Tuesday, December 10, 2013

Joshua Woodward Preliminary Hearing Day 4, Part II

Continued from Day 4.........

UPDATE 12/11: spelling, clarity, accuracy
December 9, 2013
When I arrive on the 7th floor, five members from Joshua Woodward's defense team are already here in the hallway.

8:40 AM
Dept. 51 opens and I take a seat in the gallery, second row.  A man from the district attorney's office brings a portable screen and sets it up in the jury box.

Janet Levine is wearing a sharp, brown winter suit.  The tailored jacket has a bit of a flair around the hips. Around her neck looks like a darker brown wool scarf. Levine's co-counsel, Megan Weisgerber is wearing an form-fitting medium gray dress and matching jacket. Weisgerber is an attractive woman with chin length, jet black hair. Judge Pastor's court reporter, Mavis, is setting up her equipment. The prosecution has not arrived yet.

8:50 AM
The defense team has neatly set up all their files on their table.  From where I'm sitting I can see six binders and various stacks of papers neatly laid out.   The court clerk and bailiff are having a conversation.  The defense brought with them several boxes of materials and a 32 bottle case of Aquafina water.

8:55 AM
Woodward enters with two more attorneys.  He sits with one of them in the second bench row on the defense side of the room.  The other lawyer sits in the row in front of me.

8:58 AM
DDA Habib Balian, DDA Marguerite Rizzo, Detective Fairchild and their witness, Dr. Kingston arrive. Dr. Kingston is wearing a double strand of pearls, a red sweater jacket with a stylish ruffle design and black slacks. DDA Rizzo has on a kelly green pea coat and I can't take my eyes off it. There's a blue and green silk like scarf around her neck.   Right after the prosecution arrives, Currie, Levine and the two prosecutors chat.  Not long after, another attorney on the defense team enters and sits in the row directly behind me.

9:05 AM
Woodward takes his seat at the defense table.

I'm still a little stuffy from a head cold over the weekend, but I'm hoping I won't need to cough too much.

9:05 AM
The case is called and counsel state their appearances. Before they begin, the people and the defense enter a stipulation of LAPD SID testing performed.  The parties stipulate that Aletha Bacon-Dillo, (sp?) a lab analyst performed testing on August 3, 2010.  Several evidentiary items were tested by the analyst, a pair of panties, white powder in a glass jar, several pills.  If called the witness would have testified that she was unable to verify the presence of misoprostol or (laprazolam?), because no certified tests are available to determine the presence of the named drugs.

9:12 AM
Ms. Kingston retakes the stand. She is still under cross examination. Currie moves the podium near the defense table.  He then places several binders at the witness box for Ms. Kingston to reference.

Currie starts off by asking if she's had any conversations with the prosecutors since she last testified. She did not have any conversations about the substance of her testimony. Since she last testified, she re-reviewed the report she submitted and the documents she was given by the prosecution.  She did not review any additional studies.

Currie then asks several questions about whether it's common for pregnant patients to have a pap smear test. It is. Then there are questions about Chlamydia and it's potential role in spontaneous miscarriage.

KC: Can a patient have Chlamydia and not be aware of it?
JK: Yes.
KC: Are you aware 80% of cases are asymptomatic?
MR: Objection!
JP : Sustained.

Currie then has the witness look at people's exhibit #10, Ms. Doe's medical records.

KC: Did she [Ms. Doe] have a pap smear as part of her prenatal tests?
JK: Yes.

The page with the test results of the pap smear and reviewed. In regards to testing for Chlamydia, the analysis page states "quantity not sufficient for analysis." It means the lab didn't have enough of that sample to render the test.  Currie asks Dr. Kingston when rendering her opinion if she considered Chlamydia as a risk factor.

JK: No because I did not see any test results that showed she had a positive test (for Chlamydia).

In Dr. Kingston's report, she said, "All her prenatals were normal and risk factors were negative." I believe Currie asks her if it's true she can't rule out that she had Chlamydia.  Dr. Kingston agrees but also adds, "But there was no testing that she was positive."  Continue reading.....

Dr. Kingston is asked if she is aware of studies that look at the placenta to find Chlamydia. She's also asked if she's familiar with a study in Switzerland about Chlamydia and spontaneous miscarriages. The question is objected to and sustained.

KC: Did you consider if ...
JK: ... Because she had no physical evidence of cervicitis...
KC: ... (There) wasn't enough material to perform the test so it can't be ruled out?
JK: Correct.

