November 18, 2005 - POST CONVICTION APPEALS by Justice4Hank

POST CONVICTION APPEALS

FEDERAL DISTRICT COURT EVIDENTIARY HEARING TRANSCRIPT VOLUME 2  NOVEMBER 18, 2005

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS AMARILLO DIVISION )

HENRY W. SKINNER, )

Petitioner, ))

~ )

)

No. 2:99-CV-0045

** CAPITAL LITIGANT** )

DOUG DRETKE, Director ) Texas Department of Criminal Justice, )

Institutional Division, ) )

Respondent. ) )

STIPULATED ERRTA SHEET FOR EVIDENTIARY HEARING REVISED TRANSCRIPT VOLUME I Page Line Number Number 7 7 7 7 9 17

Corrected

4.5

Burrough's Burrough's

15 16 15

CV of

Dr. Wm. Watson Gene Screen been consìdered ìn state cour

CV of Wm. Watson

(ìnaudìble).

GeneScreen been presented to the state court (ìnaudible) know it is over before it

4 4

'98? was heavier

popped up into my head. Never wanted to be.

was he heavier popped into my head. Never wanted to be in it.

1.5

Burroughs'

Buroughs'

stars.

Uncorrected

28 37 42 52 56 57 68 76 77

'95?

THE COURT: Overrled. What was your answer?

THE COURT: What was your answer?

24-25

when he's been drìnkìng?

when he'd been drìnkìng?

only person who was at only person at she (inaudible) was having sex with she was having sex with her uncle her uncle or were you just not the or would you just not have told just not (inaudible). Would you have told

24-25 1

Yes, she did.

Page

Line Number Number 6

the professĂŹonals

testing. . . the professionalĂŹsm

87 126

243

the defense had had forensic

214 228 234

the defense had forensic testing...

150 150 150 162 164 168 169 179

Corrected

Uncorrected

12- 1 3

20 21

20-21 20 5 18 5

23 21

6-13 7

I'm just not sure.

allergic to Codeine but perhaps cast some suspicion Donnell as an alternative? review that exhibit marked Page 5, yes. Here's his Page 5. the results if you did locker room. the university.

accuracy by that evidence front door. me, and * * * * * * * * . . . PFF* . . . If Han

Bil McMan

A just not Mr. Robinson, I'm sure. allergic to Codeine. But perhaps cast suspicion Donnell as an alternative suspect? Review this exhibit we've marked

Page 5, yes. His Page 5. the results of the tests if you did locker. the university there. accuracy why that evidence front room. me, and Katie Gerhardt said, "If

Han Bil McMinn

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS AMARILLO DIVISION )

HENRY W. SKINNER, ) )

Petitioner, )

~ )

)

No. 2:99-CV-0045

** CAPITAL LITIGANT** )

DOUG DRETKE, Director ) Texas Department of Criminal Justice, )

Institutional Division, ) )

Respondent. ) )

STIPULATED ERRTA SHEET FOR EVIDENTIARY HEARING REVISED TRANSCRIPT VOLUME II Page Line Number Number 253 253 253 253 261

282

Uncorrected

1.5

Burrough's

4.5

Burough's Dr. Wm. Watson Gene Screen (inaudible a preaching alcoholic A. He was

15 16

24 7-8

CV of

slurng his words, some and some E

294

301

1 6- 1 7

316 317 317 335 342 346 346 346 353

7 2 18

4 9

not. This is far above that. so it's -- as soon as it's hydrolyzed Pinsterwahl Pinsterwahl's Pinsterwahl's his MED 45 cutting

14 19

him unconscious...

20-21

On Page 1461 and 15, Line 23 Pinsterwahl's

the references at 5:30.

Corrected Burroughs' Burroughs'

CV ofWm. Watson GeneScreen (inaudible) a practìcing alcoholic A. Yes. He was slurrìng his words. Some and some not.

This is way far above that. so as soon as it's hydrolyzed Pinsterwald Finsterwald's Pinsterwald's it's MED 45 codeine him unconscious...." the reference at 5:30. On Page 1461, Line 23

Pinsterwald's

Page Line Number Number 361

13 5

Uncorrected

Corrected

report, or among others, Pinsterwahl Pinsterwah Pinsterwahl

Pinsterwald report of, among others, Pinsterwald Pinsterwald Pinsterwald

paricle

parial

the cour could hear crìticism on.

the cour could (inaudible).

thought either that case where the defense the knives, maybe the murder weapon hair in Ms. Busby's fist, these would not have hared him?

Pìnsterwahl

362 374 375 375 378 385 394 396 439

thought that either that case where you're the defense

the knives, the murder weapon

440

hair in Ms. Busby's fist would not

24 5

8 14

1-2 19

have hared him? 441 441

452 462 462 462 464 464 517

535 535 537 537 539 539 542 543 543 545 546 547

some exhibits. Okay, fine. Your Honor the mitigations evidence

some exhìbits?

12-13 21 23

tured on ineffective assistance

Okay, fine. Yes, Your Honor the mitigating evidence turned on the ineffective assistance

cour fraud

court found

cour fraud

cour found

1 0-11

findings and conclusions

17 1-2

which is whìch then you have.

findings of fact and conclusions which ìs which then, Your Honor.

"upper gluteal area (inaudìble).

"upper outer gluteal area (inaudible). "

4-5

he got 16.

he got 60.

Toroidal .40 in death.. . are usually very (inaudible),

Toradol

12 8

6 13

4 21-22 3

16 21 10

551 551 553

20 24-25 15-16 17-18 20

554 554 555

8 9 21

genetic material and

somebody

caviar eggs, to try to determine Mitochondria forms single chromosome, So it different cell your body Peel free to use that He would not in Switzerland and (inaudible) it's parial at best data fie but yes,

that does it.

you should (inaudible) always be. after the chain reaction put a whole bunch

.40 is death. . .

are usually very combative, Genetic material, and as somebody caviar eggs to try to determine Mitochondrìa form single chromosome, so it different cell in your body

Peel free to do that It would not in Switzerland (inaudible) it's parial data at best data fie. But yes, that's doing it. you should be (inaudible) always. at (inaudible) chain reaction put in a whole bunch

Page Line Number Number 566

l t..

21-22 6-7

571 571 573

17 25

576

Uncorrected when you reached might see T 174 it A's the consensus THE COURT: (Inaudible). So where's Nashvile to Dallas

Corrected why you reached might see at 174 it A, as the consensus THE COURT: So where's

Nashvile or to Dallas

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS AMARILLO DIVISION )

HENRYW. SKINNER, )

)

Petitioner, )

~ )

)

No. 2:99-CV-0045

** CAPITAL LITIGANT** )

DOUG DRETKE, Director ) Texas Department of Criminal Justice, )

Institutional Division, ) )

Respondent. )

)

STIPULATED ERRTA SHEET FOR EVIDENTIARY HEARING REVISED TRANSCRIPT VOLUME III Page Line Number Number 584 584 584 584

(

1.5

4.5 15 16

Burough's Burough's Dr. Wm. Watson Gene Screen the -- (inaudible) IID-2 hair,

Buroughs' Buroughs'

CV of

CVof Wm. Watson

Three of

(deleted) A Yes. (Inaudible). Those those three samples. And below (inaudible).

585

18-19

585 585 586

A (Inaudible). Those those three samples and below.

587 588

9 6

588 589 589 592 594 594

Corrected

Uncorrected

(Inaudible) 28.

GeneScreen the -- 110-2 hair,

differences ìs

differences are

electronic data, rìght time table to look at

electronic data to look at

10-1 1

thirt percent T and thirty percent C

3-4

Inclusive

fifty percent T and fifty percent C Inconclusive

12 10 11

headed 16294. 16294 in the '95-96 the hair's an N.

headed 16294. At 16294

in '95-96

the hair'san A. At 228

Page Line Number Number 595 596 600 601 611 612 615 633 633 633 640 645 654 656 658

21 8

Uncorrected dark of black triangles changes that's the mixture

prĂŹmer as to do

A In detail, yes. report is final interpretations

13-14 10 14

"Answer: They certinly agreed

changed that's a mixture primer to do A In detaiL. report's final interpretations

"They certainly agreed I submitted it as a critique publish them, it took to do all of it, and, or I should say A I believe they do.

Higher from the (inaudible). tissue Innocence Project inconclusive

18-19

indicate this Is an issue I don't

indicate this is an issue, I don't

So (inaudible) if there is

So if there is many protocols. And all of them

21-22 22 22 19

20 22 21

25 23

1-2

many protocols. Q And all of them

727

6-8

DNA testing in 2001 rules what

16- 1 7

22 15-16 6-7 20 13 19

4-5 7-8 15-16 17-18 22 14-15 24 22

and that's it. right there.

in 1999 is (inaudible). confirm as to Skinner's against him.

DNA testing in 2001 ruled what counsel's decision on testing was in 1999 (inaudible). confirm Mr. Skinner's against him?

what kind

what kinds

the officer

the officers who, when they tell you something MS.ODEN: my yard.

counsel's decisions on testing was

dark black trĂŹangles

I submitted. It was a critique published them, but it took to do all these things, and I should say A They do. and (inaudible). right here. Highest from the computer (inaudible). fissure innocence project exclusive

669 675 678 694 699 709 716

735 738 738 739 742 747 749 754 758 765 779 779 779 797 809 823

Corrected

who when they tell you something MS. HAYES: my hard. No, I can't. 1997 been of previous on admission

that Skinner told her. information that was received that he had (inaudible). that the confession was made first

statement,

I can't. 1994 been previous

an .admission that Hank Skinner told her. information was received that he had. that the confession that was made "her statement,"

) "

Page Line Number Number 827 832 833 843 843

Uncorrected

Corrected

by defendant.

a alcoholic (inaudible).

by defendant (inaudible). a alcoholic.

to that alcohoL.

to that on alcohoL.

his decision to make, and he

not satisfied, but

his decision ultimately to make, but he not satisfied with it, but

EVIDENTIARY HEARING, VOL. II 11-17-05

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS AMARILLO DIVISION

* NO.2: 99 - CV - 4- ,5

HENRY W. SKINNER

* * * *

Pet it ioner,

vs.

(C(Q~W

DIRECTOR TDCJ - ID GARY *

JOHNSON, et al **

Amarillo, Texas * November 17, 2005

Respondents.

