Monday, January 30, 2012

Stephanie Lazarus Pretrial Hearing 14, Part II

Please note that this entry is in draft form and not completely edited. I wrote it over the last two days while helping Mr. Sprocket on his big job project. I just finished it in the hallway of the 9th floor Criminal Court Building, where jury selection will get underway at 10:00 am today. Sprocket

Wednesday, January 25th, 2012
When I enter the courtroom and take my seat, I overhear Dateline Producer Robert Dean talking to Loretta and Nels Rasmussen. Dean is asking if they will stay in town through the week until January 30th, when jury selection begins. I see that the woman friend of Lazarus, whom I first saw at the July 21st, 2011 pretrial hearing is here in the front row, sitting with Lazarus' mother. She has brownish-blond hair that stops at the center of her back. Attorney Mark Overland is chatting with her. The two LAPD Robbery Homicide detectives arrive with DDA Shannon Presby. Presby stops by and greets the Rasmussen family. I see that the ABC 20/20 producer Lisa is here sitting in the back row near the entrance and we exchange smiles. She asks to borrow a pen and I pull one out of my purse for her.

The court reporter is at her computer, working. Courtney Overland is at the defense table but I don't recognize her at all. She is wearing all black, her hair is pulled back in a tight bun and her hereface looks gaunt. I would not have thought it was her, that it was someone else, but it was confirmed for me when Judge Perry read into the record that Lazarus' counsel, Mark Overland and Courtney Overland were present.

Terri Keith from City News arrives and sits in the second bench row, on the far right near the door. We exchange smiles. (Terri is an excellent reporter, often keeping tabs on over forty cases at a time.) Presby and Overland are going over evidence documents at the defense table. Co-counsel Paul Nunez goes ove to chat with the detectives sitting the first row on the right, behind the bailiffs glassed-in desk area.

Presby comes over to Nels and asks him to "...step out for just a second." The court report and Nunez greet each other and discuss cases that have recently settled in Judge Perry's court. I don't know what case she is talking about, but I overhear her tell Nunez something to the effect, "...the mother yelled profanities at the judge.... as the defendant was being sentenced..."

Matthew McGough arrives and gives me a big smile. McGough is an accomplished journalist and writer who wrote scripts for several of the last seasons of the original Law & Order.

At almost exactly 10:30 am, Lazarus is let into the courtroom. She's carrying the bag I saw her with last Friday. She give a big smile to her friend in the front row. Her mother had stepped out of the courtroom a few moments earlier. Overland is showing his client something. Lazarus puts on her glasses to read while her mother reenters the courtroom.

Lazarus' mother hands a paper to the bailiff and they speak for a moment. I overhear the bailiff reply, "That will be okay. That will be fine."

Judge Perry takes the bench. We are on the record. The 'chain of custody' issue is the first up. Judge Perry is speaking. He has read the memorandum from the defense. "Mr. Overland, you are seeking to challenge the chain of custody?"

As the judge is speaking, I realize Overland is seeking to exclude more evidence than just the bite mark swab. He's also seeking to exclude the fingernail clippings at the coroner's office, a bindle with torn fingernails collected near the entryway. Judge Perry asks to start with the bite mark.

Since I don't have a copy of Overland's motion (memorandum), I'm not completely following the argument. "Your primary objection is your position that the interpretation of the evidence log as to when the bite mark.... (reflects?) ... if at all..." Judge Perry starts.

I believe Overland repsonds, "I think the basic argument is the prosecution is relyin on the log in the absence of any entry when place into evidence until retrieved by the LAPD in December."

There's nothing in that log that it was checked out. (I think this is Judge Perry.)

"The problem with that is, they dont have any witness to put any entries that it may have been released," Overland responds.

Judge Perry asks how long the item was in evidence.

"Eighteen years. So what we have is non-testimonial hearsay. So all we have is the log," Overland continues. "No witness testimony that they were there all that time."

Judge Perry asks, "Is it your position the log is not a business record?"

Overland replies, "No, not at all. I think it's clear the coroner keeps these items for (possible? future?) prosecution. (snip) It's clear they fall within testimony hearsay."

? The other evidence is whether the absence of evidence is testimony.

The cases Overland cited in his memorandum relate to immigration cases.

Overland states, "The principle is the same."

? Whether the absence of an entry is evidence. The principal is the same...the facts are different.

I'm slightly lost with this exchange. Overland's memorandum cites a "CNR" short for Certification of Non-existence of a Record, in relation to immigration cases. Judge Perry states, "I'm glad we are having this discussion. Overland is relying on US vs. Martina? (Menendez?) Rios (sp?). Most federal courts felt that a CNR was akin to a record. Judge Perry reads from the prior court ruling motion about CNR's.

