Overland and the bite mark.
© Thomas Broersma thomasbroersma AT yahoo.com
Continuing with my commitment to transcribe the full closing arguments in this case. This is the rest of Mark Overland's closing argument. Sprocket.
Closing Arguments, Continued Tuesday, March 6th, 2012
It’s gray day for Courtney and Mark Overland’s suits. The color of their suits is so close that from where I’m sitting it looks like an exact match. Overland goes back into the jail area to speak to his client privately.
It’s 8:20 AM. Nunez has on a dark suit, close to black and Presby has on a medium navy suit and I can barely detect a faint, light pinstripe.
We’re waiting for jurors. I finally get the first name of a gentleman whose been in the courtroom for most of the proceedings. His name is Greg and he is one of the DA’s investigators. He is one of the people who rushed to the Rasmussen’s aid during a very difficult part of the trial for them.
A few of us in the gallery mention how Detective Stearns has a constant, serious contemplative expression on his face. He looks exactly like what you would expect a seasoned homicide detective would look. I don’t believe I’ve ever seen him crack a smile. He naturally looks serious all the time.
As we wait, Mona, Pat LaLama and I chat about our pets. It’s a packed house in the courtroom again. Pat shares a great story about when she was on a stake-out with two big, burly suspender wearing detectives and a cat that was living at one of the crack houses kept coming up to her. She ended up adopting the kitty, “Kiki” the crack house cat. Hopefully, I’ll have time to share that story in detail because her husband Tony gives a great punch-line at the end and it’s a fun story.
Lazarus comes out and she’s in a silver gray loose knit jacket cardigan. Almost exactly like all the clothes she’s worn to court. At 8:40 AM the late juror finally arrives and Judge Perry takes the bench. We’re finally on the record.
Lazarus and the defense investigator, Randal “Randy” Later whisper. The jury comes in and as they enter Lazarus then leans into Mark Overland to whisper to him. Now Overland and Randal whisper.
When Overland approaches the podium he tells the jurors, “Don’t worry. It’s not the middle. We’re coming close to the end.”
There are two things related to the bite mark swab. First: One swab or two.
And second: The envelope and how was it found.
In terms (of)..... (snip) You may recall that question I asked of Mr. Anderson. The questions that were asked, to try to get Anderson to explain that reference (that was?) made to the swab and that it was really a reference to a tube....that had two swabs in it.
The second problem, that’s not really accurate because we looked at Exhibit #90, form from the Coroner’s Office that was filled out by Lloyd Mahaney and his initials. And Mr. Mahaney was very careful if you look at 4D (on the form) again to note that where (a?) swab was made, he was careful to note one or two and crossed out (the number there?) and put in “two”.
And Mr. Anderson didn’t really know what was going on in 1986 (at the Coroner’s Office). Overland reads Anderson’s testimony back to the jurors. In 1986, Anderson was in high school.
Lazarus’ arms are in front of her on the defense table. Her fingers are interlaced. She stares straight ahead and occasionally looks off to her right, away from the jurors. Overland is reading more of Dan Anderson’s testimony to the jurors.
Another missing link in the chain of custody. The prosecution’s reliance on that coroner’s log. The prosecution is relying on that log that that item was in there for that period of time. And that’s true if it really was there. But Overland brings up the GSR kits. Overland brings up that the GSR kits don’t show being logged out, and (that?) they were supposedly destroyed 20 years later.
Overland has the log up on the overhead screen and goes over the columns and that the “signed out” column is blank. Overland points jurors to the GSR kit entries and those don’t show being signed out either. The log shows no further entry on the GSR kits.
But we know different and we know different because of Exhibit 140, the log of destruction of kits by the GSR analysts. All the 1986 GSR kits were disposed of on January 12th, 2007. If they were destroyed on that date then there should have been an entry on the log showing they were taken out.
Should there have been an entry? Overland puts up the procedure manual and goes over the manual portion for documenting the log for the jurors. If they were disposed of as shown by those notes, should (mark?) disposed and mark the date disposed in the evidence log.
And that’s not there. Si either that was done or the log is inaccurate. They should be in the control of the coroner’s office, but they’re not. The log says they should be there. The prosecution is relying on the log for “beyond a reasonable doubt”. Can you rely on it?
There’s something very troubling about items for so long in the Coroner’s Office. Look at Defense exhibit P, another part of the Coroner’s Manual. (Coroner’s Office property room employee) Alicia stated (she?) follow(ed?) (the) manual. Overland reads the manual procedures for this section to the jurors. They are responsible to release evidence as soon as possible. Not 20 years later.