EVIDENTIARY HEARING BEFORE HON. CLINTON E. AVERITTE U. S. MAGISTRATE

(VOL. II)

APPEARANCES:

For Petitioner:

MR. DOUGLAS ROBINSON Skadden, Arps, Slate, Meagher & Flom 1440 New York Ave. NW Washington, D.C. 20005

MR. ROBERT C. OWEN Owen & Rountree

P.O. Box 40428 Austin,

For Respondents:

Texas 787D4

MS. KATHERINE D. HAYES Office of the Texas Attorney

General

Capital Litigation Division P. O. Box 12548 Austin, Texas 78711

MS. GEORGETTE PATRICE ODEN Office of the Texas Attorney

General

P. O. Box 12548 Austin, Texas 78711

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. II 11-17-05

248

MS. MARGARET SCHMUCKER Office of the Texas Attorney

General

Post

conviction Li tigation Di v.

P. O. Box 12548 Austin, Texas 78711

**** (See Last Page)

Proceedings recorded by electronic sound recording, transcript produced by transcription service. ./

BETTY TATE, 3101 TOWNBLUFF DR~ #923, PLANO, TX. 972-596-9442

249

EVIDENTIARY HEARING, VOL. II 11-17-05

1 I-N-D-E-X 2 WITNESSES CALLED BY PETITIONER 3

4 5

DEBBIE ELLIS

Direct by Mr. Owen................... Cross by Ms. Schmucker................ Re-Direct by Mr. Owen................ Re-Cross by Ms. Schmucker............ Re-Direct by Mr. Owen................

Vol.

Paqe

I I

I I I

21 34 47 50 52 54 65 70

JAMES HAYES Direct by Mr. Owen.................... Cross by Ms. Schmucker...............

Re - Di rect by Mr. Owen................

I I I

VICKIE BROADSTREET Direct by Mr. Owen...................

Re-Direct by Mr. Owen................

I I

77 78

JOHN MANN Direct by Mr. Owen................... Cross by Ms. Hayes....................

I I

79 91

I I

178

Direct by Mr. Robinson~.............. I

209

Cross

by Ms. Schmucker............ ~ . .

11 12 13

HAROLD COMER Direct byMr~ Robinson...............

Cross by Ms. Hayes..... ~ . . . . ~ . . . . . ~ . .

15 KENNETH W. FIELDS 16

ANDREA REED

Direct by Mr. Owen................... I 18

Cross by Ms. Hayes ~ . . . ~ . . . . . .. . . . ..".. I I

Re-Direct by Mr. Owen~............... II

225 257 290

19 20

DR. WILLIAM LOWRY Direct by Mr. Robinson............... II Cross by Ms. Oden..................... I I Re-Direct by Mr. Robinson............ II Re-Cross by Ms. Oden................. II

Re -Direct by Mr. Robinson (Rebuttal). I I I

WILLIAM THOMPSON Direct by Mr. Robinson............... II

Cross by Ms. Oden.... ~ . ~ . . . . . . . . . . . ., I I

291 315 372 379 817 385 407

25 BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

250

EVIDENTIARY HEARING, VOL. II 11-17-05 1

2 3

GARY TAYLOR Direct by Mr. Owen................... II Cross by Ms. Schmucker............... I I Re-Direct by Mr. Owen............~... II Re-Cross by Ms. Schmucker............ II Re-Direct by Mr. Owen........ ~... ~... if

444 459 486 487 488

4 5 6

7 8

DR.. WILLIAM SHIELDS Direct by Mr. Robinson...............

Cross by Ms .Oden. . . . . . . . . . . . . ~ . . . . . ~ I II

III III II Re-Direct by Mr. Robinson (Rebuttal). IIII Voir Dire by Ms. Oden................ Re-Direct by Mr. Robinson (Cont' d.).. III Mr. Robinson............ Re - Cross by Ms. Oden.................

Re-Direct by

538 600 630 634 707 713 715

WITNESSES CALLED BY RESPONDENT 10

DR. MICHAEL CHAMALES

11 12 13

14 15

II II II

495 509 532

III III

638 680 705 716

Direct by Ms. Hayes.................. I I I

721 740 745

Direct by

Ms. Oden.............. ~ . . ~ .

Cross by Mr. Robinson................ Re-Direct by Ms. Oden................

DR. WILLIAM WATSON Direct by Ms. Oden................... Cross by Mr. Robinson................ Re-Direct by Ms. OÃ¹en................ Re-Direct by Ms. Oden (Rebuttal) .....

I II I II

16 JOHN MANN

17 Cross by Mr. Owen............~..~.... III pRe-Direct by Ms~ Hayes.......~....... III 1~ GERRY DOUGLAS 19

Direct by Ms. Hayes.................. I I I Cross by Mr. Owen.................... I I I

749 754

20 21

HAROLD COMER Direct by Ms. Hayes................... III

Cross by Mr. Robinson................ I I I

756 768

CONNIE LOCKRIDGE 23

Direct by Ms. Oden................... I I I Cross by Mr. Owen.................... I I I

Re-Direct by Ms. Oden.:.............. III Re - Cross by Mr. Owen................. I I I

769 "

784 787 789

BETTY TATE. 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING. VOL. II 11-17-05 1 2 3

TERRY YOUNG

D ire c t by Ms. 0 de n. . . . . . . .. . . . . .. . . . . .. I I I Cross by Mr~ Robinson~...~.........~. III CONNIE NEIGHBORS

Direct by Ms. Oden..................." I I I

251

790 798

799

KATIE GERHARDT 5

Direct by Ms. Hayes.................. I I I

CrosS by Mr. Owen....... ~ ~ . . . . . . . . . .. I I I

813 820

TRACEY JENNINGS 7

Direct by Ms. Hayes.................. I I I

Cross by Mr. Owen.................... I I I Re-direct by Ms. Hayes............... III

822 828 829

10 11 12 13 14

15 16

17 18

19 20

21 22 23

25 BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

252

EVIDENTIARY HEARING, VOL. II 11~17-05

E-X-H~I-B-I-T-S

PETITIONER'S EXHIBITS

1 Affidavi t of Andrea Reed dated 9-27-97

2 Statement of Andrea Reed to police

133

141

8 Letter to Comer from

223

9 Court Order for Release

223

10 Medical Records of Coronado

223

11 Inmate Jail Records

110 223 223 304 310 223 635

223 223

635

638

Skinner

of Records

Hospital

10 11 12

12 Skinner Prescription Records II 13 Affidavit of H. Comer II 15 Affidavit of Lori Brim II 18 CV of Dr. Lowry

22 Affidavit of J. Hayes

15 16

17 l, 1 fl

19 20

21 22

Sus. 305 311

Sus.

26 McMinn letter to GeneScreen

III III

28 Orchid Cellmark Disc.

II I

636

29 Affidavit of Dr. Shields

III

3 a CV of Dr. Shields

III

II II

676 636 636 385 388

679 637 637 405

405

SUB

405

SUB.

405

305

311

I I II II

89 89

25 GeneScreen report dated 13

311

Skinner dated 6-25-94

297 ~'

Comer dated 6 - 24 - 94

299 311 224

7 Letter to Comer from 6

II II

Marked Admitted

6 Letter to Skinner from 5

Vol.

2-6-01

7-20-00

Response

31 FBI Protocol 3-15-04 32 CV of Dr. Wm. Thompson

33 Article written by Dr. Thompson 34 Article written by Dr. Thompson 35 Article written by Dr. Thompson 36 Article written by Dr.

Thompson 38 Let ter to John Mann dated 8-16-00 (DNA Testing)

40 Pampa News Article 23

41 Amarillo Globe article 42 Transcript of Arraignment

43 Excerpts of Show Cause

II I

311 312

638

SUB.

312 312

Hearing

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

253

EVIDENTIARY HEARING, VOL. II 11-17-05 1

73 75

77 78 79

Sus.

Supplemental Report by III

627

Max Courtney's Report I

~23 313

Morse Burrough's Report I I

377

223 313 441

Morse Burrough's I I I Supplemental Inv. Report

Affidavit of M~ Kent Sims II dated 1-1-94

5 6

223 639

Dr. Shields

Affidavit of Harold Comer I

80 81

Sketch by Dr. Thompson I I

Excerpt from Robert I I I

RESPONDENT'S EXHIBITS 8

1 Andrea Reed Recanting

11 12 13

14 15 16

17 18 19

Affidavit

21 22

Statement to Police by

Andrea Reed 1-1 - 94

Jessica Reed's statement dated 1-1-94 Affidavit of John Mann 11 CV of Max Courtney 13 Mitchell's Police Report 15 dated 1-3-94 Notes of Connie Brainard 16 Brainard Police Report 17 dated 1-6-94 Affidavit of Wm. Watson 25 CV of Dr. Wm. Watson 26 Dr. Peacock's Protocol 27 Let ter to Gene Screen 28 dated 7-20-00 Letter to J. Mann 11-21-00 30 Statement of Facts 32 Statement of Guilt 33 Bad Acts List 34 Video of Skinner Statement 35 35-A Transcript of Videotaped 6

Statement

20 38 40 41 42

441

springsteen Trial

441 703

639

Vol.

II II

III I

III III III III III III III III III III III III III III

II Skinner Medical Records II CV of Dr. Chamales Overheads of Testing Process I I I II I Clerk Order 7-21-95

Marked Admi t ted 258 258

811 811 79

756 Sus. 778 779 776 782 679 641 723

777 784 679 641 724

585

727 737 738 735 795 795 305 497 656 809

727 738 739 745 796 796 311 498 656 810

24 25 BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

254

EVIDENTIARY HEARING, VOL. II 11-17-05

P - R-O- C-E-E - D- I -N -G- S

1 2 3

THE COURT: Good morning .

Mr. Skinner, I'm

4 not making any judgments. I've just been contacted and

5 advised that there was a little bit of an issue 6 yesterday with respect to following instructions. 7

MR. SKINNER: Yes, sir~

THE COURT: Don't make any contact wi th

9 anybody in the audience. Just pay attention to what's

10 happening in open court. If one of the guards or 11 deputies say do something, then do it, and if that's and -lawyers

12 unreasonable, then report it to your

MR. SKINNER: I have done that, Your Honor.

THE COURT: Pardon me?

MR. SKINNER: I have done that.

THE COURT: All right, but do as they say and

think that's something that you shouldn't have to do, go ahead and do it and then report it to your lawyers and if they think it's important enough, they '"l 1

contact me.