"To me, in reading the cases, I felt the situation here is different and maybe I'm missing the point," Judge Perry tells Overland.

Judge Perry muses his thoughts for the record.

The CNR is offered to prove a fact. Here, you have in the Lazarus case a log maintained by the coroner's (regulations?) items that are (retrieved?) and held and when they're checked out is indicated who checked out the item.... and I thought that if there was an (apr? exception?) of what the log says, the log is the evidence. I didn't see that as a violatio nof Menedez Rios.

Overland replies, "No witness is able to say that I was there the eighteen years and that's how the log was prepared."

? Present(ation?) of the (regulation? requirements?) (of the log) gets you past the business records.

? In a CNR, nobody is testifying in respect to the preparation...that the absence of records that nothing was checked out.

Judge Perry gives a hint of his ruling, "I just don't agree with you. There is a presumption that the required duty has been performed."

? I have a question that these documents were prepared in advance of this case. (I think Overland said this.) The coroner's manual is specific on that... that the records are (to be maintained?)...

Judge Perry tells Overland, "I think you should put that in the record and not (?) during trial. I'm confirming allowing the evidence because you have the log and someone who testifies how the log is maintianed... The fact that you have someone testify how the logs are maintained and not someone there for eighteen years... I think that goes to weight and not admissibility. I don't think that will affect my ruling, but you should present that."

Overland states he can do that during the trial.

Now they move onto challenging the fingernails. Ochi (sp?) collected at the scene and the investigator is deceased.

Paul Nunez tells the court that, Ochi was an LAPD criminalist at the location. Ochi collectd torn fingernails at the scene at the entry door. They were observed by detectives and photographed prior to collection in the presence of investigative officer (?) at the scene. He is the one that observed that process. The items were picked up and stored at LAPD, not at the coroner's office.

Judge Perry goes over what they plan to present. Photos, showing where they were at the scene. Nunez states they have witnesses that can testify to the same thing. Under observation of Detective (Hostf?) and was checked out by the LAPD serology unit.

Nunez goes back to case law, telling the court that every step of collection does not have to be presented. Overland argues that Judge Perry can't rule on (this issue) without listening to evidence. Judge Perry replies, "I agree."

Perry goes over more evidence. There was evidence collected by Mahaney. There was the bindle with two (torn) nails... the argument Nunez made, goes to both "B and C". (This is probably how they items are identified in the prosecution's rebuttal motion.)

Judge Perry goes over the next items. Now we're down to Mahaney collecting evidence... (however), there was nothing to cross (during the preliminary hearing) because those items
were not a part of what he testified. These items had not been analyzed by LAPD (Serology Unit) yet.

Both side agreed that this evidence would be tested by SERI. (See my notes covering the hearing on September 1st, 2011.) There were two nail clippings (in a bindle) damaged nail clip kit. There were an added eight fingernails collected under the fingernail kit. Eight fingernails clipped in some fashion. Two damaged fingernails that were left at the crime scene.

(At some point, it’s not clear in my notes I know Judge Perry got confused, as I did. I believe the prosecution clarifies what Mahanay did at the coroner’s office. Mahanay clipped all ten nails at the coroner’s office. The two torn nails, he clipped again, taking some of the skin. The defense wishes to only introduce the eight nails of those ten.)

I believe that both parties agreed that Mr. Mahanay collected the additional nails at the coroner's office. The people put forth to the court that all ten fingernails should not be allowed at trial. I think Nunez states that they are not going to introduce them at trial. (Now I'm confused. I thought the two torn nails that Ochi collected, and the DNA typing found on them by SERI supported their case. But maybe the prosecution is stating that they are only objecting to the nails collected by Mahanay, at the coroner’s.)

Overland then interjects. "No. We will introduce the eight." I don't think he will introduce the other torn nails.

Paul Nunez continues to argue his position, describing a possibility in the coroner's office. "In essence, we don't know what sterilization procedures were in use at that time (1986). SERI's testing will tell you the DNA is more of a trace... (snip) ...when they were collected (the eight), they were looking for fibers, trace evidence. (Back in 1986, they would not have been looking for DNA under fingernails.) Since that time, the coroner's has switched to using disposable clippers."

Back then, they possibly used sterilization procedures of soaking clippers in solution. That's not done today. Today they use single use disposable clippers. The prosecution is unable to pin down in time, when that procedure changed at the coroner's office.

