words.

“When I picked up any evidence from the coroner’s office, I put it into serology unit, which was the unit that had refrigerator and freezer, into the refrigerator or freezer in the property unit, that happens after I book it. And there is - - there is a log that I sign the D.R. number and everything that I booked it that day, but that belongs to property unit.”

There is no record or log that she put something in the freezer or refrigerator (until the paperwork is completed that the item is booked into evidence).

Judge Perry asks questions of the witness again to clarify the delay from December 30th to January 25th. Again the witness states there is no record that she put the item in the freezer on December 30th. “Nothing like that was in the procedure, so there is no record that would indicate that I put it in the freezer. Just have to believe me that I did.”

Judge Perry asks what record would she have to remind her that she had put something in the freezer.

(Srbova’s answer is confusing to me and to Judge Perry.)

“The record would be that I booked it as a frozen, that’s why it was i the freezer. Because if it needed to be frozen, I would not put it on the shelf or anywhere else. I would put it always in the freezer.

Judge Perry asks again, about any record being made at the time it was put in the freezer, and Srbova answers, “There’s no record about it, only the envelope that I booked it.”

Overland enters into evidence, Defense Exhibit C, a one page LAPD property report dated January 21st, 2005.

Srbova is asked about the report and states she prepared the report for D.R. number 86-09-10480, the case here. Srbova agrees that there is nothing in that report as to when she put the evidence in the freezer.

Srbova is questioned further as to what was involved in booking those 106 items of evidence. She has to review to ensure that all the pieces she received do belong to the proper case number. She has to ensure that everything is properly sealed by the coroner’s office. She also has to ensure that she is marking everything correctly on each envelope and package. She had to find out the D.R. numbers and sometimes that took a couple of days until she got a response from a detective or someone handling the case. So that took time.

Srbova is asked how many pieces of evidence she went through in that period of time from December 30th to January 25th. She states 106. She knows this because she created an EXCEL spread sheet that had all the items of evidence that she picked up. She created the spread sheet at that time she picked up the evidence.

Srbova states that the EXCEL spread sheet she created does not document how much time she spent on each individual item to properly book it into LAPD evidence and that she doesn’t know how much time she spent on each of those 106 items.

Srbova states, specifically to the bite mark swab, it would have taken her about 1/2 hour to verify that everything was correct.

Overland is finished with his cross and Judge Perry asks a few more questions of the witness.

Judge Perry makes a general statement that her job was basically that of courier. She would go over and pick up evidence and bring it back to the LAPD and make sure that what she got from the coroner was properly booked.

Srbova states that she was usually faxed a sheet of what she was to pick up, but she didn’t care that much what she was going to pick up. She verified when she got back to LAPD it was her job to verify everything that she signed for on the evidence log.

Srbova states that she did have a regular run or she could go over to the coroner’s office by special request. That special request could be from a detective or from someone in the coroner’s office.

The EXCEL spread sheet, that was something that she did on her own, so that she could keep track of what she picked up. Judge Perry asks her if she has a copy of the spreadsheet or if she can make a copy of one for the period they are talking about. Srbova states that she has it in the computer at work.

Ms. Torrealba gets up to redirect the witness.

Srbova states that at that time, there was only one freezer in the serology unit and that it was locked. Only criminalists in serology unit and during the daytime (had access to the freezer). There was a special place in the freezer, a box labeled “Coroner’s evidence” and that was her box. There was no one else picking up evidence from the coroner’s office.

Redirect is finished and there is no recross. Shannon Presby presents the next witness.

Mr. Smith is an LAPD officer and firearms examiner for the Scientific Investigation Division. He describes his background, training and experience with respect to firearms. He first trained with the FBI and AFT in 1993 to become a computer aided firearms examiner. He entered the firearms training program in 2004, completed it in 2006. He took all the required tests and has been working as a firearms examiner ever since.

When he first went to firearms, he was tasked with completing an exemplar set of cartridges for LAPD. That involved studying and finding out about anything to do with cartridges from .22’s all the way up through the 458 rifle rounds. He assembled a collection of over 1,000 cartridge cases from 1993 to 1994 that are currently being used by LAPD as exemplar cases for them.

Smith has previously been accepted as an expert witness in court in respect to firearms analysis in approximately 100 cases.

Smith first joined the LAPD in 1981. Smith states that the LAPD has rules, regulations that authorize specific types of ammunition for specific guns for specific periods of time for rank and file officers, officers on patrol.

Smith testifies that it is a violation of LAPD policy for an officer to use ammunition other than what LAPD has authorized.

Smith states that he does remember the authorization and use of .38 caliber Plus-P semi-jacketed lead soft point ammunition by the LAPD. Smith states the time range that ammunition was authorized for use was between 1982 and 1984. Smith states that during that time he was a patrol officer. Smith states there is an event in his career that helps him to remember this fact about the ammunition and that was he was working with a partner who was in a shooting with that type of ammunition. Smith states he believes the shooting took place approximately in 1983, but he doesn’t remember the exact date.

Smith is asked about the .38 caliber Plus-P semi-jacked lead soft point ammunition. Plus-P is a .38 cartridge, that is loaded to a higher pressure creating more pressure which creates a higher velocity of when the bullet leaves the firearm.