Currie then switches to questions about Ms. Doe's alcohol consumption. Dr. Kingston states the records she reviewed stated that she didn't consume alcohol.

KC: Where in the medical records did you review that?
JK: There was a report from a counseling session.

The specific document is found and Dr. Kingston reads her interpretation of the medical records.

JK: She denied exposure to chemical components.

Next are a series of questions about fetal alcohol syndrome (FAS), and what Dr. Kingston testified to previously. Dr. Kingston's opinion is that the ultrasound images did not show evidence of FAS. Evidence of FAS can be seen in the second and third trimesters. Dr. Kingston states that small fetus size can possibly give an indication. The ultrasound she had to date, as to how far along Ms. Doe was supposed to be, the size of Ms. Doe's fetus was normal.

Currie then moves on to Dr. Kingston's previous testimony about the possibility of chromosome abnormalities and pregnancy loss. Dr. Kingston's report states Ms. Doe did not have a complete testing process for chromosomal abnormalities. The first part of the testing is done with the nuchal translucency (NT) test and blood serum testing. There are two different chromosomal abnormalities that are looked at. The NT tests for one and the blood serum tests for another.  Ms. Doe's risk for the one abnormality in the NT test was 1/464. Combined with the blood test for the other abnormality, her risk was 1/190.  Dr. Kingston explains that typically, when the patient has the second trimester testing with blood test, the results are typically lower and more in line with what they see with the NT test.  Dr. Kingston testifies that the preliminary testing is usually not as accurate as the second test in the second trimester. In Dr. Kingston's opinion, M.s Doe's NT was a more accurate assessment of what her true chromosomal risk would be.

Currie questions Dr. Kingston about her use of misoprostol. Mifepristone, aka 486, prepares the uterus to be more receptive to the other drug, misoprostol.  Dr. Kingston is asked what are anti-pro-gestational drugs. She's asked about the dosing of the two drugs.  The two drugs, when used together, there is more of a success rate and the time frame is shorter.  Using misoprostol alone takes six to twelve hours.  Dr. Kingston is asked about the pharmacokinetic properties (how quickly a drug has an action on the body) and pharmaco-dynamic properties (very similar as pharmacokinetic) of drugs.  Pharmacokinetic is the "half life" of a drug.  Misoprostol's half life is a half hour or hour after onset of symptoms.  Dr. Kingston is asked if she considered the half life of misoprostol. She said she did, but added that the action of a drug continues beyond the half life.

Currie asks a hypothetical question about 12 week viable pregnancy and the dosage. Dr. Kingston would does every three hours. She says it would also depend on dose size. Dr. Kingston states placing the drug doesn't necessarily have to be in the upper part of the vagina. It can be placed in the lower part. Currie then goes over in detail the doses she previously testified about. Dr. Kingston states she's never used misoprostol in a powder form.  She's never used it that way and doesn't have an opinion of using the drug in a powder form.

Dr. Kingston is questioned about what police collected in the way of evidence and if she was shown photos of Ms. Doe's underwear. She was not.  There are several questions about whether she is aware of women using talcum powder being used by women and it's connection to cervical cancer, and a question about other studies. Those questions were objected to and sustained.

Currie asks if in forming her opinion, that Ms. Doe was exposed to misoprostol, that the DEA found no evidence of misoprostol on her underwear or bed linens.

JK: Not sure how I took that into account. I took more of her time frame of her symptoms.  ... Don't believe it factored into my opinion at all.

There are more questions about her report and what she relied on to base her opinion.  The October 17, 2009, first possibility of exposure.

JK: If she was exposed in the early morning hours of Oct. 17, it's hard to say how much of that had an impact on the early morning hours of Oct. 18th.

Another defense attorney arrives. It's the older looking gentleman with gray hair.

KC: Would it have an influence on your opinion, (as described in your report) to Ms. Doe later on denied having abdominal cramping on the first night .... [Oct 17th.] ?
JK: It might have a small ... it may as to whether or not ...
KC: (Did?) the prosecution share with you ... in (Sept. 2012?) Ms. Doe, despite an earlier statement ... that those things didn't happen? ... Did the prosecution share that with you?
JK: ... (They) shared with her one week or two before I testified and after I generated my report.
KC: How did they share that with you?
JK: They gave me a copy of the follow up report.

KC: Ms. Doe later said ... she did not experience all she said she did [On Oct. 17].
JK: Even though the prosecution shared it with me, ... I didn't read the full summary until after October 21.