Judge Perry asks some questions of the prosecution. The nail clippings, of undamaged fingers from the victim, you have eight? Yes. The defense seeks to use these then you have two clippings, two fingers that are damaged and the defense is objecting to those?

Nunez states, The bit mark, all (13?) of the alleles, they all match completely to the defendant. The damaged nails at the crime scene, some of those alleles came up to twenty-six thousand to one.

I believe Judge Perry asks if there is some scant DNA on damaged nails that came back to the defendant, and the prosecution answers. “There was such a (concomphony?) of random alelles it... (snip) miniscule. Not even something you could say one in nine.”

Overland interjects. “That’s (correct? not correct?) and those numbers are not accurate.

Nunez clarifies that Mahanay did not collect the two at the crime scene, Ocho did. Mahanay collected ten at the coroner’s. The defense is objecting to the two re-cut by Mahanay.

Judge Perry rules, “I think it all comes in. (snip) And let the jury figure out the significance. I think that’s the only way to do it. Anything else to discuss regarding chain of custody at this time?” Paul Nunez replies, “Blood typing evidence. They overlap.”

The prosecution wants a Kelly-Frye hearing on the typing. Judge Perry asks the prosecution to “walk him through” this blood and where it’s from.

I’m going to condense this section into a short synopsis. Back in 1986, they did blood typing to try to identify people, victims. The blood typing testing kits are still they used are still in use today, to type blood. The test back in 1986, on swabs of blood taken at the crime scene came back with two types: Type A and Type O, giving the impression that the assailant’s blood (Type A) was mixed in with the victim’s. When the case was reopened, the blood was tested again via DNA testing. All the blood tested back to the victim.

The prosecution wants to exclude that early test because it’s inaccurate to use for identification. The prosecution states that blood typing tests are no longer used for that. Overland wants to be able to introduce this evidence. Investigator Ochi collected the swabs. (To recap, Overland wanted to exclude the two torn fingernails collected by Ochi, but let this evidence come in.) The prosecution also added that the victim had a rare blood type that expressed a (single?) allele of Blood Type A. They have a witness that will testify to that.

Initially, Judge Perry states that they need to set a time for this Kelly-Frye hearing. The prosecution states they are not going to introduce this evidence. Overland objects that they don’t need a hearing. He argues that blood typing is acceptable for typing. It’s accepted science and the court can’t preclude us from presenting this type of evidence. Judge Perry and Overland argue back and forth. Judge Perry wants a hearing; Overland doesn’t. Nunez interjects and states that it’s acceptable for general blood typing, but it’s not as specific in this part of the case. The victim is part of a rare population of people that exhibit this blood type of O and A. Nunez adds that the testing back then was sensitive enough to picking up the type A antigen. This absorption (solution?) is still done.

Judge Perry rules. “I think you have to sort it out with the jury.”

Nunez then asks, “Then are we going to allow the testimony of Ochi? She collected the evidence.” Judge Perry clarifies his ruling. “You can’t pick and choose. It all comes in. But I will allow folks to sort it out with the jury and sensitivity issues. (snip) But, I’m on a search for truth.”

Presby tries one more argument. Blood typing is accepted for typing, It’s no longer accepted in the science community as evidence of identity.” Judge Perry responds, “If the defense bases their defense on that and you blow them out of the water, then....” (Judge Perry raises his hands at the end of his ruling.) “I think you are just going to have to explain that to the jury.” Nunez adds, “We just felt that it would take a lot of time and this would not advance (the? theory?).” Overland states that the defense can recap. Judge Perry accepts Overland’s argument. He states they should not have a Kelly-Frye hearing since the procedure is still in use today.

Judge Perry rules he will allow evidence in that Ochi did and only use evidence... (I miss the rest of this statement.) Item #30, the bite swab, chain of evidnce custody issue, that comes in. “It all comes in for different reasons,” Judge Perry rules. There is a question about Mahanay’s nail clippings at the coroner’s and Judge Perry responds with his ruling, “I think it all comes in. (snip) I feeli I’m (conceding?) to the defense to use those blood stains, that then can’t exclude the nail clippings. (snip) I don’t think chain of custody has to be proven to the ninth degree. If the defense want’s to use blood (stains?) I don’t think it’s fair to also say, can’t use fingernail clippings. They all come in. (snip) I think people should make the proof.” Presby responds, “We will.”

I believe Overland is now questioning a (new?) addition to the witness list by the Prosecution and requesting scheduling an expert and sanction for the delay in notifying the defense about the witness. The people respond by explaining about the evidence their witness will testify about. The item was given to the defense, per the Red Cross in 2009, prior to the prelim. “She did the blood banking and found the rare allele. (snip) (This) Analyist sent her (the victim’s) blood to SERI and got it analyzed.” The people identified the witness who did the testing.... an analyst.