Smith states that Richard Maruoka is the supervising criminalist of the firearms analysis unit. In July of 2009, he had a discussion with Maruoka about this ammunition. He told Maruoka during that discussion what he told the court here, that at one time, the LAPD authorized the use of this ammunition. During that conversation, Smith informed Maruoka that he still had in his possession some of this specific ammunition.

People’s next in order, number 88 and 89, color photocopies of boxes of ammunition. Smith identifies the photos of the back side of a box of ammunition that he gave to supervisor MAruoka. Photo number 89 is another view of the same box of ammunition.

Using the laser pointer, Smith points out a “30” sticker on the box and explains. “The significance of the 30 sticker is the box is designed to hold 50 cartridges, and because we qualified with LAPD with 30 cartridges, LAPD returned to us 30 cartridges when we qualified at the sooting range. So in order to identify the box as one that was only holding 30 they would put a sticker on the box so that we were not lead to believe that it was a 50, box of 50 cartridges.”

Smith verifies that is the same type of sticker he recalls seeing on boxes of ammunition that he was given when he was an officer at LAPD. Smith verifies he gave this box to his supervisor, Maruoka. Before he handed it over, he looked inside the box and verified there were some of the mentioned rounds of ammunition, made by the company, “Federal.”

Direct ends and cross begins by Overland.

Smith states that he is able to narrow down the date to the early ‘80’s of when the ammunition was used because of the shooting incident involving his partner.

Overland gets the witness to admit that he doesn’t remember the name of the victim and he wasn’t able to track down any reports to solidify the date of the shooting.

Cross ends and there’s no redirect. Mr. Presby presents the next witness.

Mr. Rubin is a criminalist with the LAPD for 19 years. He describes his training and background. Rubin is also an firearms examiner for 19 years. He’s testified approximately 146 times as an expert.
Rubin examined firearm evidence in this case (86-09-10480). He received two bullets with identification numbers 42-A and 42-B. Rubin describes the packaging the bullets arrived in. (Envelopes within envelopes.)

Rubin explains that he engraves on the base of each bullet his identifying mark to document that he’s analyzed a projectile. He puts his identifying mark, the item number and the nine digit case number.

Rubin examined the bullets and determined that they came from the same firearm. He based his conclusion on the tool-marks that were on the bullets from being fired. After his examination Rubin testifies that the bullets were consistent with being fired from a Smith & Wesson Model 45. Rubin details all the steps he took (photographs and measurements) including the comparison to a reference source (the rifling characteristics file from FBI) to come to this conclusion. The items were then repackaged and returned to the property center.

On July 22, 2009, he reacquired the items from the property room to reexamine the bullets and compare them with other ammunition to determine the possible manufacturer. On July 39th, 2009 he obtained some live ammunition from Richard Maruoka (.38 caliber semi-jacketed lead ammo) for comparison to the two bullets.

Rubin took a photograph of his microscopic comparison of the items (People’s number 92). Presby then asks him to explain “jacket crimp” as it relates to a bullet. Rubin states that he had not come across before, the unique characteristic of the jacket crimp on the fired bullets. It wasn’t very common. The jacket crimp on the fired bullets appeared to be the same type and shape as the live rounds provided by Maruoka. Using the laser pointer, Rubin points out for the court the similarities in the microphotographs he took in comparing these items. Rubin describes the jacket crimp as “a hoof print of cattle.”

Rubin states that in all his 19 years of microscopic examination of “thousands” of bullets, he has no recollection of ever seeing that type of jacket crimp before.

Direct ends and cross begins.

Overland has Rubin clarify his expert opinion about the bullets. Rubin states “they could be” Federal brand bullets, since they are “consistent with” that particular brand. Rubin states he did look at other brands and the bullets were not consistent with other brands he compared them to.

Rubin excluded a particular Remington jacketed hallow point brand bullets. Overland has Rubin’s report that he wrote marked Defense Exhibit D. Under cross, Rubin clarifies that the bullets “could have been fired” from a Smith & Wesson model 49.

Rubin states there are other models of weapon that the bullets could have been fired from. Ruben rattles off a long list (over 30 different weapons from Smith & Wesson, Ruger, Sportarms or Taurus).

Rubin goes onto explain that there could be other weapons beyond this list. This list is limited to weapons in the General Rifling Characteristics File supplied to crime lab by the FBI. There could be other makes and models that have the same general rifling but that data has not yet been submitted to the FBI (and reached the GRCF list).

Overland wants to ask the witness about cartridges that were recovered from Lazarus’ home that he tested and compared to the fired bullets. None of those cartridges were consistent with the bullets that killed Rasmussen.

At this point, the people agree to stipulate to the cartridges Overland is referring to were obtained during a search warrant of the defendant’s home and one cartridge obtained through a search warrant of Lazarus’ (work) locker.

Through his own questioning, Perry elicits a point that Overland is trying to make, and that is that none of the bullets loaded in the unfired rounds recovered from the search warrants are consistent by design with the bullets recovered from the victim’s body.