So it’s troubling. You have evidence that’s supposed to be analyzed by the LAPD but it’s not until 20 years later.
Then I hear something I’ve been waiting to hear in someone’s, anyone’s closing argument and Overland says it first.
“It makes no sense.”
This is one of the brakes you must apply in this case. Overland puts up on the overhead screen, jury instruction 224 covering circumstantial evidence. Before you can rely on circumstantial evidence (you have to ask?) where was this bite mark (evidence?) for 20 years? That fact has to be proven beyond a reasonable doubt.
What was collected (swab?) by Lloyd Mahaney, one or two swabs?
Integrity of the item.
And is the item in control of the Coroner for 20 years?
Are you convinced beyond a reasonable doubt? Do you have any question about that? Overland then reads the final paragraph of the circumstantial evidence instruction. Overland then goes back to his example about two reasonable conclusions and then to reject the one that leads to guilt.
Courtney Overland comes over to the podium to help him, point to an area in his prepared argument.
In respect to the question I asked about (bite mark swab?) was it taken, where it’s been. In looking at DNA analysis, Mr. Fedor, he put it best. In terms of value of items of evidence, in terms of which that is the actual item that was collected... (snip?) Back (then?) what he said was, “...preserve the integrity of the sample (wear as?) what was analyzed was taken at the scene of the crime...”
And that makes sense. If what you’re analyzing is (really what you collected at the scene?).
DNA. Mr. Safarik never looked at that. He didn’t think it was relevant. DNA. It’s a bit more complex than what we read in the paper. I believe Overland says something about the statistical analysis and it’s interpretation.
We know Ms. Francis switched tubes in one of her analysis, confusing the analysis. (I don’t specifically remember this from her testimony, but I my notes say one of my colleagues tell me Francis did acknowledge making an error.)
Overland challenges the databases that are used to create the statistical analysis percentages.
If you really look at it, it points to the innocence of Stephanie Lazarus.
SERI received from the LAPD item 8A, from mail scrapings and clippings from the left hand of Ms. Rasmussen. They (marked?) it as:
8A1 = the scraping
8A2 = three nail clippings from left nails
The prosecution “poo-poos” this evidence. (They say) you put your hand on a door knob and you pick up DNA. It doesn’t make sense, (?) But these were scrapings under the nails. This is something you would get if you scratched somebody, not something if you touched a door knob. Ms. Rasmussen was a (clean? person?). She must have washed her hands (we know?) when she got up in the morning.
The testimony of the maid cleaning, Ms. Flores, whatever happened, happened at 12:30 PM and if Ms. Rasmussen was sick, she wasn’t walking around touching door knobs getting DNA under her fingernails. What ever was under her (hands?) and nails was from the struggle.
Mr. Fedor took a swab from the underside of the nail(s?) and (here’s what?) the result was from the underside of (swabs?).
A-2-(1?)(The result was a) weak and inconclusive results (included?) a mixture from at least three persons: Sherri Rasmussen was a possible contributor to the mix, statistical probability 1 in 3,000. Stephanie Lazarus was excluded in the mix. So DNA of two people under that fingernail and Stephanie Lazarus was not one of them. We talked about that how (statistically?) just means she can’t be excluded.
What about the next one, 8A-2-2, a swab from the second nail, a mix from at least two persons and at least one male. Sherri Rasmussen was a possible major contributor of 1 in 130 trillion. Stephanie Lazarus was excluded as a contributor. The male contributor was never identified.
8A2-3 was a mixture from at least three persons including at least one male. Sherri Rasmussen, Stephanie Lazarus and John Ruetten were all excluded as contributors.
So we had three people, at least one male. It’s not Stephanie Lazarus, it’s not Sherri Rasmussen. It’s not John Ruetten’s DNA. So who was the male DNA in 8A2-2 and 8A-2-3. And in 8A-1, just because male DNA wasn’t detected doesn’t mean it wasn’t there. Don’t we want to know the answers to those questions?
A8-4-1 was from the right hand. It had at least two persons. Sherri Rasmussen was a possible major contributor of 1 in 1 trillion. Stephanie Lazarus and John Ruetten were excluded. Both of them. Who is the other one? Down’t we want to know (the answer to those questions?)?
8A4-3 Another swab from the right nail was a mix from at least two persons. Sherri Rasmussen (possible?) major contributor of 1 in 21 trillion. (The other) DNA could not have come from Stephanie Lazarus or John Ruetten. Whose is it? Don’t you want to know the (answer) to that?