17 l,

you

Do you understand?

MR. SKINNER: Yes, sir.

THE COURT: All right.

I believe we had Ms.

23 Reed on the stand. Are you ready to cross? 24

MS. HAYES: Yes, Your Honor. We have one

25 wi tness here this morning that hasn' t been sworn in. BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. II 11-17-05

255

1 It's our expert, Bill Watson. THE COURT:

I'll go ahead and administer the

3 oath. 4

MR .

ROBINSON : As long as we're at that i we

5 have a wi tness here who wasn' t here yesterday too. You 6 can j ustadminister the oath - - as a matter of fact, two

7 witnesses, I believe, Dr. Lowry and Dr. Shields. THE COURT:

If you will raise your hands and

9 take this oath.

10 (Witnesses Sworn) 11

THE COURT:

MR. WATSON:

THE COURT:

MR. WATSON:

MR.

THE COURT:

MR.

SHIELDS:

MR.

LOWRY:

THE COURT:

SHIELDS:

Do you, sir? I do.

And your name? william Watson. Yes, sir.

And your name?

William Shields. Yes. william Lowry. The rule has been invoked. That

20 means that most of the fact witnesses but not all the 21 witnesses are excluded from the courtroom, or nearly all 22 of the witnesses are excluded from

the courtroom, and

23 are not allowed to discuss the testimony of the other" 24 witnesses. The attorneys have agreed that the witnesses

25 who are here to render expert opinions will be excluded BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

256

EVIDENTIARY HEARING, VOL. II 11-17-05

1 from the rule and allowed to hear the testimony, which

2 might impact important questions that are asked, so 3 you're excluded from the rule and allowed to remain in "

4 the courtroom and hear the testimony, but you're not

5 excluded from the rule as far as discussing the rule and not 6 testimony with witnesses who are under the

allowed in the courtroom, or with each other.

You can

8 talk to the attorneys about your testimony.

9 All right.

THE BAILIFF: Andrea Reed has not shown up.

THE COURT: Has anybody had any contact at all

12 with this witness? 13

MS. HAYES:

I have not.

THE COURT:

How about you?

MR. OWEN: No, Your Honor, not today.

THE COURT:

She's your wi tness.

Do you have

17 her phone number? ,

MR. OWEN:

I'm sure we have a home number for

19 her, Your Honor, and we'll get that and see if we can"

20 contact her. THE COURT:

All right.

We'll be in recess for

22 a while.

23 (Short Recess) 24

MR. OWEN: Your Honor, we understand Ms. Reed

25 has arrived. BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

257

EVIDENTIARY HEARING, VOL. II 11-17-05

THE COURT: You're the same Andrea Reed who

2 testified yesterday afternoon?

Yes,

MS. REED:

THE COURT:

sir.

And you

understand you're

still

under oath? Yes,

MS. REED:

THE COURT:

sir.

All right, you

may

cross.

CROSS EXAMINATION

11 BY MS. HAYES: 12

Good morning, Ms. Reed.

I'm Katherine Hayes with

13 the Attorney General's Office. When you had a chance to 14 write the affidavit in ' 97 that you made for Skinner's

15 attorneys, were you given a chance to point out every 16 possible instance where you said that you either lied 17 previously or you maybe gave a false impression?

Was I given - - I'm sorry. 19 Q Were you given the chance to possibly explain evĂ¨ry

.18

20 possible lie or false statement in your affidavit? 21

I don't know how to answer that.

I wrote that

22 myself (inaudible). 23

It wasn't like when you met with Skinner's

24 attorneys and they said pick out the top five lies, and

25 only put five in here? Sort of like a restriction? BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

258

EVIDENTIARY HEARING, VOL. II 11-17-05

No.

1 2

MS. HAYES: Ask to approach.

THE COURT: You may.

(By Ms. Hayes)

I'm handing Ms. Reed Respondent' s Reed?

5 1. Do you recognize what the document is, Ms .

6 A Yes, ma' am.

7 Q Could you tell the court what that is?

8 A This is where -9 Q Is that actually your affidavit from ' 97?

10 A Yes, it is because I wrote this all in. 11

Do you remember your written statement, or your

12 voluntary statement to the police? Was that like a four 13 page document? It was kind of long, wasn't it? 14

Yes, once it was written.

MS. HAYES: Ask to approach again.

THE COURT: You may.

(By Ms. Hayes) And does

Respondent' s 2 appear to

1l be the statement that you made to the police? 19

Yes, ma' am.

Now you're not saying that everything that you put ../

21 in the police statement is actually wrong, are you? I 22 mean there are just details that are wrong, isn't there? 23

Yes, ma'am.

And you're also not saying that all of your trial

25 testimony was wrong, but just those examples that you BETTY

TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX~ 972-596-9442

259

EVIDENTIARY HEARING, VOL. II 11-17-05

1 pointed out; isn't that right? 2

Yes, ma' am.

I'd like you to look at Respondent's 1, that's that

af f idavi t, and I'd like to talk to you about the

first - - I think it's the first lie that you said.

You

6 said that "Skinner entered the house without my

7 permission and I didn't know how.Ă&#x; And that'sstiii 8 your testimony today, he entered your house and you 9 didn' t know how he got in; is that correct? 10

No, ma' am.

Okay, it's not correct? What is correct then?

That I helped him enter my house.

Oh, okay.

Is it true - - if you look at the

14 affidavit on Page 1, the bottom paragraph, it starts 15 off, "This is what really happened," and I'd like to 16 talk to you about some of those comments that are in the

17 affidavit.

1B It says at the start "At about midnight on the 19 night of December 31st, 1991, (sic) I was in the

bedroom

20 of my trailer house at 705 Henry Street, in Pampa,

21 Texas, with my daughter, Jessica, and son Khris, when I

22 heard someone pounding on the wall." Now, is that still

23 correct? 24

Yes, except for it's ' 93.

Oh, I'm sorry, what date?

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

260

EVIDENTIARY HEARING, VOL. II 11-17-05 1

You said ' 91.

I'm sorry. December 31st, 1993. And that is your

3 date. Now, the next thing it says that you asked the 4 person to identify himself and you heard a voice that

5 you recognized as Hank Skinner shouting. Would that be 6 correct, you recognized Mr. Skinner's voice? 7

Yes, ma'am.

And he said, II I'm hurt, please let me in, or some

9 words to that effect. II 10

Yes., ma' am.

All right. IIAt first I told Hank to leave, and 12 threatened to call the police if he did not dO so." Is

13 that true, you threatened to call the pOlice? 14

Yes, ma' am.

Why were you threatening him with the police?

It was after midnight, and my children were in

17 there asleep, and the last I had heard from him was that l

1K he was unconscious on the couch and (inaudible). 19

The last thing you heard was that he was on

the

20 couch unconscious at his house? When did you hear that'? ./ Right before dark. A 21 22

Who did you hear that from?

From Twila' s oldest son.

That would be Elwin Caler, correct?

Scooter.

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. II 11-17-05 1

261

Did he call you, did you meet him, or how did you

2 find that information out from Elwin? 3

I was building a fence in my front yard and he

4 walked by and he was going to find his mamma to make 5 supper and they couldn' t wake Hank up, is what he said. 6

So that would be about 7: 00 0' clock, or what time

7 would you guess that was? 8

It was 5:00 or 5:30, before dark.

Now you satd in your affidavit in the bottom

10 sentence that he was an old friend, but you didn't 11 associate with him because he was an alcoholic and drug

12 user; is that correct? 13

(No response)

Well, let's break that up.

Is Hank an old friend

15 of yours? 16

Yes, he is.

And by old, I guess you mean you've known him for a

18 long time? 19

Yes.

But it says here that you did not associate with

21 him because he's an alcoholic and drug user; is that

22 correct? 23

No, ma'am.

(Inaudible) .

I consider myself

24 (inaudible a preaching alcoholic (inaudible) words

25 (inaudible) . BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

262

EVIDENTIARY HEARING, VOL. II 11-17-05 When you say --

(Inaudible) I did not allow myself to be around

3 him. 4

(By Ms. Hayes) Okay, and why is that? Is that

5 because you had had some trouble in the past? A

No trouble. I was a long term alcoholic

7 (inaudible) . 8 Q Now, when you say here that he's an alcoholic, 9 how what do you know of his alcohol and drug use? MR. OWEN: Obj ection, Your Honor. Any

11 questions about drug use are outside the scope of direct. She testified that she was his sponsor in 12

AA,

13 so testimony about his alcohol use is before the court ~ 14 Otherwi se, we didn' t go into anything about Mr.

15 Skinner's prior drug use. THE COURT: Overruled.

16 17

(By Ms. Hayes) On this statement here that you

1l' didn' t associate with him because he was an alcoholic

19 and drug user, I just wanted you to explain what rlid you .

2 a

mean?

Oh, just one thing he had told me --

Had you been around him when he was using drugs or

What do you know about his alcohol and drug use?

23 alcohol? 24

Not very much, no.

Now you testified yesterday, didn't you, that you

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. II 11-17-05

263

1 were his AA sponsor; is that correct? 2

Yes, ma' am.

And you were also Twila Busby's AA sponsor too?

Yes, ma' am.

How about Connie Skinner's as well?

Yes, ma'am.

And Connie Skinner used to be married to Hank

8 Skinner; is that correct? 9

Yes, ma'am.

And now she's actually Connie Neighbors; is that

11 right? Connie Neighbors (inaudible).

( Inaudible)

Now you just made a comment about one of the

14 reasons you wouldn' t want Skinner to necessarily be

15 around is because you also had had problems, or long 16 term problems with drugs and alcohol yourself; is that

17 correct? 18

Yes, ma' am.

19 Q Did you - - what kind of drugs did you take?

20 A Not drugs, just most ly alcohol and Heroin and 21 Cocaine, speed balls and crystal meth (inaudible). 22

What about prescription drugs? Did you abuse

23 prescription drugs, Percodan or

Dilaudid or (inaudibie)?

No.

From your own experience now, from what you know

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

264

EVIDENTIARY HEARING, VOL. II 11-17-05

1 about people who use drugs, would you agree that most 2 drug users are going to want to try to get the strongest

3 drugs that they can buy?

MR. OWEN: Objection, Your Honor.

No basis

5 shown that this witness has any expertise in that area. MS. HAYES:

I just asked her about from what

7 she knows from her own experience.

THE COURT: Overruled.