Rubin states that the .38 special caliber revolver found in Lazarus’ locker was test fired. Rubin could neither confirm nor eliminate the bullets recovered from Rasmussen's body as being fired from the .38 special. The bullets could have been, but Rubin cannot determine if they were or were not fired from that weapon. He doesn’t know.

Cross is finished and there is no redirect. Mr. Presby introduces the next witness.

Luczy is an independent forensic firearms and explosives consultant since 1991. Before that, he was employed by the LAPD. At that time he was assigned to the Scientific Investigation Firearms and Explosives Unit. He was a forensic firearms examiner and bomb technician. Luczy describes his background and training in regards to firearms examination.

Luczy was in the army before joining the LAPD in 1971. From a patrol officer he was trained as a divisional armorer. He was responsible for the maintenance of all model ITHICA .37 shot guns owned by the LAPD. During that position, he researched a safety defect in the model 15 Smith & Wesson revolver that eventually resulted in the recall of every city owned LAPD firearm. Over 7400 guns were recalled, rendered safe and reissued.

Luczy came in as a temporary member in the firearms and explosives unit to assist during the 1984 Olympics. His loan to the department started in 1983 under a 15 month loan. In 1986 he was reassigned back to the firearms and explosives unit. From 1986 to 1991 Luczy performed approximately 3400 firearms examinations for LAPD as well as being a bomb squad member.

Since retiring, he does the same thing he did for the LAPD except his practice is 99% defense work. In his own practice he has conducted hundreds of cases.

In his career he has examined clothing that has been in close proximity to a firearm discharge. The examination of clothing can reveal the type of firearm that caused marks on clothing. There are certain types of marks (left on clothing) that are indicators of the type of firearm that may have been used in a crime.

Luczy examined clothing related to this case. During his tenure with the LAPD he kept his own journal of the cases where he conducted firearm analysis. Pages from Luczy’s journal relevant to this case are entered into evidence, People’s number 94. Luczy also wrote a report (Peoples number 95) relevant to his examination of a specific caliber bullet, a rust colored robe and a pink tank-top style shirt. In the report, Luczy also made a diagram of the front and back of the rust colored robe, People’s number 96 and 97.

Luczy also examined a quilted, multi-colored bathrobe and wrote a report, People’s number 98 and the diagram of that bathrobe, People’s number 99. Luczy re-examined the rust colored robe and the multi-colored item on December 1st, 2009 and wrote a new report detailing that examination. That report, People’s number 100 is entered into evidence. The examination took place at a crime lab on the campus of Cal State University.

When the items were presented to Luczy they were wrapped in heavy brown paper, over wrapped with string and inside a sealed cardboard box. The items were in two separate boxes. Luczy testifies they were in an “...excellent state of preservation.” During Luczy’s recent examination, he attempted to “match” the lineup of the holes in regards to the rust colored robe. At this point, Overland makes an objection to chain of custody and Judge Perry overruled that objection.

Luczy testifies that the correspondence between the holes in the items he examined on December 1st and his report and diagrams prepared back in 1986 were exact. The rust colored robe was photographed during his reexamination. That photograph, People’s number 101. During Luczy’s initial examination in 1986, he numbered the holes in the front portion of the robe (depicted in diagram, People’s number 96). Overland made another objection to chain of custody. The holes are numbered A1, A2, A3, A4.

Luczy testifies that he noticed a material deposited around holes number A3 and A4. Luczy described it. “There’s a very, very heavy deposition of unburned granules of gunpowder that surround those holes in that area of the robe.” (The front of the robe.) That finding was consistent with what he noted back in 1986. Luczy states what he was attempting to do was document what he saw on the robe in his 1986 diagram. He placed many little black dots around holes A3 and A4 to represent numerous burns or unburned grains of powder.

People’s exhibit number 102, a photo of the robe taken during the reexamination in 2009 documenting the tiny speckling, grains of unburnt gunpowder. They are still there after 23 years.

The presence of unburned grains of powder on the robe is significant as to distance determination, which is defined as the distance between the muzzle of the firearm in question and the surface upon which the residue was deposited; in this case, the robe.

Luczy states, based on his experience, there is a difference with respect to the about of unburned particles you would expect to find on a garment between a short barrel weapon and a longer barreled weapon. His opinion is the unburnt particles were left by a short barreled weapon. The length of the barrel in a firearm determines how much of the powder is combusted. Luczy testifies, “These grains that you see here are unburned and that is caused by the - - - by the fact that the firearm that produced this is a short barreled weapon.”

Luczy reexamined the hole designated as A2. A2 had a cruciform appearance, meaning there was tearing at the margins of the hole that is similar to a cross or star shape. This is an index of a contact gunshot would where the muzzle of the firearm is in direct contact with that piece of material. Luczy determined that hole number A1 next to hole A2 was produced when the portion of the robe number A1 was underneath number 2. In other words, the lapel of the garment was folded over and that hole 1 and 2 were created by one fire, one shot fired. Hole number 2 is indicative of a classic ‘contact gunshot wound.’

Luczy reviewed Dr. Selser, the coroner’s report, specifically what she documented in her report as gunshot wound number 1. The report indicates there was gunshot residue inside that wound indicating it was a hard contact gunshot.
Luczy determined that this was the same robe he examined back in 1986. He added his initials via a label to the robe in 1986. People’s exhibit number 103 is a photograph of the label attached to the robe.