Judge Perry moves to the prosecution motion to limit the testimony of Lyle Mayer and to limit polygraph evidence. Overland argues, “This is just the interview. 99% of what they claim is interview. I plan to introduce his conclusions. Yet the prosecution plans to introduce an expert and his analysis, based on the examination of the scene.” Presby reminds Judge Perry as to what he ruled their expert could testify to. Judge Perry states if they have the defense expert conclusions, then the prosecution’s conclusions. “I believe that in (involving? officials?) of any kind have to testify to facts. Mr. Mayer’s conclusions are not admissible. Should (not?) be able to testify to conclusion.” Then Judge Perry goes on to say in open court that Mr. Mayer now feels differently. Mayer now feels the defendant is guilty. We hear a bit of Mayer’s thoughts now through Judge Perry. “Mayer (now feels) that John Ruetten was getting into this girls pants and not telling his wife. I feel this case will be over tried by both sides.”

I believe Overland asks the Judge to explain what that means. I don’t get Judge Perry’s quote exactly but it’s something to the effect of, ‘I mean if people get involved in calling witness over witness and then there’s confusion in the case.’ He then clarifies further. “ fear that both sides will be burdening the jury with information. To me, less is often more. Lyle Mayer can testify to what he saw and what conclusions he drew based on evidence, but can’t go into opinions.” Judge Perry then asks both sides a question. “Realistically, I’d like to have a sense and how we’re going to proceed.”

Presby explains that the bones of the case was presented at the prelim. During the trial, “...there’s going to be more meat.” Judge Perry asks, “Are you planning on putting the LAPD on trial?” Presby responds, “No.” Judge Perry then asks about how long their case will take to present and Presby responds, “It’s difficult for us to call the length of cross examination.” Judge Perry states, I believe I’ve given you a lot of trial time.” Nunez adds that they anticipate, or would like both opening statements by noon and get to their first witnesses by the afternoon of the first day. Overland states that his opening statement will be two hours. Judge Perry states that with the defense opening statement, they will get to witnesses a bit later in the day, about 2 pm. The prosecution states that with their witnesses, their case will take only about two weeks. (I believe Presby states that there is a short court week in the middle of February.) “I would be done by the 21st or the 22nd,” he adds. This is for the prosecution’s case-in-chief. Judge Perry replies, “Which is what I expected. We’re having a lot of scientific evidence.”

Judge Perry then looks to the defense and asks, “Four weeks for the defense?” Overland replies, “I’m not sure that’s accurate. I can’t tell you.. (miss the rest of his sentence). (snip) Then there’s rebuttal.” Judge Perry states, “I think you always want to over estimate.” Perry asks both sides if they have anything else they want to add.

Presby state they have a motion on polygraph. Judge Perry states that’s not admissible. The statements are but not that they were made during a polygraph. (This gets me wondering as to “who” was polygraphed.) Nunez brings up the fingerprints found at the scene. Judge Perry asks, “Can you stipulate that there are no defense fingerprints at the scene?” Nunez replies, “We can your honor. But there are several witnesses on the defense list. (snip) (Comp?) to testify that these prints are not any of the defendant.” Overland rubs his face. The prosecution adds that an analyst is gone the entire month of February. Judge Perry asks, “Mr. Overland, what fingerprint evidence do you need?” I believe Nunez responds that there were two unidentified prints on a banister and on the phone. Overland tells the court, “I don’t want to get into that right now.”

Judge Perry tells the parties, “When a defense counsel says that on the eve of trial it give me concern. I don’t want any surprises.”

Overland states, “There are certain (privledges?) that I’m not willing to give up. (snip) Work product.” Judge Perry tells Overland, “I’m not going to require that you divulge what (that is).”

Presby brings up the issue of cameras for opening statements. Judge Perry rules, “Because of my uncomfortableness of where this is going, I’m not going to allow cameras for opening statements.” Judge Perry tells the parties that they will get 100 jurors on Monday, January 30th. They will try to pull in more, but they will not get the 200 that they initially wanted for this day. The issue of seating for the families is discussed. Sherri Rae Rasmussen’s family counts off the people that need seats and she tells the court “Sixteen.” Judge Perry responds, “No way. I don’t think that’s reasonable. I’ll cut it down to five or six.” The family confers and limits it to siblings and spouses. Loretta Rasmussen states, “The core group is eight.” Judge Perry rules that eight seats will be reserved for each side, victim and defendant families.