Dr. Kingston states she doesn't recall a cover letter.  She received the follow up document in a meeting in her home.  DDA's Rizzo and Balian and Detective Fairchild were at her home.  She thinks Ms. Rizzo took notes.   There are questions about the meeting and what was discussed at the meeting.
The only thing Dr. Kingston recalled about the meeting is that the provided the report to her.

Currie informs the court that he wants those notes. DDA Rizzo states that her notes were work product notes.  Judge Pastor questions DDA Rizzo and based on her answers, doesn't see it as discoverable material. Currie asks Judge Pastor to look at the notes in camera. The court replies, "I'm not going to second guess Ms. Rizzo. I'll accept her representation."

KC: ... [in relation to Oct. 17] ... what evidence did you rely on that Ms. Doe was exposed to misoprostol?
JK: Without symptoms, I wouldn't have any evidence.

Currie asks if in her practice, any of her patients noted symptoms of itching from using misoprostol. Dr. Kingston states reading at some point that itching is a side effect. Dr. Kingston states she doesn't know where she read it but it was about the time she was preparing for her testimony.

Currie questions about the fetal tissue was not available for testing, and if it was available what it could be tested for. Currie asks if Ms. Doe's symptoms after drinking the Jamba Juice could be consistent with food poisoning or e-coli bacteria. In Dr. Kingston's experience, pregnant women are more sensitive to what they eat and drink.

Cross ends and redirect begins.

DDA Rizzo asks if besides the tingling, if misoprostol can also cause rashes.

JK: I'm not sure about that, too. ... (I) never had a patient describe that scenario.

The pills have a coating to protect the misoprostol.

MR: If crushed up, that could cause symptoms?
JK: Yes.

After Dr. Kingston got that updated report that facts had changed, that information did not change the conclusions in her report.

MR: Symptoms are generally dose dependent?
JK: Yes.

Dr. Kingston explains the direct effect of the drug on the body.

MR: Is it possible to have side effects of misoprostol without experiencing the [cramping] effects of the drug?
JK: Yes.

I note that several of the attorneys on the defense team in the gallery are intently working their cell phones.

Dr. Kingston agrees an individual could have side effects (tired, other symptoms) without the direct effect of the drug action (cramping) on the vagina. It's 11 AM. I'm freezing cold in the courtroom and trying to stay awake. I stop taking notes for a while.

Dr. Kingston states that Ms. Doe's chromosomal abnormality testing revealed her risk was much less than her age related risk. DDA Rizzo asks about the Chlamydia testing, symptoms and mild cases. The severity of infection increases the risk for miscarriage and that is true for any kind of infection.

The side effects of oral consumption of misoprostol, nausea, vomiting and diarrhea, and the drug cramping.  The same effects can be seen when the drug is taken vaginally.  Smoking associated risks to spontaneous pregnancy loss are not very strong.   Coffee, two cups a day, the associated risks are not very strong also.  Dr. Kingston is asked how much she is getting paid for her testimony. She is paid $400.00 per hour. At trial (testimony) she is paid $450.00 per hour.  She has billed so far, approximately somewhere between $4,000.00 and $4,500.00.

Redirect is finished and recross begins.

There are questions about what she would consider is a "very large" dose of misoprostol. 800 micrograms or in excess of that, Dr. Kingston would consider a large dose. The witness is asked about chromosomal abnormalities that are not detected in pre-screening/genetic testing.

JK: There is a literally a list, as long as my arm. Not all end in miscarriages.

Dr. Kingston agrees there are chromosomal abnormalities that can result in miscarriages.

Recross ends and there is no more redirect.  Dr. Kingston is released.

Counsel then take time to discuss the defense Pitchess motion.  This is regarding Detective Shafia. DDA Balian objects to (some of?) the Pitchess discovery. DDA Balian has a blank objection to anything over 10 years old.  Ms. Levine states she won't go into details, but she will question the detective on whether he's been disciplined about booking evidence. She also intends to ask Ms. Fairchild, about what she did learn or relied on Google® searches.   One of Detective Shafia's disciplinary actions in the past was that he was suspended for 150 days. Ms. Levine states they learned about this in the press, the LA Times. "And his suspension record was so long and associated with other Rampart type stuff," Ms. Levine tells the court. Her questioning she explains, "...it's more general; not specific. It's more on the gestalt of the investigation. ... I think it will develop question by question."

DDA Balian argue that this is 352. It would be a consumption of time.  Judge Pastor replies, "If this is an issue of handling of evidence or non-booking of evidence, I would allow the defense to inquire. ... And whether he's been disciplined in the past for not following protocol. ... With inquiry to Detective Fairchild, to what they know about .... not allow."