Luczy now details his reexamination of the multi-colored robe in 2009. (It is much the same as his reexamination of the rust colored robe. He came to the same conclusions about the multi-colored robe in his re-exam as he did in 1986.) Luczy came to the conclusion that there were three shots fired through this robe. He based that on the grouping (of the shots) that he observed as well s the appearance of the holes that were created. More photos are introduced and analysis to back up Luczy’s conclusions. Luczy states the gunshot residue left by the muzzle blast leads him to conclude that the multi-colored robe was draped or wrapped around the firearm when it was discharged.

Luczy states that a linear gunshot residue deposit on the garment in one area is called a barrel cylinder gap discharge mark. A barrel cylinder gap is something that is unique to a certain type of firearm mainly a revolver-type handgun.

(I remember learning about this during the Spector trials.)

The barrel cylinder gap is a gap that is between 4 and 6 thousands of an inch in width, and this is a gap that the bullet has to jump. When that happens, there is blow back or blow out to the sides. It’s called barrel cylinder gap discharge. This phenomenon is present on the garment which indicates that the mark could only have been produced by a revolver.

Because of the location of the bullet holes in the multicolored robe, and the location of the barrel cylinder gap discharge on the garment exactly two inches away. That measurement allows Luczy to identify the length of the barrel of the gun involved in this crime.

With this information, Luczy attempted to align the barrel cylinder gap with an exemplar of a Smith & Wesson model 49 handgun. Photographs were taken of that alignment, People’s exhibit number 106.
In conclusion, Luczy states that the bullet holes and the barrel cylinder gap discharge was caused by a two-inch barreled gun, and that gun was a revolver.

Direct examination ends and cross begins.

Luczy verifies there are a huge number of revolvers manufactured with a two-inch barrel. Easily 2,000 different weapons.

Judge Perry asks questions of the witness and there is a confusion if Overland wants to know how many different models, or just Smith & Wesson's or overall guns. Judge Perry wants to know how many models of two-inch revolvers are out there. More than 10? Yes. More than 100? Luczy doesn’t know but states he could easily find out. Luczy agrees it’s a large number.

Luczy states that he was only asked to compare one model of weapon to the holes and residue on the weapon.

Cross is finished and there is no redirect. The noon recess is taken early.

Mr. Presby notifies the court that the defense and prosecution is trying to work out some stipulations as to some lose ends that are remaining, and they hope to get those completed tomorrow. Judge Perry responds he is “..jumping up and down with glee” regarding the news that both parties will probably finish the preliminary hearing tomorrow. Mr. Presby presents the next witness.

In March of 1986 Ms. Sena-Brown was employed by the Santa Monica Police Dept. She was not a police officer; she was a Community Service Officer and her duties were to handle non-emergency calls. She was not sworn; she is a civilian. As part of her duties, she routinely took reports. On March 9th, 1986, she took a report from someone who identified themselves as Stephanie I. Lazarus. People’s next in order is exhibit number 108, a four page document entitled City of Santa Monica Police Report. It’s a crime report.

Sena-Brown details the document. It was obtained on March 9th, 1986, on a Sunday in district 3. The reporting person was Stephanie I. Lazarus, who identified herself as a police officer. Lazarus was reporting a theft from an automobile of her firearm and some miscellaneous items. Lazarus gave Sena-Brown a description of the firearm. The report states the firearm was a Smith & Wesson model 49, two-inch blue steel five shot .38 caliber revolver. Lazarus also provided a serial number for the weapon which was noted on the report.

Sena-Brown wrote the entries on the report based on what Lazarus reported to her. The report indicates she looked at the vehicle but the witness doesn’t have any independent memory of doing that. The report states the driver’s side lock was “punched” meaning the lock had been tried (pried?) or attempted to be removed off of it’s normal seating. Sena-Brown states she is testifying based primarily on looking at the report and knowing what her custom and practice was back then. She does not have an independent recollection of the vehicle or any damage to the vehicle or of the person who reported it.

Direct ends and cross begins.

Overland has the witness detail the address location and the streets in between where the crime supposedly occurred. Back in 1986, Santa Monica did not take these types of reports over the phone. She would have received a call and arranged to meet the reporting individual at the station. In this case, she did not meet the individual at the location of the auto burglary.

During Ms. Sena-Brown’s interview with detective Jaramillo and Mr. Presby, she stated that whenever there was a burglary from an auto, she would request the victim to come to the station if they wanted prints. This was her normal practice. It’s noted on the report that an I.D. tech was requested, but she would not have any contact or report back from that technician.

A blue gym bag was also reported stolen as well as clothes, six music cassettes and currency and coin. Sena-Brown states she can recall one other incident where another police officer reported having their weapon stolen, two incidents if she counts Ms. Lazarus.

Overland reminds her of her taped conversation where she stated she could remember four reported incidents of officers having their guns taken. Sena-Brown concedes she probably did.

Cross is finished and there is a short redirect.

Sena-Brown states she does not have a specific memory of Lazarus specifically asking to take prints of the vehicle. She has no independent recollection if this was actually done. Based on her report she assumes that it was done but she doesn’t know if it was done or not.