8 9

(By Ms. Hayes)

So, in general, most of the drug

10 users are usually wanting the strongest drug that they 11 can find. Wouldn't that be a true statement? 12

No, ma'am.

Okay, why not?

Well, I don' t know that the strength has anything

the feeling.

15 to do with it, as to the effect of

And some people might just have a favorite drug.

17 Wouldn't that be a fair statement? r ,.

113\

Yes, ma' am .

In your experience have you ever encountered

persons who have maybe falsely told doctors or medical

21 personnel that they need -22

MR. OWEN:

Obj ection again, Your Honor.

23 That's outside the scope of direct. There's nothing in 24 the direct testimony on that subj ect . It's also

25 irrelevant. BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. II 11-17-05

265

1 THE COURT: It does sound like we're getting

2 outside the scope of direct. I'll sustain the 3 objection. MS. HAYES:

I'll tie it back in through

5 another line. THE COURT: All right.

(By Ms. Hayes)

i'd like for you to look at your

8 affidavit again on Page 2. At the very top, Ă&#x;When I 9 told him to leave he said that he had been shot and

10 pleaded with me to help. 11 Is that correct? 11

Yes, ma'am.

And

then you turned on the porch light and opened

13 the front door so that you coulq see him, so you

14 actually opened the door to Skinner; is that correct? 15

Yes, ma' am.

And your statement goes on about that he had Ua lot

17 of blood on himll; is that a good description of what 18 Skinner looked like? 19

Yes, ma'am.

And you're not changing that statement, are you?

No, ma'am.

It says also on that affidavit, Page 2, III decided

23 to help him because I felt sorry for him. II Is that 24 still a true statement? 25

Yes, ma'am.

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO,TX. 972-596-9442

266

EVIDENTIARY HEARING, VOL. II 11-17-05 1

Are you saying that you were okay with letting

2 Skinner in the house, even though he's out in the yard,

3 apparently covered in blood? 4

Yes, ma'am.

When you saw him cov.ered in blood, did you have any

6 urge to call the police, or try to find out what was

7 going on? 8

At that moment, no.

How about later how long was Mr. Skinner with

10 you on that evening, or those early morning hours? 11

Oh, approximately three and a half hours.

At any point in the three and a half hour period,

13 did you have the urge to call the police? 14

remember when it was.

One time I was going

to call 9 -1-1.

I don't

I dialed one number and hung up

16 the phone. 17 (/./

And why were you going to cal 1 9 - 1 - 1 ?

I don't even remember at this time.

I know I '.

19 didn' t feel threatened by him or I wouldn't (inaudible) 20

I know that I dialed one number and I whispered

21 daughter's name into the number. 22

Did you actually, at some point that evening, tell

23 Jessica that if you needed her to call the police that 24 she should call 9 -1-1? 25

Yes, ma' am .

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. II 11-17-05 1

267

Now yesterday you were asked about - -you said that

2 Of f i cer Kat ie Gerhardt had asked you - - let me back up.

3 You testified yesterday that you and Mr. 4 Skinner were sitting at the table. Which table were you

5 referring to? 6

At my dining room table.

And how were you - - you were looking inside the

8 trailer or outside the trailer? What was your view? 9

Inside the trailer.

And what was his view? Was he on the same side or

11 opposite side? 12

He was at the end of the table.

Did he have a view to the outside where he was

14 sitting? 15

No, he was right beh~nd me ~

And as you remember yesterday i you said something

17 about Officer Gerhardt asked you if you were close to 18 the door, why didn't you just get up and run out. 19 Remember that? 20

Yes, ma' am.

And what was your answer? Do you remember?

I1where in the hell would I go? I have two babies

23 in this house. 11 24

What did you mean by that?

Where would I leave them?

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

268

EVIDENTIARY HEARING, VOL. II 11-17-05 1

Well, were you afraid to leave your children there

2 in thetraĂŹler with Skinner? What do you mean?

3 A No, I didn' t leave my children alone wi th anybody. 4 Q So it wasn't anything about him in particular, was 5 it, on that night?

6 A As far as me afraid he might hurt my children, no. 7 Q So even though he was covered in blood, you don't 8 have any problem with him being there at the house with

9 the kids, right? 10

What do you mean?

With the kids ~ You didn't have any problem with

12 him being in the house with the kids with him covered in 13 blood? 14

No.

After you decided to help Skinner, it says here --

16 okay, we're about the fourth line down on the affidavit, 17

Page 2.

"I decided to help him because

I felt sorry for

l./ 1'ĂĄ him, n and that's still a true story, a true statement?

Yes, ma' am.

It says here that you went back into the house and /

21 put your dog in the bedroom with the children. What 22 kind of dog did you have? 23

180 pound Rottweiler.

One dog or more than one dog? Just one?

Just one.

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. I I 11-17 - 0 5

269

Is your Rottweiler - - they're often used for

protect ion. Did you

wi th the children?

why did you put him in the room

Because she was raised as a protector. She was a

5 good protector and in the house she was vicious. 6

Now it says here that you had the dog in the

7 bedroom, you closed the door, and you went outside 8

again.

"Hank was still standing in the front yard." Is

9 that correct? 10

Yes, ma'am.

Now when you used the phrase - - you said "still

12 standing. " So would it be true to say that when you 13 left him in the front yard, he was standing in the front

14 yard? 15

Yes, ma' am.

And when you came

back he was still standing in the

17 front yard? 18

Yes, ma' am.

Was there anyone outside with Skinner or was he

20 there by himself? 21

He was alone.

So he wasn't having to hold onto anyone for

23 support, or to help him stand up; would that be correct? 24

To anyone, no.

On your affidavit at Page 2 it says that you

BETTY TATE. 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

270

EVIDENTIARY HEARING, VOL. II 11-17-05

1 invited him into the house. Do you remember your 2 daughter, Jessica - - does she go by Jessica or by 3

She goes by Jessica.

Well, your daughter, Jessica, made a statement to

5 the police, didn't she, in the early morning hours after

6 Skinner was arrested? 7

Yes, ma'am.

Do you remember her telling the police --

MR. OWEN: Objection, calls for hearsay.

MS. HAYES: It's a statement against - - what

11 this .is, is I wanted to disprove the earlier comment

12 about him being let in, invited, completely stupor. 13

MR. OWEN: It's still hearsay, Your Honor.

THE COURT: It does sound like hearsay.

MS. HAYES: Okay, let me try it another way.

(By Ms. Hayes)

Okay, I'm still with your

17 afÂŁidavit, on Rage 2. After you invited Skinner to come , (f 1~ in, "He stumbled and fell over backwards when he tried

19 to climb up the porch stairs;" is that correct, and then 20

you caught him or helped him to get up.

on my arm, as he walked into the house."

"He had to lean Is that still

2 2 correct? 23

Yes, ma'am.

Now would you describe what you mean he's leaning

25 on you? Is he holding on your arm, did he have his arm PLANO, TX. 972-596-9442 BETTY TATE, 3101 TOWNBLUFF DR. #923,

EVIDENTIARY HEARING, VOL. II 11-17-05

271

1 all the way over you? How much support

2 A I was holding my hand around him.

3 Q So you were around him, holding him to help hold 4 him up. If you hadn' t been helping him would he have

5 fallen over? 6

In my opinion, yes.

You testified just a second ago when you went back

8 out front to see him, he's still just standing in the

9 yard, right? 10

Yes, ma'am.

So sometimes he can stand on his own apparently

12 wi thout your help and other times he needed you to help

13 him; would that be correct? 14 A No, ma' am.

15 Q Okay, why not?

16 A I believe (inaudible) the question was asked me 17 earlier if he did have to have someone out there to lean

no , Ă&#x; notso~eone. He

18 on as he's standing up and I said II

19 was leaning against the side of the trailer. 20

Okay.

So when you actually said he was still

21 st anding, he was leaning I guess against the trai ler; 22 would that be more correct? 23

What I mean by standing is he was not laying down

24 anymore. 25

So he's not laying flat but he's still out there.

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

272

EVIDENTIARY HEARING, VOL. II 11-17-05

Okay.

So is it your testimony then that Skinner really

2 can' t get around by himself, he's going to need some

3 help; is that correct? MR. OWEN: Your Honor, may I ask if counsel

5 would refer to Mr. Skinner as "Mr. Skinner" and not 6 II Skinner?" THE COURT: Refer to petitioner as Mr.

8 Skinner. MS. HAYES: Okay, I'll try.

I f I do it by

10 accident, I'm not intending anything by it. 11

(By Ms. Hayes)

If you'd look at your affidavit on

12 Page 6, you were asked yesterday about Mr. Skinner

13 having trouble walking to the bathroom by himself, and in fact, it's the first full paragraph on Page 6.

15 falsely testified that Hank walked to the bathroom by

16 himself when I went to make a telephone call, because I 17 was still afraid to admit that I did anything wrong." ,

1f Is that still true, that that actually was a false'

19 statement? ./

That is a true statement.

Could he not keep his balance?

No, ma'am.

Not at all?

Not really.

Now before Mr~ Skinner came to your house, where

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. II 11-17-05

273

1 was he? 2

I didn't have a clue.

3 Q You testified earlier that you heard ~lwin Caler 4 tell you that he was passed out on the couch, and that

5 would be at Twila' shouse, right? 6

Yes, ma' am.

So to your knowledge he's still at the house

8 apparently over there where Twila lived? 9

Yes, ma' am. But I can i t say for certain that's

10 where he was (inaudible). Mr. Skinner get to your house?

Well, how did

I cannot answer that.

Did he have a car?

(Inaudible) .

Did you see a taxi drop him oÂŁf?

I was in the bed asleep.

Now you testified - - you said three hours that he

18 was with you, three, three and a half hO,urs? 19

Yes, ma' am.

Now at one point yesterday - - strike that.

When Mr. Skinner was arrested at your house,

22 before he was arrested, do you remember getting a 23 telephone call from the police? 24

Yes, ma'am.

And who was that that called you?

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. II 11-17-05

274

Kat ie Gerhardt.

And that would be Of f icer Kat ie Gerhardt with the

3 Pampa police Department, correct? 4

Yes, ma' am.

And do you remember Ms. Gerhardt, if she asked you

6 was Connie at your house? 7

Yes, ma' am..

And by that, that would mean Connie - - then Connie

9 Skinner, correct? 10

Yes, ma' am.

Are you friends - - or were you friends with Connie

12 Skinner? MR. OWEN: Your Honor, I obj ect . This is

14 outside the scope of direct. THE COURT: Overruled.