8A4-4 Another swab from the right hand finger. It’s a mix of two persons. Sherri Rasmussen possible major contributor of 1 in 58,000. (Low number doesn’t mean it wasn’t her.) The rest was too weak to be detected but it was there. Don’t you want to know whose DNA that was?
8A4-5 Swab. Mixture from at least two persons, 1 of which is a male. One same profile as Sherri Rasmussen of 1 in 490 quad trillion. Stephanie Lazarus and John Ruetten were excluded. Don’t you want to know (whose that was?) The male DNA has not been identified to this date.
Don’t you want to know the answer to those questions?
The prosecution presented (the two torn nails) (testimony?) the statistical probability (of one nail) were 1 in 26,000 and (other nail?) one in 9,000. I expect that... (snip?)... We have a very low statistical probability. The prosecution (argument) said (this?) shows that (she’s the killer?).... It only means she can’t be excluded. It could be or it could not be. In circumstantial evidence in two (?possible outcomes, you must choose the one that supports innocence?).....
Item #10 was 1 in 26,000. Item #10 was analyzed by Francis in 2005 and she didn’t (k?) any blood. But when Fedor did he found blood. So she either missed it... or.....?
Swab from the ignition key was a mix from three persons, at least one of them a male. Stephanie Lazarus and John Ruetten were excluded. Don’t you want to know who that is?
Item #31 was what Nuttall mistakingly said was from #30 when it was from item #9. The DNA results for this item (swab from car). Results from the analysis from the towel found at the scene. DNA from Stephanie Lazarus was excluded as a contributor. And one hair has DNA that could be from a male.
Then there’s the hair discovered on the blanket by Patricia Fant. The hair no one had ever seen before and the foot print that just appeared.
And doesn’t it make you question this evidence that supposedly was taken care of? Doesn’t it make you wonder how this evidence was (taken care of?)?
The cuttings from the blanket (snuggy). Results (a mixture?) of blood on the blanket snuggy. Mixture from two persons including at least one male. The majority porting from Sherri Rasmussen of 1 in 490 trillion. Stephanie Lazarus and John Ruetten excluded. So whose male DNA was on that snuggy? This was after the (struggle?).
You would expect someone to have had some blood on them, but it’s not Sherri Rasmussen and it’s a male. Don’t you want an answer to that question? The other cutting 6B, Stephanie Lazarus was excluded from the DNA. So whose is it?
Talk about the DNA on the bite mark with respect to minor contributor. Well, you know the major and Ms. Lazarus and lets forget about (the fact) that it was (not?) properly preserved and collected. And lets just look at the analysis and see if the prosecution is correct in telling you the truth in that minor contributor. (I think Overland is now quoting the prosecution’s argument.)
And naturally when you swab you would pick up some cells from Sherri Rasmussen and that was Sherri Rasmussen’s DNA.
Let’s take a closer look. I’ll (there’s?) you’ll see the bottom line. That Ms. Rasmussen’s DNA contains certain alleles.
(I have to stop writing for a moment. I’m getting a cramp in my hand.)
Is there a number at a particular allele that is inconsistent with a profile. Overland goes over Fedor’s testimony at loci D21.
We looked at peaks and the number of the minor contributor #31.2 Sherri Rasmussen at D21 is #32.2, and therefore that was inconsistent with her profile. The explanation given was “allele drop out”. That’s a reasonable explanation. But there’s another reasonable explanation and that allele was not in the (sample?) and inconsistent with Sherri Rasmussen’s DNA.
Overland then goes back to the jury instruction on circumstantial evidence and the choice jurors are instructed to make if there are two reasonable explanations. They are to choose the explanation that supports innocence verses guilty.
At D21 (loci) we have an inconsistent allele. (snip) Overland goes over parts of the DNA sample.
(The prosecution is looking at (a) chart while Overland is presenting his closing and it appears to me that he shook his head.)
Unanswered questions about item #13, a smear of blood that was not Stephanie Lazarus, Sherri Rasmussen or John Ruetten. Don’t you want to know (whose DNA that was?)?
The hair on the speaker wire.
Fluff and filler by the prosecution because this is evidence that really proves nothing.
The theft of Stephanie Lazarus’ firearm in 1986. (The prosecution) wants you to believe this was all made up, because the gun stolen was used by Ms. Lazarus. That assumes that the gun stolen was used to kill Ms. Rasmussen. The first question is, that’s kind of weird. You’d do it before the crime and not sometime after. She knew she was a police officer and she could have gotten rid of the gun anytime. You can’t match the bullet. You need to have the gun and many times (criminalists?) can’t match the bullet. If your gun really wasn’t stolen, then why make a report when you’re really faking the whole thing?