Sena-Brown indicates that the location of the vehicle at the time of the burglary was five blocks from the pier and is a location that is commonly used for parking for people who want to visit the pier.

Redirect ends and recross begins.

Sena-Brown is asked more detail questions about the burglary location and it’s proximity to the 3rd Street Promenade where there are shops. Sena-Brown states in 1986 it was a lot different. The Promenade was not as well attended as it is today. Sena-Brown agrees that the location was also close to Santa Monica Place, once a large area with various stores, like a mall. It’s no longer in existence today but it was in 1986.

Sena-Brown states that if the individual decided they did not want to wait for a technician to print the car, they didn’t have to because that may take time to get the technician there. Sena-Brown states that if that was the case, she would have noted it on the report.

Recross ends and redirect begins.

Presby presents a map of the area where the burglary supposedly occurred. Sena-Brown states the area is actually four and a half blocks from the pier. She does not know if the person who initiated the report, remained to have prints taken of the car. After completing her report, if the individual changed her mind about prints being taken, Sena-Brown would have no way of knowing tat.

Further recross.

Sena-Brown states that back then, she would have just knocked on the door (to that department) and say she needed a technician to look at the car. She would do that at the time she made the report. She would either make a phone call or walk over to the department. She would not necessarily do that in the presence of the reporting individual. If she had cancelled the I.D. tech, she probably would have a notation in the report.

Examination ends and Presby calls and presents his next witness.

Mr. Nuttall is a homicide detective for the LAPD. He conducted a re-review of this case in February, 2009. In that review, he discovered the original theory of the case that was pursued in 1986, of a botched robbery conflicted with other information found in the file.

There are objections by Overland regarding the questioning and whether the answer would be “double hearsay.” Judge Perry rules that at this time it’s not relevant “why” the detective did something. He instructs Mr. Presby to just ask his witness what he did.

From a review of the original “murder book” Nuttall identified five females that were part of Ms. Rasmussen’s life at the time of the murder. They were given numbers 1 through 5.

On February 10th, Nuttall interviewed John Ruetten by phone that was not tape recorded. He conducted a second in person interview on May 20th, 2009. In the interviews Nuttall asked Ruetten about any possible females from his life in 1986 who might have had some animosity toward his wife. Nuttall made it clear to Ruetten they were reopening the investigation and that he wanted him to be forthcoming. Judge Perry interrupts and explains to the witness he’s offering too much information. He instructs the witness to listen carefully to the question. He repeats the question to the witness. John Ruetten gave him the name of Stephanie Lazarus. Ruetten told Nuttall he met Lazarus at UCLA, and that they had an ongoing relationship through the time of the incident in 1986. Ruetten told Nuttall that Lazarus was an LAPD officer at the time of his wife’s death.

Nuttall also investigated a woman by the name of Debra Hoey. Nuttall determined where Ms. Hoey lived in 2009 and arranged to obtain a surreptitious DNA sample from her that was submitted for comparison. Subsequently, he spoke to Ms. Hoey and she volunteered a DNA sample that was submitted for comparison.

In the interview, Nuttall discussed Ruetten’s relationship with Sherri Rae Rasmussen. Ruetten stated he purchased a BMW vehicle for Rasmussen about the time of their engagement. Ruetten was living somewhere in the San Fernando Valley at the time of his engagement. After the engagement, he moved into Rasmussen’s condo. Ruetten stated that after he moved in, the couple changed their security practices. They had an alarm installed that Ruetten paid for.

Overland wants clarified as to which interview the detective did where all this information was obtained. The information came from the face to face meeting with Ruetten.

Ruetten told Nuttall that he met Lazarus in his second year at UCLA. They were living on the same floor of the Dykstra Hall Dormitory. Initially, their relationship was “very good friends” and it continued after they graduated from UCLA. Ruetten described his relationship with Lazarus as a “gray area between a friendship and one-on-one dating relationship.” Ruetten stated they were never fully intimate while on campus together. After graduation, they became “fully intimate.”

After Ruetten became engaged to Ms. Rasmussen, he described to Nuttall a contact he had with Lazarus. Lazarus called Ruetten asking to see him. They met at Lazarus’ residence in Northridge. At that meeting Lazarus made what she wanted clear. She wanted to be “more than friends” she had strong feelings for Ruetten and wanted a romantic relationship. During the conversation Lazarus told Ruetten she was in love with him.

Ruetten described his activities on the day his wife was murdered. The woke early. Ruetten ran a morning errand and went to work. He left work to go to a nearby bank and then went back to work. He left work at approximately 5:00 pm. He made a stop on the way home and arrived home about 6:00 pm.

Arriving home, Ruetten noticed that the garage door was open, no cars inside and there was glass on the pavement. Sherri’s BMW was gone. Ruetten told Nuttall that Sherri did not have a bite mark on her body the day prior to her murder.

Nuttall also interviewed Rasmussen’s sister, Theresa Lane, in June, 2009 regarding any injuries Sherri may have had in the days prior to the murder. Ms. Lane had seen her sister the day prior to the murder and did not see any bite marks on Sherri’s body that day.