15 16

sponsor i right?

A Yes, ma' am.

(By Ms. Hayes) And in fact, you were her AA

Did you ever talk wi th Connie about what all

20 happened on that night when her husband was arrested and

21 al l? 22

What all happened, no. Just what little bit that I

23 remembered (inaudible) police department that morning; 24

So you hadn't talked with her about what you knew

25 about him being at your house, right? BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-59~-9442

275

EVIDENTIARY HEARING, VOL. II 11-17-05 1

Yes, ma'am.

When the police called you where were you and Mr.

3 Skinner right before the - - before the arrest happened, "

4 when the call came, where were you and Mr. Skinner

5 located? 6

At the dining room table.

Is the telephone right beside you in the dining

8 room? 9

No, ma' am.

Where is the telephone located?

The back bedroom.

you had to leave the living room to go back to

13 answer the phone; is that correct? 14

Yes, ma' am.

So when you went to get the phone was Skinner still

16 sitting at the table? 17

No, ma'am..

Where was he by then?

He was headed for my son's bedroom.

And so when he - - would this be correct, you go to

21 answer the phone, he gets up and heads back towards the 22 bedroom? 23

He was just approaching my son's bedroom.

You didn' t walk him down to the bedroom, did you?

NO, ma'am.

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX~972-596-9442

EVIDENTIARY HEARING, VOL. II 11-17-05 1

276

So he managed to get down to the bedroom by

2 himself, correct? 3

Yes, ma'am.

And when he was arrested, where was he located?

In the bedroom.

Was he in the closet in the bedroom?

That's what the police department said but I was

8 not in there. 9

But you didn't see him in the closet?

No, ma'am.

In your

having II a lot of blood II on him.

affidavit , Page 2, you talked about Skinner

Could you describe for

13 us what he looked like? It wasn' t solid blood, was it? 14 Were there areas that had more blood than not? How

15 would you describe that? 16

It was blood from here, down and across.

When you said from here, you put your hands on your

Ă&#x;

1~ left shoulder and went all the way across your chest? 19

Yes, ma' am.

And down towards your top right hip. Where does i t /

21 go past the top right hip? 22

Down to the knees.

I f the reporter would note, she

24 put hand on left shoulder ,all the way across the body 25 and down the right leg to maybe the knee area now. BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

277

EVIDENTIARY HEARING, VOL. 1111-17-05

1 A I'm not sure if it was allover but there was like 2 this (inaudible). THE COURT: Actual ly we don't have a reporter,

4 we have a tape recording, so your comments (inaudible). 5

(By Ms. Hayes)

Do you remember Mr. Skinner telling

6 you how he got hurt? 7

There was a whole lot of stories.

(Inaudible) .

8 Q Okay. Do you remember where on his body that he 9 told you he had been hurt? Do you remember him telling

10 you he got shot in the gut? 11

Yes, m a ' am.

How about stabbed in the shoulder?

I don' t remember him saying he was stabbed in the

14 shoulder. 15

Stabbed in the arm maybe. or in the chest, any of

16 those areas? 17

Yeah.

I remember him saying something about he had

18 been stabbed in the chest. 19

But he hadn' t been shot in the gut, had he?

No, ma' am.

Or stabbed in the shoulder?

No, ma' am.

Or stabbed in the arm?

No, ma'am.

In fact, of all the places he told you he had

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972 -596 -9442

EVIDENTIARY HEARING, VOL. II 11-17-05

278

1 injuries, was there really only one place where you

2 located an injury? 3

Yes, ma'am.

And where was that?

On the palm of his right hand.

When you saw that he had blood allover him, or a

7 lot of blood on him, did you want to - - did you think

8 maybe something had happened to Twila? 9

No.

So if your police statement said that you had told

11 Mr. Skinner that you wanted to go call Twila and find 12 out if she was okay, and find out what was going on over

13 there, would that be false? I never thought she wasn't okay, so that was false. A 14 15

You never had any urge to go call Twila Busby and

16 find out what might have happened? 17

Yes, ma' am.

If she was alright and I just wanted

Ă&#x;

1l' to find out what had happened and have her come pick him

19 up. 20

But even if he's got blood allover him with just

21 the one cut, you weren't worried .at all about Twila 22 Busby, were you? 23

No.

You testified yesterday that one of the lies that

25 you said earlier was that Mr. Skinner hadn't -- well, BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. I I 11-17 - 05

279

1 that Mr. Skinner had told you not to call anyone, but

2 that he hadn't threatened to kill you if you called

3 anyone. So is it true that Mr. Skinner told you not to 4 call anyone? 5

He told me I couldn' t call.

Did he tell you why?

No.

Now, he's got a hand injury. Would you say it was

9 a serious hand injury or a simple hand injury with the

10 cut to the hand? 11

It was pretty severe.

Do you have medical training?

Some.

14 Q Do you remember in your police statement making a 15 comment about wanting to call your friend Ella to see if suture Mr. skinner's hand?

16 she could come over and

Part of that question is incorrect and part, is not.

How so?

19 A I recall asking if I should call Ella so she could 20 get a hold of Mary, her nurse friend, she could bring. 21 some sutures. 22

So El la's not the nurse, it would be Mary?

Yes, Ella's friend.

Okay, Mr. Skinner has a serious inj ury to his hand

25 and you're oÂŁfering to call

someone to get medical help,

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-944~

280

EVIDENTIARY HEARING, VOL. II 11-17-05

1 and are you saying that he still wouldn' t let you call 2 anyone? 3

Yes, ma'am.

There was some testimony about instead of going to

5 seek medical help that Mr. Skinner, or someone, was

6 going to try to sew up his hand. Was that Mr. Skinner 7 trying to do that or was that you trying to do that? 8

It was me.

Now, if that was -- if you had testified in your

10 police statement and at trial that actually he had been 11 sewing up his hand, then that would be a false 12 statement, right? If you testified in your statement, 13 now you're saying that would be a lie. You said he

14 sewed it up, really it's you? 15

Yes, ma'am.

Is there any reason -- I don' t believe I saw that

in the affidavit.

Is there a reason that that detail

1~ was not put in the affidavit as being listed as onci of

19 the lies? ./

I told the truth (inaudible).

Now, one of the lies -- well, the wound we were

22 just talking about, that Mr. Skinner

told you not to

23 call anyone, but he didn't threaten to kill you if you

24 called someone? 25

No, ma' am, (inaudible).

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. II 11-17-05 1

281

In the early morning hours after Mr. Skinner was

2 arrested, didn't you tell a neighbor that Skinner had 3 threatened -- Mr. Skinner had threatened to kill you if

4 you called someone? 5

No, ma' am.

Do you remember some of your neighbors coming out

7 at the time when Mr. Skinner was arrested? 8

Yes, ma' am.

So there were people in the area that saw him being

10 taken out of the house; would that be correct? 11

I suppose so.

As far as Mr. Skinner's condition, or he was -- how

13 he seemed in those hours that he was at your house, was 14 he passive, was he peaceful? Would that be a 15 description of how he acted? 16

No.

How did he act? Did he seem nervOUS, was he upset,

18 or I mean - - describe how he generally acted. 19

Pretty much irrational, real nervous, he was j ust

20 pretty much out of it from the best I could tell. 21 (Inaudible) . 22 Q And when you say

out of it, do you mean just

23 physically he's out of it, he can't do things that he' 24 could normally do physically, or how do you mean when

25 you say out of it? BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

282

EVIDENTIARY HEARING, VOL. II 11-17-05

1 A Pretty messed up on alcohol and (inaudible).. 2 Q Is he able to talk with you?

3 A Yes, ma'am, but I didn't 4 Q And could you understand what he was talking 5 even if it might not make sense, could you understand

6 what he was talking to you about? He was slurring his words, some and

8 some not. 9

Did he ever

when he was at your house, did he

10 ever have - - did he ever tell you he was having trouble

11 breathing, or did he appear to have trouble breathing? 12

I don't remember that he was having trouble

13 breathing. 14

Did he have any seizure when he was at your house?

No, ma' am.

How about ~ - could you tell if it looked like maybe

17 his face or his lips were swollen? Did you see anything ,

1Ă¨t like that? l;/

19 20

A Q

No, ma'am. How about hives, big red hives or big

blotches on

21 him. Did he appear to have anything like that? 22

No, ma'am.

How about itching? Was he scratching a lot? Could

24 you see anything like that?

25 A BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

283

EVIDENTIARY HEARING, VOL. II 11-17-05

said that one 1 Q Okay, in your affidavit at Page 3 you

2 of the lies - - and this is the third paragraph in, II I

3 falsely claimed in my written statement - -," oh, wait,

4 I'm sorry, look at the next paragraph down, the very

statement

5 bottom one, "I falsely claimed in my written

6 that I believed that Hank was capable of killing me

7 because of his intoxicated condition. The truth is that 8 he was much too drunk or high on drugs to physically

9 carry out such a threat." Is that true? Do you think 1 0 he was too messed up to be able to have killed you? 11

Yes, ma'am.

Your next sentence in that paragraph says, "I know

13 what Hank is capable of doing when he's intoxicated because I saw him in that condition many times. Ă&#x; Is 14

15 that statement true? As far as knowing what he was capable of doing,

that probably is not true.

drunk.

I had seen him when he was

But you say - - have you seen him a lot of times, 'or

2 a a few times, or how many times have you seen him when

21 he's been messed up on drugs or alcohol? 22

A number of times (inaudible). I want to

talk a little bit more about that

24 statement. You know what he's capable of doing because

25 you've seen him in that condition many times. Are you BETTY TATE,

3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

284

EVIDENTIARY HEARING, VOL. II 11-17-05

1 suggesting that Mr. Skinner's behavior has always been on drugs and alcohol, or what do

2 the same when he's been

3 you mean by that? I really don' t know what I meant.

(Inaudible) .

5 It's been a long time. 6

Now you testified earlier today that Elwin, Twila's

7 oldest son, told you that Mr. Skinner was passed out on

8 the couch asleep and they couldn't wake him up. Was

9 that true? 10

Yes, ma' am..

Is that typical behavior when you've been around

12 Mr. Skinner, for him to be passed out unconscious? 13

No, ma'am.

What is his typical behavior when he's on drugs and

15 alcohol? 16

He goes to sleep, falling down, knocking stuff ove.r

17 (inaudible) . i'

Isn't it true, if you know, that Mr. Skinner has

19 been arrested a number of times, like for driving under 20

the influence, for DWI?