I believe the defense states there is alleged mishandling of evidence, of a cell phone. Mr. Woodward's phone. Ms. Levine argues the phone handling is relevant.  DDA Balian counters that the prosecution has not used anything from the cell phone in this hearing. Someone states that the cell phone is tangential.  After hearing the arguments, Judge Pastor rules under 352, inquiry regarding text messages or issues regarding all phones is certainly more prejudicial verses probative.

Ms. Levine continues to argue beyond Judge Pastor's ruling. "These communications are important. ... There are communications that the detective told her (Ms. Doe) about. ... Told her to communicate with him via cell phone." Ms. Levine argues that under Prop 115 it can't be ignored. "The text messages that set him up are missing." Ms. Levine claims the text messages were erased.

I become fascinated with the expressions on Ms. Levine's face as she's arguing the defense position.

DDA Balian counters that there's no evidence that text messages were erased, or that the storage capacity of the phone or the possibility they were written over. DDA Balian continues to argue that the information from the phone has not been presented in testimony by the prosecution or the defense.  Judge Pastor states his previous ruling stands. The court states he doesn't think it's necessary, and they're not going to get into contents of cell phone data.  Ms. Levine makes an inquiry as to what she can ask.  Judge Pastor states this covers (Ms. Doe's?) phone as well. Judge Pastor adds, "Not going to turn it into a prelim by Blackberry."

Ms. Levine asks about electronic data storage and inter-detective communication. The defense is requesting the prosecution make a search of the detectives electronic communication.  DDA Balian states they are looking into that to see what they are able to find out.   DDA Balian also informs the court that Detective Shafia was provided the Pitchess material in anticipation of his possibly being cross examined on it. 

11:48 AM
DDA Rizzo gets Detective Shafia who is waiting out in the hall.  Over by the clerk's desk, I see Judge Marcus slowly open the door to enter the courtroom from the back rooms.  He quietly speaks to Judge Pastor's clerk.

Detective Shafia takes the stand for continuation of his cross examination by Ms. Levine.

JL: (Who did) you discuss this case with?
JS: Coworkers, family, friends.
JL: ... coworkers ... who did you ...
HB: Objection!
JP: Sustained.

Ms. Levine tries to dig deeper into what Detective Shafia said about the case. She asks if he talked about his testimony verses 'I testified.'

JL: Did you talk about what you said verses just testifying?
JS: No.

Detective Shafia is asked if he reviewed reports in preparation for today.  He testifies he looked over reports in relation to his Prop 115 testimony, the witnesses he testified for.

JL: So when you went back and reviewed, did you also review physical evidence as well? ... did you look at text messages?
JS: No.
JL: Did you look at police report(s?) and transcript?
JS: Yes.
JL: Of October 20, 2009?
JS: Yes.

He looked at the transcript and watched the video of his interview with Ms. Doe.

JL: Did you look at searches and items received ...
HB: Objection!
JP: Sustained.

Detective Shafia states he just looked at what he had (reviewed) before.

JL: Would that be your copy of the murder book?
JS: Yes.

Ms. Levine then opens a big file of papers and states, "Let's talk about the original report. ... The date of the report was wrong. ... October 19 was replaced with October 20, 2009 date." The witness states he lined out the old date and put '20th' with a pen. That's the date he originally got the case.

Detective Ruffalo (sp?) who was the first detective who spoke to Ms. Doe, at the time he was the night (side?) detective for Wilshire Division. Detective Ruffalo asked for Detective Shafia's advice.

JL: You were called because you were a homicide detective or a homicide supervisor?
JS: Both. ...

Detective Ruffalo believed he had a murder. Detective Shafia advised against him filling out paperwork until they had all the facts. Ms. Levine asks the witness what is crime scene and evidence preservation.  He answers that's a broad question.

JL: What was the crime scene?
JS: From what Detective Ruffalo gave me over the phone, we didn't have one.

Nothing was done to secure Ms. Doe's apartment. Ms. Levine asks Detective Shafia to describe what is a "snare" or "sting."

JL: Does it involve getting a suspect to take certain steps?
JS: Yes.

Ms. Levine asks what is the traditional way to document that. Detective Shafia indicates there is not a "traditional" way. Each instance (case?) has it's own way that gets implemented and documented.

12:03 PM
Judge Pastor calls for the lunch break.

To be continued in Day 4, Part III.....