Ruetten informed Nuttall that Lazarus had never been in either of the two cars he and Rasmussen owned at the time of Sherri’s death.

(There is a question and answer here at this point in the transcript, right after the above question was answered that does not make any sense. Here is what it says.

“Q. Did you ask Mr. Ruetten whether or not the decedent had ever been inside the residence 7100 Balboa, to his knowledge, prior to the date of the murder?

A. Yes.

Q. What did she tell you in that regard?

A. She had never been inside the home.”

(It’s my guess there are two errors here. It’s my opinion the transcript should read “whether or not the defendant had ever been inside the residence.” The second error, I believe is in the next question, and should read “What did he tell you.”)
Ruetten told Nuttall that to his knowledge, Lazarus did not have keys to Sherri’s condo nor was there any personal property of Lazarus’ that he brought with him from Lazarus’ residence.

Ruetten stated that to his knowledge, there was no time where he, Lazarus and his deceased wife, were ever all together at the same time. Ruetten was very clear to Nuttall. He stated that during the initial investigation in 1986 “...he made it known to our investigators that Stephanie Lazarus was his ex-girlfriend and perhaps she should be spoken to.” Ruetten also clearly remembered following up with LAPD investigators in the 1980’s about Lazarus being a possible suspect.

(This is interesting. Presby wants to ask some specific questions of the detective, but Judge Perry feels the line of questioning for the preliminary hearing is not relevant. Judge Perry rules, “352,” but I will include it because it’s noteworthy to explain Ruetten’s behavior with Lazarus after the murder.)

“Presby: I think what detective Nuttall will say is that John Ruetten told him that he was told that Ms. Lazarus had been eliminated as a suspect. It’s relevant because it explains - - there are some post murder contacts between Mr. Ruetten and the defendant explains why he would have such contacts. You don’t care about that.

Judge Perry: 352.”

Ruetten told Nuttall that he did have contact with the defendant after the murder. Ruetten also stated that he told the defendant “face to face” that he had provided her name to police. That conversation took place in Hawaii. In that conversation, Ruetten told the defendant (that he told police) about his knowledge of Lazarus’ confrontation with his wife at Adventist Hospital in the fall of 1985.

Nuttall testifies that when Ruetten informed Lazarus about the police knowing about this confrontation, she appeared “...unfazed. There was no reaction or response.”

Judge Perry asks how Ruetten and Lazarus were in Hawaii together. Ruetten informed him it was by chance. They went to Hawaii independently.

Direct ends and Overland crosses Nuttall.

Overland questions Nuttall on the specific words he used in questioning Ruetten. Nuttall states for the record that he didn’t use the word ‘animosity,’ he actually said, “...anybody who may be involved in the investigation...”

Nuttall states that Ruetten never told him that he informed Lazarus about the gift of the BMW. Nuttall clarifies that it was an “engagement” gift and not an anniversary gift. Nuttall clarifies that the term “never fully intimate” means sexual intercourse. Overland states that they will continue with Nuttall’s term.

Nuttall states that Ruetten told him that any contact he had with the defendant after February 24th, Ruetten initiated. Overland gets Nuttall to concede that the word he used to describe the Adventist Hospital incident was “met with” and not “confronted.” Nuttall agrees there was a “meeting.”

Nuttall concedes that Ruetten stated he had “no direct knowledge” of the meeting. Nuttall states that Ruetten said, “ was his fault, that he had confused the relationship between himself and Ms. Lazarus.” Ruetten had confused the relationship by being friends and at the same time being intimate.

Overland asks Nuttall about that incident where Ruetten went to Lazarus’ apartment. Nuttall states Ruetten told him that Lazarus was not angry or mad. That Lazarus thought this might be the last chance. Ruetten told Nuttall that Ruetten and Lazarus were intimate that night, and this was after Ruetten and Rasmussen were engaged.

During Nuttall’s interview with Ruetten, he told him that he hoped that June would be a deadline for resolving the case. Nuttall was not getting any pressure to resolve the case by June by anyone higher up in the department. With the resources Nuttall had, he had a good time frame of when he would have his answer.

Cross ends and Presby picks up redirect.

When Nuttall predicted a resolution to the case by June, he was expecting an answer on the DNA. At the time Nuttall had no idea if the DNA was going to identify the defendant. He thought it would either eliminate or identify her.

Overland has one more question on recross. When Ruetten told Nuttall he installed an alarm system, it was because there were burglaries in the area.

Ms. Torrealba presents the next witness who is not on the list.

Ms. Tomes is a detective with the LAPD Robbery/Homicide Division, Robbery Special Section. She holds the rank of senior supervising detective. She has been with the department for 22 years. Tomes states she does know an individual by the name of Nand Hart-Nibring, a criminalist employed by the LAPD.

Tomes states that on June 5th, 2009, she was with Hart-Nibring and detective Dennis English were at the old LAPD location on Los Angeles street. English is a detective with Robbery/Homicide division. The defendant was also present. Tomes states she observed Hart-Nibring collect two buccal swabs from the defendant, also called oral swabs. Tomes described the steps Hart-Nibring took to collect a DNA sample.