I have no knowledge of that.

How was Twila killed?

I do not know.

What injuries did she have, if you know?

I do not know.

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

285

EVIDENTIARY HEARING, VOL. II 11-17-05 1

How about Elwin Caler, the older son? What kind of

2 injuries did he have? 3

From my personal knowledge i I don' t know.

Do you know where his injuries were, what part of

5 the body he had been inj ured on? 6

From my personal knowledge, I do not know.

How about Randy Busby, the younger son, do you know

8 what manner - - was he stabbed? Do you remember that, or

9 do you know? 10

From my own personal knowledge, no.

And so would it be true that you don' t know where

12 the actual inj uries are that Randy Busby sustained

13 ei ther. Would that be correct? Was he stabbed here and us exactly 14 here- - you don't know? You couldn't tell

15 where he was stabbed? 16

Ma' am, I wasn't there and I do not know.

Okay. Well then, let's look at the next sentence

on that affidavit at the bottom of Page 3.

"When he

19 arri ved at my house, in my opinion he was too

20 intoxicated to strangle Twila Busby until her neck 21 broke, repeatedly hit her in the head with an axe, and

22 precisely stab her ~wo sons to death." 23 Okay, what do you mean about those commentsi

24 precisely stab her two sons to death? 25

From what I had heard at trial, that's my

whole

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. II 11-17-05 1

knowledge.

286

Thi s was what I had heard.

I mean you can't tell if he has an inj ury here and

3 maybe an inj ury on his leg. What would it mea? - - why 4 did you use the word IIprecisely? 11 That's what I want to 5

get at.

Because that's what happened to them.

And isn't that actually what had been said to you

Why IIprecise? II

8 by Mr. Skinner's wri t at torney, Steve Losch, that the 9

wounds were IIprecise? 11

Isn't that something Mr. Losch

10 had imparted on you? 11

I don' t remember who told me. . .

If you'd look at your affidavit, Page 4, one of the

13 lies you were asked about yesterday was about that 14

Skinner took his shirt off.

It's the very top

paragraph, Page 4. "I also lied in my written statement 16 about two small details, because I did not want the

17 pol ice to bel ieve that I voluntarily did anything for 1~(

Hank. II That was true, you didn't want the police to

19 believe you helped him out at all; is that correct? /

Yes, ma'am.

So one of the lies is,

22 shirt off and hung it over a

II I said that Hank took his chair in my living room.Ă&#x;

23 So that is a lie, is that correct? ĂŹ

Yes, ma'am.

Now yesterday when you were asked about that, did

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. 1111-17-05

287

1 you say that he had unsnapped his shirt? 2

I believe I said I didn't know whether I knew he

3 had unsnapped it partly or if I unsnapped it

4 (inaudible) . 5

So what you said yesterday, if I remember right,

6 IIMr. Skinner had unsnapped it but I helped take it off

7 because of hi shand. " 8

Yes.

So you helped him take it off. What did you mean

10 by that, IIbecause of his hand? Ă&#x; 11

Because his hand was cut.

From what you observed of Mr. Skinner's hand

13 inj ury, if he didn' t have that hand inj ury, or it was 14 less severe, do you think he could have at least taken 15 his shirt off without your help? 16

I'm sure he could have.

Okay, your

affidavit, Page 6, top full paragraph,

18 II I falsely testified that Hank walked to the bathroom by

19 himself when I went to make a telephonecaii, bedause 'I 20 was still afraid to admit that I did anything to help 11 Is that true, that -- you had testified he went

21 him.

22 to the bathroom by himself when you went to make a call? 23

Yes, ma'am.

And the truth is i according to your testimony. the

25 truth is, II I had to help Hank walk from the kitchen to BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

288

EVIDENTIARY HEARING, VOL. I I 11 - 17- 05

1 the bathroom before I went to make the call because he 2 was so intoxicated he could not keep his balance. II Is

3 that correct? 4

Yes, ma'am.

Now you just testified earlier today though that at your son's

6 least he was able to make it down the hall to

7 room; you didn' t help him get down there; isn' t that

8 true? 9

No, ma'am.

So did you help him go to

No, ma' am.

Oh, I' m sorry~ Let me rephrase that then. He at

your son's

bedroom?

It' s not a ha 1 1 .

13 least was able to get from the living room to your son's 14 room without your help; isn't that true? 15

Yes, ma' am.

And what kind of distance are we talking there?

Maybe six foot.

But you didn't have to help him to make that

1l:

19 distance; is that correct? 20

Yes, ma' am.

Now the first sentence on that lie about going

22 to - - that you had to help him to the bathroom, it says that he walked to the bathroom

23 24 the bathroom

you said 11 he walked' to

when I went to make a telephone call. Ă&#x;

25 Didn't you testify today also that you tried to make a BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. II 11-17-05

289

1 telephone call and you started to call 9-1-1; isn' t that 2 correct? 3

Yes, ma'am.

But hadn' t Mr. Skinner told you not to make any

5 phone calls?

Yes, ma'am.

So you didn't follow - - at least at one point you

8 went to go make a phone c.all; isn' t that correct? 9

Yes, ma' am.

So it didn't matter to you that he had instructed

11 you not to call someone, you were willing to go ahead 12 and make a phone call on your own, weren' t you? 13

Yes, ma'am.

14 Q In the three and a half hours that you're with Mr. 15 Skinner, at any point in all the stories that he told 16 you, and all the things that he might have been telling 17 you about what happened that night, did he ever tell you 18 that Twila had been at a party over at Howard Mitchell's

19 house? 20

Did he tell me, no. MS. HAYES:

Pass the witness.

22 23

24 25

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. II 11-17-05

290

RE-DIRECT EXAMINATION

1 2

3 BY MR. OWEN: 4

Ms. Reed, I just have one question. You testified

5 yesterday that after you left the police station on the 6 morning of January 1st, you went - - I understood your

7 testimony that you went to your home to collect some 8 things and then elsewhere to stay; is that correct? 9

(Inaudible) . What time was i t- - and you got those things from

11 your house where you live. What time were you there? 12

(inaudible) .

MR. OWEN: No further

questions , Your Honor.

THE COURT: I s she excused or not?

MR. OWEN: We'll excuse her, Your Honor.

MS. HAYES: Excused.

THE COURT: All right, you're free to go.

MR. ROBINSON: Your Honor, we call Dr. wÃ¯lliam

19 Lowry. 20

THE COURT: Dr. Lowry. State your name and

2l spell your last name. 22

THE WITNESS: William P. Lowry, L-o-w-r-y.

23 24 25

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9441

291

EVIDENTIARY HEARING, VOL. II 11-17-05

DR. WILLIAM LOWRY, Called bv Petitioner (Sworn)

1 2

DIRECT EXAMINATION

5 BY MR. ROBINSON:

6 Q Good morning, Dr. Lowry. Dr. Lowry, are you the 7 same Dr. Lowry that testified as a witness in Mr. 8 Skinner'.s capital murder trial in 1995? 9

Yes, sir, I am.

And were you at that time accepted to testify as an

11 expert witness on toxicology at the trial? 12

Yes, sir, I was. MR. ROB INSON:

I'm

sorry, Your Honor,

just

14 give me a minute here... 15

(By Mr. Robinson)

16 a document that's been marked as

Dr. Lowry, I'm going to hand you Plaintiff' s Exhibit No.

17 18, and ask you whether that is your curriculum vitae? 18

Yes, it is.

And is that document a current statement of your

20 background and experience in the field of toxicology? 21

Yes, it is.

Now, what is your present occupat ion?

I'm a consul t ing toxicologi st.

Do you have a private consulting practice?

Yes.

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

292

EVIDENTIARY HEARING, VOL. II 11-17-05 1

Where is that located?

It's in Grand Prairie, Texas. That's the

3 Dallas/Fort Worth area. 4

Were you also a consulting toxicologist at the time

5 of the capital murder trial in ' 95? 6

Yes, sir.

And have you continuously maintained that

8 toxicology practice between' 95 and 2005? 9

Yes, sir.

Has your practice varied significantly over that

11 ten year period from what it was at the time of the

12 trial? 13

No, sir.

Do you do any teaching?

Yes, I do. Ever since I left the faculty at the

1~ University of Texas Southwestern Medical School in 1995

17 I've been teaching two graduate level courses, upon It

the University of Texas at Arlington~

1~ invitation at

What department is that in?

That's the department of biology presently.

I twas .....

21 in through civil engineering, now it's in biology. 22

Did I understand you correctly that you were on the'

23 faculty at the University of Texas Arlington at the time

24 of the trial? 25

Yes, sir.

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. II 11-17-05

293

In your --

That was the adjunct appointment, not the faculty

3 appointment. 4

I think my question really goes to whether your

5 teaching assignments at the University of Texas have

6 changed significantly since the time of the trial? 7

No, it's still the same courses.

the updates and 8 Q Do you have to keep current on

9 developments in the field of toxicology? 10

Continuously.

In teaching at the University of Texas at

12 Arlington, do you have to make yourself aware of and be

13 current on the current literature on the effects of 14 medications? 15

Yes.

And do those medications include medications in the

17 opiate family? 18

Yes, it would.

And in your private practice do you also deal with

20 issues relating to the effects of medication? 21

Yes, I do.

Including medications in the opiate family?

That is correct.

All right, Dr. Lowry, prior to your coming here to

25 testify today, did I ask you to review the testimony you BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. II 11-17-05

294

1 gave at the trial in 1995? 2

Yes.

Just by way of background, and I don' t want to

4 spend a lot of time on this, but just to give the court 5 some background here, could you summarize for the court

6 what your testimony was at the capital murder trial in 7 terms of what you opined as to Mr. Skinner's condi t ion

8 and why he had that condition at the time of the

9 murders? 10

I testified that based upon laboratory reports, and

11 blood taken at 5:30 a.m., and then knowing elimination 12 rates, half lifes and so forth, at midnight Mr. Skinner

13 had a blood alcohol of approximately .21 percent, and 14 blood Codeine concentration of 0.44 milligrams per

15 liter. 16

Can you give the court an idea of how .21 per cent

17 of blood alcohol content compares to the legal ,,

1~ definition of intoxication for driving purposes in 19 Texas? 20

For driving purposes the legal definition is 0.08

21 percent. This is far above that. Roughly three and a half times - - excuse me, 23 roughly two and a half times?