It makes really little sense.
Overland brings us the “many” thefts in the Santa Monica area.
She reported it. It went into AFS. Overland claims the reporting (document?) was really a (doc?) to LAPD. (??) There were three other thefts of firearms from police officers in Santa Monica. (I don’t remember Overland presenting that, but he may have and I missed writing it down.) (The prosecution’s argument) assumes the gun stolen was used to fire the bullets. Ms. Brown (#38 Elaine Sena Brown) testified that she checked the car and the car (lock?) had been punched.
Overland then presents Lazarus’ daily planner/calendar for March 17th that shows (I can’t read it from where I’m sitting.) “Take in car.”
The dental impression. Insufficient characteristics. (In the autopsy report?) Dr. Gerald Bale, (Dr. Law’s mentor) People’s exhibit #79, dated February 25th, 1986. Dr. Bale called investigators and told them the bite mark was good for comparison.
The next piece of fluff are the bullets (that are) supposedly linked to the bullets that killed Ms. Rasmussen. Prosecution tells you there were five bullets fired. But were there really five shots fired? But not by my count. And the blanket, according to the prosecution theory was wrapped around (the gun) as a silencer.
But there was another shot. There was a contact wound to the skin. Overland reads Dr. Selser’s testimony to the jurors; her testifying about the contact shot. (It was) consistent with a muzzle imprint contact gunshot wound. But sufficiently tight against the skin, the soot would be drive into the wound itself. If (it was?) fired through a blanket, it’s not a contact wound if fired through the blanket. Two plus three plus one = six shots.
(One of the alternates looked over at me and I could swear he gave me an eye roll.)
Overland now moves onto the bullets.
(Jurors are rocking in their chairs in the back row.)
It’s 9:50 AM. Overland goes over the prosecution’s argument (about the bullets) and why that’s not the right conclusion to draw from the evidence. The bullets that were found in the home of Ms. Lazarus, none of them matched the bullets that killed Ms. Rasmussen. And I say again, she was a pack rat. None of them matched the bullets that killed Ms. Rasmussen. None of the (bullets?) is critical. What’s critical is the firearm. Whats the relevance? It points to evidence that proves Ms. Lazarus’ innocence. (The prosecution) assumes that this was the firearm that killed Ms. Rasmussen.
Forget the guns.
© Thomas Broersma
Mr. Rubin (#51 Daniel Rubin) talks about the various types of guns that could (have) killed Ms. Rasmussen. What we heard from Rubin, there were 30 or 40 different types of firearms. Rubin said, after 2-inch narrow window of firearms with a 2-inch barrel, which ones, another list. The prosecution (tells you to?) forget about all these other ones, just focus on this one.
Now finally Mr. Luczy (#44 George Luczy), who talked about the barrel cylinder gap and 2-inch barrel.
(Judge Perry is leaning back in his tall leather chair. His head is back and his chin is up a bit.)
The measurement of the barrel cylinder gab was two inches. But the (Smith & Wesson) Model 49 was 1 and 7/8 inches. But the prosecution wants you to focus on the fact that the defendant (had that type of firearm) but that Model 49 has a 1 and 7/8” barrel. Not 2-inches.
Barona (#37 Donald Barona) testified that the barrel length of (S&W?) not 2-inches but 1 and 7/8”. The Smith & Wesson had a barrel length from 1 7/8” to 2 1/4”. Her firearm did not have a two-inch barrel. It was 1 and 7/8”. The barrel does not fit.
Now Overland talks about the defense witnesses who testified about Lazarus’ character. He then goes over what the jury instruction for character evidence can be. And (it can) be a basis for reasonable doubt.
(The) prosecution could have presented evidence of bad character. But they didn’t because there isn’t (any). So, if I’ve said anything to you that made any sense at all..... (snip) see if the prosecution has answered all those (questions?). There are so few answers.
Overland thanks them and then adds: If I’ve said anything that angered you or offended you, put it against me and not Stephanie Lazarus. See if you can answer all those questions. See if you can answer. Those brakes; and apply those breaks given to you by the law.
Overland’s closing argument is finished and Judge Perry calls the morning break.
UPDATED 3:45 PM
Dear T&T readers: I haven't forgotten about transcribing DDA Presby's rebuttal argument. I'm working on it now. My only excuse is, I got lassoed by some real maverick cowboys, where we relaxed around a campfire, swapped amazing stories and I learned all about the difficulty of wrangling in the wayward calf. Hands down, the best company and one of the most memorable days I've had in a long time.
To be continued in Day 2, Part III.... Sprocket.