Tomes states once the swabs were collected she described the steps he took to package up the swabs. During the collection, Hart-Nibring had on a facial mask, protective clothing and gloves. Once the collection was properly packaged Tomes states that Hart-Nibring booked the items into evidence under the proper DR number. The item number placed on the swabs was 51. Hart-Nibring prepared a report regarding the collection which Tomes reviewed.

Direct is finished and there is no cross of this witness. Ms. Torrealba presents the next witness.

Ms. Dillion is a forensic print specialist assigned to the Scientific Investigation Division of the LAPD. She has been in the assignment of fingerprints a total of 15 years. Dillion describes her training and experience and has already been qualified to testify as an expert witness.

Dillion worked on DR number 86-09-10480. She was assigned to work on comparison. The victim in the case was Sheri Rasmussen. She compared palm prints regarding the defendant. Dillion refers to her notes to state she compared prints on a package on June 8th, 2009, August 21st, 2009 and yesterday. She prepared a report of her findings, dated August 21st, 2009.

Dillion compared Lazarus’ prints to 18 lifts in Package “A” and 15 lifts in Package “B.” Package “C” was a photo of a latent print which she didn’t compare because it had already been identified. There were five latent prints in Package “D” four of them identified and one unidentified.

The contents of Package A, two pages is marked next in order, exhibit 111-A and 111-B. These are prints that were collected from the crime scene. And on the document, there’s columns that say, identifiable, identified and not identifiable.

Identifiable means, the print has been evaluated by the examiner initially before work is started and later on it’s (possibly) identified. She did not prepare this document. It’s a document that’s prepared in the field, by a field individual who collected the print.

She was asked to take the unidentified prints and see if she could compare them to the defendants. Overland concedes that there are exemplars of the defendant’s prints to compare to.

Dillion could not make a match comparison between Lazarus and any of the unidentified prints in Package A or Package B or Package D. She compared one print in Package B to the victim, #12, and it did not match the victim. Some of the prints were not able to be identified (classified as unidentifiable) because they did not have enough ridge pattern. Direct is finished and cross begins by Overland.

Dillion states that she did not prepare the form. There is a document log with a list of people who did previous comparisons on these exemplars prior to her employment at LAPD. She cannot speak to forms prepared back in 1986. Dillion explains she does a visual comparison of latent print to exemplar print. She does not use photographs. She does not take notes when she evaluates a print. Dillion states she takes mental notes comparing the land and groves between the two. If she comes to a conclusion and finds a comparison, then a report is generated. If there is no comparison then the print is marked as unidentifiable.

Before the next witness testifies, the defense makes an objection for the record in respect to comparison and analysis of the DNA on the grounds of the failure to establish a chain of custody. The objection is overruled. Presby recalls Detective Gregory Stearns and presents the witness.

16. GREGORY STEARNS (recalled)
In November, 2009, Stearns met with John Ruetten and showed him some photographs of rope, the same rope that was booked into evidence. (People’s exhibit number 43.) Stearns also showed Ruetten other rope photographs as well as photographs that were taken at the crime scene. Ruetten told Stearns that rope was not in his residence at the time of the murder. Ruetten focused in on the frayed ends of the rope and was certain it did not come from his home.

Direct is finished and cross begins by Overland.

Overland asks Stearns if he asked Ruetten how he knew (the rope did not come from his home) at the time of the murder. Stearns testifies that he never asked Ruetten that question.

In redirect Presby asks one more question but Judge Perry interrupts and asks his own questions. The rope was shown to Ruetten and Stearns asked him if he’d ever seen it before and Ruetten replied he’d never seen it before. That’s it for Stearns recall to the stand.

Ms. Torrealba calls Jennifer Butterworth.

Ms. Butterworth is a criminalist with the LAPD crime lab currently assigned to the serology DNA section. She’s been with the department for ten years. She describes her position states she’s been certified as an expert witness before approximately 25 to 30 times. She gives her background and training. Butterworth has been with the serology department about eight and a half years.

Butterworth performed DNA testing on items from Rasmussen’s case. She first performed DNA testing in December, 2004. She described the analysis performed at that time, which would have been presumptive tests for blood, nucleated epithelial cell searches using a microphone and then DNA analysis of particular items.

Butterworth explains the “four steps” it takes to go from an item like a swab to a DNA profile. The first step is DNA extraction. The second step is DNA quantification. The third step is P.C.R. amplification. The fourth step is running a sample using capillary electrophoresis on a genetic analyzing instrument.

(These steps are then described in more detail.)

Butterworth testifies that there were different types of kits available in 2004 verses 2009. The kits that the lab used back in 2004 (that are still available) consists of two different kits which combine target 13 genetic markers plus a gender marker. Currently the lab uses a new kit called identifier. It combines those 13 markers and adds another two for a total of 15.

The difference between the two is the 2004 kit came in two parts but the 2009 kit has everything in a single kit.

Butterworth prepared a single page report from her analysis in 2004, dated February 8th, 2005. It’s marked as People’s 17 for identification.

Butterworth, when assigned the case made a request first with LAPD property to request items to test for possible biological evidence. At first, there was difficulty locating the item with LAPD. When she had trouble locating it, she then contacted the coroner’s office and spoke to a technician. At some point she spoke to Dan Anderson. In January, 2005 she was able to obtain the evidence from the coroner’s office.