Something like that, yes.

And how about can you give us a frame of reference

BETTY TATE. 3101 TOWNBLUFF DR. #923, PLANO,TX. 972-596-9442

295

EVIDENTIARY HEARING, VOL. II 11-17-05

1 of what it means .to have .44 milligrams per liter of

2 Codeine in the blood stream? How would that compare, therapeutic dose of Codeine?

3 for example, to a normal

Well, if you were taking say a 60 milligram dose,

it would be about

and that's a large dose.

It would

6 be about three and a half times the - - that's at peak

7 levels, three and a half times of doses. Now, if this 8 was not peak level, it might be more.

9 Q And what was your opinion at trial as to the 10 effects that .21 percent alcohol and .44 milligrams per 11 li ter of Codeine had on Mr. Skinner in terms of his

12 condition? 13

Well, he had been in a very - - alcohol alone, in a

14 stuporous state, mental confusion, disorientation, he had to have 15 disturbances in vision, dizziness, and

16 decreased pain sense~ impaired balance, I believe 17 staggering gait, and slurred speech. 18 Q And did you give an opinion as to whether or not 19 Mr. Skinner in that state would have been in any 20 condition to go commit murders? 21

Yes, I did give an opinion.

And that opinion was what?

That it would be almost impossible to do such a

24 thing to the three individuals. 25

All right. Now, Dr. Lowry, at the time of your

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

296

EVIDENTIARY HEARING, VOL. II 11-17-05

1 trial testimony, had you reviewed a statement that had

2 been given by Andrea Reed to the -May I back up one more? I was testifying just then

4 about just strictly alcohol. 5

Oh, I'm sorry..

Alcohol and Codeine - - bear in mind he did have a

7 large amount of Codeine on board 8

I'm sorry, I didn't mean to shortcut this.

This alcohol and Codeine do have a synergistic

10 effect, working together, greater than additive, so this

11 enhances my opinion about his ability to commit the 12 murders. 13

Okay, and that's what you testified to at trial?

Yes, sir.

You testified about the synergistic effect?

Tha t' s correct..

And let's then put the finishing touch on this.

l~ What was your opinion then as to his ability to have

1 9 co mm it t e d the s e crime s, g i ve nth e comb i n a t ion 0 f the 20

effect of the

alcohol and the Codeine and synergistic

21 two? 22

It's almost virtually impossible for him to have

23 carried - - I couldn't see how any person could do such a

24 thing physically. 25

drawn out now All right- Have I satisfactorily

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. II 11-17~05

297

1 what your opinion was at trial? 2

Yes., sir.

trial had you reviewed the

3 Q At the time of the

4 statement given to the police by Andrea Reed? 5

Yes.

I'm going to hand you, Dr. Lowry, what has been

7 marked as Plaintiff's Exhibit 2, and ask you if you

8 recognize that as being the statement of Andrea Reed

9 that you had reviewed before trial?

10 A Yes, it is. 11 Q And did Andrea Reed's - - first, let me ask you, you 12 were excluded from the courtroom during the trial of 13 that case, were you not? 14

Yes.

Except when you testified?

That is correct.

So you did not hear the testimony of Andrea Reed at

18 the trial? 19

NO, I did not.

Did Andrea Reed's statement, Plaintiff' s Exhib~t -2,

21 figure into your trial testimony in any way? 22

It did on cross examinat ion~

And how so?

Well, I was cross examined regarding the statements

25 that she made, and as it was, basically a fact in BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. II 11-17-05

298

1 evidence, the statements in evidence, I had to give some

2 consideration so basically I'll have to consider this 3 but I don't see how it worked, how he carried it out, 4 but if she says that's true, then he mus t have done it;

5 must have carried out the movements in the statements

6 that she said he did. 7

All right. Were you asked at trial, for example

8 if you remember, were you asked at trial whether Mr. 9 Skinner - - whether you were surprised at whether Mr.

10 Skinner was able to remove his shirt and lay it on the

11 chair? 12

I believe - - yes, I was asked that and I was

13 surprised. 14

And were you asked at trial if you remember whether

15 you were surprised that Mr. Skinner was in - - had presence of mind to ask Andrea Reed to clean

16 sufficient

17 up his hand and sew it up? (1

1 l.

Very much surpri sed, yes.

And were you asked at trial if he had the presence

20 of mind to threaten to kill Andrea Reed if she tried to ...... 21 call anybody? 22

Again, I was very much surprised.

So were these questions - - let me strike that.

24 Dr. Lowry, prior to your coming to testify 25 here today, did I ask you to review an affidavit that BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

299

EVIDENTIARY HEARING, VOL. II 11-17-05 1

had been prepared by Andrea Joyce Reed in 1997?

A Yes.

Q I'm handing you, Dr. Lowry, what has been marked as

Plaintiff's Exhibit 1 here and ask you if that is the

affidavit I asked you to review before coming to testify

today?

A Yes, it is.

Q Dr. Lowry, had you had the information that is in

Plaintiff's Exhibit 1 at the time you testified in the

trial in 1995, would that have meant any difference to

your opinion?

A Most definitely because it confirmed the fact that

it stated that -- I don't think he could have carried

out and he did not have the presence of mind or the

physical ability under the condition he was in to carry

out three murders.

Q I believe that Ms. Reed uses in her affidavit the

t,( 18

term II harmless drunkĂ&#x; to describe Skinner's condition,

l ,

and I believe she also used the term IImeaningless

gibberish. II Are these descriptive of someone who would

be in a stuporous state?

A Yes, it is.

Q Would the information that is contained in that

affidavit have bolstered your opinion that Mr. Skinner

could not have committed the murders?

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972~596-9442

300

EVIDENTIARY HEARING, VOL. II 11-17-05 1

Yes, as I've stated. right . Let me turn to a different subject, Dr.

All

3 Lowry. You test ified a few minutes ago that Mr. Skinner 4 had a Codeine level in his blood stream at the time of 5 the murders around midnight of .44 milligrams per liter,

6 three and a half times the therapeutic dose.

7 Let me ask you, what is Codeine? 8

Codeine

is one of the opiate alkaloids, along with

9 morphine, papaverine, thebaine. 10

Is it -- well, what is it typically prescribed for?

As a pain reliever primarily, and also has

12 anti-tussive (inaudible) properties to reduce cough. 13

Are some people allergic to Codeine?

Yes.

What are the symptoms of being allergic to Codeine?

Rash, swelling, I think you can have a lowering of

17 blood pressure, and bronchial restriction, maybe even an 1~ anaphylactic response. The type of allergic response to l,

19 this is the Type 1-B of hypersensitivity reaction.

20 Q Do people who are allergic to Codeine display the 21 same symptoms every time they might be exposed to it? 22

No, it again depends on the type of dosage the rash, he may get

23 point of entry of the dosage, may get a

24 an anaphylactic reaction, may have a drop in blood pressure. I've seen people with different types of 25 BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972~596-9442

EVIDENTIARY HEARING1 VOL. II 11-17-05

301

1 allergic responses (inaudible) being around it and have

2 different responses. My wife is one (inaudible). 3

If a person - - you earlier said that Codeine is in

4 the opiate family. Did I get that right? 5

Yes.

If a person is allergic to one opiate are they

7 likely to be allergic to others? A

The primary

allergies come from the opiate

9 alkaloids themselves, and for some reason Codeine is the

10 worse active opiate. people taking morphine, thebaine

to papaverine I would assume - - well,

11 or exposed

12 morphine, yesi it's been reported too, but I haven't

13 heard of allergic reactions to thebaine or papaverine. 14

Is Heroin an opiate?

It's a synthetic.

It's a diacetyl derivative of

16 morphine; it's a synthetic morphine derivative so 17 it 1 s - - as soon as it's hydrolyzed you have morphine,

18 and it can be - - mayor may not have an allergic

19 response. All of this is a mimicking effect triggeririg 20 mast cells in the body. 21

If a person is allergic to Codeine are they

22 necessarily allergic to Heroin? 23

Well, they may be allergic but apparently the

24 triggering of the mast cells comes from Codeine itself 1

25 which if you have Heroin and it hydrolyzes to morphine BETTY TATE, 3101 TOWNBLUFF DR. #9231 PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. II 11-17-05

302

1 and morphine then metabolizes to Codeine, then the 2 literature and clinical reports have shown that there 3 are less statistical response for allergic response to 4 morphine than there are to Codeine, strictly because of

5 differential in dosage. 6

If a person is suspected of being allergic to

7 Codeine, are there other products that are prescribed as

8 substitutes for Codeine? 9

Yes, there are synthetic narcotics.

Could you tell the court the names of some of

11 those? 12

Hydrocodone, Hydromorphone 1 or Codimal.

For Hydrocodone, could you tell us what some of the

14 brand names might be for Hydrocodone? 15

Vicodin, I believe Talwin.

There are some others

16 that are not quite well known as those two. 17

Now at the time you testified at triall you

1~ indicated that you were aware of Andrea Reed's

19 statement, correct? -

Yes.

And were you also made aware by Mr. Skinner's

22 original trial counsel - - were you made aware of other

23 police reports? 24

Yes, I was.

And I assume you were aware of the toxicology

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. II 11-17-05

303

i report that had been prepared by the state on Mr.

2 Skinner's blood alcohol and Codeine content? 3

Yes, that's where I got the numbers.

4 Q And were you provided various other materials and 5 information selected by counsel to review before trial?

6 A Yes. 7 Q Did counsel provide you with any medical records of

8 Mr. Skinner prior to trial?

9 A No. 10 Q And what you reviewed prior to trial, was there any 11 indication whatsoever that Mr. Skinner might be allergic 12 to Codeine? 13

No.

Now Dr. Lowry, prior to your coming here to testify

15 today, did I ask you to review some medical records? 16

Yes.

17 Q I hand you what has been marked as Plaintiff's 18 Exhibit 10 and ask you -- it's a three page document,

19 three pages of medical records, and ask you if those 20 were some of the medical records that I asked you to 21 review? 22

Yes, they are.

And I'm also going to hand you Plaintiff's Exhibit

24 11 and ask you if those medical records were also some 25 of the medical records I

asked you to review before

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

304

EVIDENTIARY HEARING, VOL. 1111-17 - 05

1 testifying?