Butterworth identifies the photo of the envelope she received. She states that the photograph up on the screen, she took that photo. She points out her identifying information on the envelope. The next photo Butterworth states she took also. It’s item “30” from inside the envelope. The inner packaging and the two bite mark swabs. Butterworth identifies the envelope sealed by Dan Anderson and her identifying marks. Butterworth then identifies People’s #6, a photograph of the original evidence envelope and protruding red cap shown sticking out of it.

Butterworth is now shown a photograph, People’s #118, a photograph depicting an envelope and a tube. Butterworth took the photo #118. It’s the reverse of the envelope they just saw and the tube has been removed. Butterworth identifies the writing on the tube that is hers.

Another photo of the tube People’s #7; Butterworth testifies she took the photograph. It’s the same tube, rotated in the photo to see other writing on the tube.

When reading the other writing on the tube, Butterworth states she could make out the word “left” and maybe the first two digits of the coroner’s case number. Butterworth states she can make out the name of the decedent on the top of the envelope in People’s #6.

Butterworth now describes what she observed when she first opened the LAPD envelope and saw the old envelope for the first time. She noted that the package was torn. She described it as “ratty” and “torn” and recalls seeing the red part of the tube sticking out. By ratty, she meant not in mint condition.

When she first pulled out the tube from the envelope, she noticed that the label was a little worn and hard to read. Judge Perry asks the witness, “Otherwise the tube appeared to you to be intact?” The witness replies, “Yes.”

Butterworth then describes that she took a portion of one of the swabs, did an extraction, examined the cellular material using a microscope and then went on to DNA extraction.

Butterworth states there were two swabs inside the tube and they are physically attached to the cap and the cap screws into the tube. The swabs cannot move around inside the tube since because of being attached to the cap.

Butterworth found a DNA profile that was consistent with a mixture. There was a major female DNA profile on the swab that did not match the victim and there was a very minor partial extra alleles that were consistent with Rasmussen’s DNA profile. Butterworth knew Rasmussen’s DNA profile because she typed the coroner blood swatch.

Butterworth made comparisons (of this DNA profile) to other items collected at the scene that matched Rasmussen’s DNA profile. She prepared several reports detailing this analysis.

Butterworth then prepared a report on item 51, People’s 119. It’s the DNA report she prepared in June, 2009. This is the DNA sample that was obtained from Lazarus while she was in custody. Butterworth then compared Lazarus’ collected DNA to the “bite mark swab” and determined that they were a match. The combination of those 13 genetic markers “is expected to be found in 1 in 402 quadrillion unrelated individuals.” (That’s a 4 with 17 zeros.)

Butterworth also analyzed “brown speaker wire” and “white cord” (rope) collected at the crime scene. She tested the rope for blood and found it positive. DNA profiles found matched Sherri Rasmussen. In all the items she tested, the only item that had DNA other than the victim was item 30, the “bite mark swab.”

Direct ends and cross begins.

Butterworth indicates a specific date on her report, People’s number 117, September 19th, 2003 is the date the DNA analysis was originally requested by Robbery Homicide Cold Case Section.

This is the date that Robbery Homicide detectives submitted a request to a laboratory in general. She started working on the request in December, 2004. The request was sitting on another analysts’ desk and she volunteered to work on the request. On or about December 15th, 2004 she contacted the coroner’s office searching for the “bite mark swab” that was not in LAPD’s inventory.

It took a little over a month for her to receive the “bite mark swab” from the coroner’s office.

When she received the evidence envelope, Butterworth confirms that the original envelope was torn. Butterworth states that there is no seal on the cap of the tube. Overland asks her, “And all you have to do to open it up is just to unscrew the top or pull the top out; right?” Butterworth answers, “Correct.”

Cross is finished and redirect begins.

Butterworth states that when she opened the evidence, it looked like a “regular dry secretion swab.” It didn’t show any presence of mold or have any deterioration or color change on the swab.

When Butterworth looked at the cells on the swab under a microscope, she noted and evaluated quantity of “nucleated epithelial cells.” In the DNA profile obtained Butterworth states the profile was “robust.” She did not see any other DNA profile other than the major profile of the defendant and the minor profile of the victim.

Redirect ends and recross begins.

Butterworth states that the cells she found were skin cells. Those cells can be found on anything anyone touches.

Recross ends and redirect begins again.
Butterworth states that these nucleated epithelial cells can come from the mouth. There are large quantities lying in the mucous membranes of the body. Butterworth explains the difference between a mouth epithelial cell and a skin epithelial cell. In the skin cells, the nucleus is degraded and broken down. Those inside the mouth are much newer and they slough off more frequently. She describes them as the nucleus being more robust than what is a part of the top of the skin.

This is why when DNA is taken from someone, they take a swab from the inside of the mouth.

Redirect ends and there is no recross.

Presby informs the court there are no additional witnesses and they are going to work out some stipulations with counsel. Presby informs the court that although they do not concede the validity of the defense’s argument with respect to the suppression of the defendant’s statement, they are not going to seek to introduce that statement at the preliminary hearing.

This is it for December 9th, 2009. The hearing is continued on December 10th, 2009.