2 A Yes, they are. 3 Q And now I'm going to give you Plaintiff 1 s Exhibit what appear to be a

4 12, which is a couple of pages of

5 prescription list for Mr. Skinner, and did I ask you to

6 review those before coming to testify? 7

Yes, you did.

Dr. Lowry, I'm going to show you a document that's

9 been marked as Plaintiff's Exhibit 151 which is an

a f f i da vi t 0 f Lor i B rim.

Prior to coming to testify

11 today did I ask you to review the affidavit of Lori 12 Brim? 13

Yes, you did.

Now Dr. Lowry, did you find in any of those

1S documents that I asked you to review and that I've just 16 shown you, any indication that Mr. Skinner might be 17 allergic to Codeine? r

l~r

The medical records indicate a self -reporting to Codeine. The pharmaceutical record does not

19 allergy

20 show prescriptions of Codeine. The affidavit of Lori 21 Brim states that she observed a reaction by Mr. Skinner

22 and called a -- one time when he took Codeine, called that he might be 23 the physician and the physician stated

24 having an allergic reaction to Codeine. 25

In Ms. Brim's affidavit does she -- she describes

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. II il-17-05

305

1 some symptoms that Mr. Skinner displayed that night,

2 correct? 3

That's correct.

Are any of those symptoms consistent with his

5 having been allergic to Codeine?

6 A Well, it describes his sleepiness and unable to 7 stumbling around and unable to

stand. Dizziness and

8 sleepiness is one major symptom - - if you have a drastic

9 drop in blood pressure, which could be - - and it would

10 enhance his speaking nonsense, being short of breath. 11 Possibly have fatigue, nausea, (inaudible), his 12 talking - - well, speaking nonsense, talking incoherently

13 would be somewhat consistent to _ a drastic reaction. 14

I neglected to hand you one other document that I

15 gave you prior to testifying. Respondent's Exhibit 38,

16 which is another set of medical records, and let me ask 17 you did I ask you to review that before you came to

18 testify? 19

Yes.

And also in that document did you find any

21 indications as to whether or not Mr. Skinner was

22 allergic to Codeine? 23

Reports of self -reporting Codeine allergy.

All right. Now, Dr. Lowry, is any of the

25 information that I just showed you and asked you to BETTY TATE, 3101 TOWNBLUFF DR. #9231 PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. I I 11 -17 - 05

306

1 review prior to trial, Plaintiff's Exhibit 10, 2 Plaintiff's Exhibit 111 Plaintiff's Exhibit 15, 3 Respondent's Exhibit 38, and Plaintiff's Exhibit 12, is 4 any of that information - - was any of that information

5 made available to you at the time you testified at

6 trial? 7

No, it wasn't.

If you had seen this information prior to trial,

9 would it have affected your trial testimony in any way? 10

Yes.

In what way? What ways?

It would have very much bolstered my testimony to

13 the fact that, you know, he's either allergic to 14 Codeine, which would enhance his disabilities on the

15 night of the murders, or he thought he was allergic to 16 Codeine and really hadn' t developed too much intolerance 17 to Codeine. lยก

You indicated that those prescription records did

19 not indicate any - - that there was any prescription fo~ 20 Codeine, but do you see that there are prescriptions for ----21 vicodin and Hydrocodone? 22

Yes.

Vicodin again being a subst itute - - or excuse me i

24 brand name for Hydrocodone? 25

BETTY

Yes. TATE, 310lTOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARINGI VOL. II 11-17-05 1

307

Would Mr. Skinner's use of Hydrocodone have bui 1 t

2 up a tolerance to Codeine? 3

Not significantly. Hydrocodone does not even

4 metabolize to Codeine, synthetic narcotic which studies

S have shown that are bound poorly to the opioid 6 receptors, so really he would not build up a significant

7 tolerance to Codeine, morphine as he would given the

8 true opiates. 9

All right, Dr. Lowry.

on you again.

I'm going to change subj ects

Excuse me again just a minute.

11 Dr. Lowry, prior to the time that you 12 testified at trial were you shown by Mr. Skinner's trial

13 counsel any blood spatter evidence? 14

I had one report, I bel ieve, I did get, as I

15 recall. 16

And what do you recall about that report?

It was talking about blood throughout the room

18 where Twi la Busby was murdered.

19 Q Was this a report that focused essentially on blood 20 spatters on, for example, the walls, the ceiling, the 21 floor, the couch and so on? 22

Yes.

Prior to your coming here to testify today, did I

24 ask you to review what has been marked as Plaintiff's 25 75? BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

308

EVIDENTIARY HEARING, VOL. II 11-17-05 1

Yes.

I want you to turn to Page 2 of that. Do you see

3 that there is a paragraph toward the bottom half of the 4 second page that starts with a - - that is a discussion

5 of photograph No.5?

Yes.

And if you wouldi sir, if you could just go down to

8 say the last sentence of that paragraph and read to us

9 that last sentence? 10

"These patterns would indicate that this victim was

11 present in the immediate vicinity of the victim, Twila 12 Busby, at the time of her assault. II Does the sentence say there are only - - there are 13 Q 14 two nearly circular shapes 15

Yeah, that's the sentence before.

Oh, I'm sorry. Why don't you read that sentence.

"There are two nearly circular shapes splattered on

1l the left side of the victim, which indicate that they

19 originated somewhere to the victiml s left side and wer~ -

nearly 90 degrees to the victimi and these patterns

21 would indicate that this vict im was present in the 22 immediate vicinity of the victim, Twila Busbyi at the II 23 time of her assault.

Dr. Lowry, prior to trial were you shown

25 Plaintiff's Exhibit 75? BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO

i TX. 972-596-9442

309

EVIDENTIARY HEARING, VOL. II 11-17-0S 1

No.

And prior to trial were you given any information

3 about what Detect i ve Morse Burroughs, or Of f icer Morse 4 Burroughs, had concluded about blood spatter on Elwin

SCaler's shorts? 6

No.

7 Q Had you seen this information in Plaintiff'S 8 Exhibit 75 prior to your testimony at trial, would it 9 have affected your opinion in any way? 10

Yes.

In what way i sir?

1 it would have bolstered it. My original

12 A Well

13 opinion was based upon the thought I had had that each 14 victim was in a separate room, and I was having trouble 15 seeing how Mr. Skinner, in an inebriated state that he 16 was in, could maneuver from room to room to locate

17 people. 1 8 Now, where he's al legedlybeat ing som~one in 19 the same room with a young man that's 6 - 2, 3 1 whateve~,

20 and weighs 230 pounds, I cannot imagine how anybody

21 being sober can do that, unless they're pretty agilei 22 but in an inebriated state, it floors me, it's beyond my

23 comprehension. 24 25

MR. ROBINSON:

no further questions.

Thank you 1 Dr. Lowry.

I have

Pass the witness.

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-S96-9442

310

EVIDENTIARY HEARING, VOL. II 11-17-05

THE COURT: We'll be in recess for 15 minutes.

(Short Recess)

MR. ROBINSON: Your Honor, I wonder if I could

take care of a little housekeeping.

5 the admission of

I'd like to move

Plaintiff' s Exhibit No.1, which is the

6 affidavit of Andrea Joyce Reed, and we are asking that

7 it be introduced at this point anyway, solely for the 8 purpose of showing what Dr. Lowry was shown prior to his

9 testimony here today.

10 I would move the admission - - do you want me 11 to do these one at a time, Your Honor? 12

THE COURT: No, go ahead.

MR. ROBINSON:

I would move the admission of

14 Plaintiff 1 s Exhibit 2, which is Andrea Reed's statement 1S to Officer Connie Ogle,

on l-1-941 which Dr. Lowry also

16 testified that he was shown prior to his trial

17 testimony. We move the admission of the affidavit of lr

1~ Lori Brim, Plaintiff's Exhibit 15, again solely for the 19 purpose of - - not for the truth of what it says but fOr 20 the purpose of showing that it was reviewed by Dr. LowrĂ˝

21 before he testified here today.

22 I would move the admission of Plaintiff's 23 Exhibit 18, which is the curriculum vitae of Dr. Lowry.

24 I would move the admission of - - sticking with 25 Dr. Lowry (inaudible), I move the admission of BETTY TATE, 3i01 TOWNBLUFF DR.

#923, PLANO, TX. 972-596-9442

311

EVIDENTIARY HEARING, VOL. II 11-17-05

1 Respondent 1 s Exhibit 38, which are medical records that

2 Dr. Lowry reviewed.

3 Then I have also three other exhibits that do -.

4 not relate to Dr. Lowry, but -THE COURT: Let's go over these. P-11 P-2,

6 P-15 and P-18 and R-38. Any objection? 7

MS. HAYES: No obj ections.

THE COURT: Okay, P-1, 2, 15 and 38 are

9 admit ted for the purpose of showing what Dr. Lowry was

10 provided MS. ODEN: That was Respondent's 38, Your

12 Honor. 13

THE COURT: Respondent's 38, al 1 right.

MR. ROBINSON:

I' msorry, Plaintiff's Exhibit

15 18 is admitted? THE COURT: The other four are admitted for

17 the limited purposes you offered them (inaudible). MR. ROBINSON: Then I have Plaintiff'~ Exhibit

19 42, the arraignment in the capital murder case dated

20 2-24-94, a transcript of the arraignment. THE COURT:

Is that in the state court record

22 already? 23

MR. ROBINSON: Well, you know, I'm not totally

24 sure they did because I believe that trial counsel 25 sorry, that the original habeas counsel found that that BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

312

EVIDENTIARY HEARING, VOL. II 11-17-05

1 transcript had not been recorded and I think he had it

2 transcribed, so to be sure that it's in the record, I 3 would - ~ 4

THE COURT: Any objection to 42?

MS. HAYES: No, Your Honor.

record.

It is part of the

It's included in the supplemental statement of

7 facts, probably Volume 6, but just for convenience, we 8 have no obj ect ion.

THE COURT: Al 1 right, admi t ted.

MR. ROBINSON: And then the same may be true

11 of Plaintiff's Exhibit 43. These are excerpts from a

12 May 25th, 1998 show cause hearing in petitioner's 13 initial state habeas proceeding. They were not part of 14 the trial record but whether they are part of the record

15 that's before the court, I'm not entirely clear, so I 16 would move the admission of 43.

MS. HAYES: No obj ection.

17 l;

1~'

THE COURT: Admitted.

MR. ROBINSON: And then finally, Your Honorl -

you'll recall in one of our telephone conferences that

21 we mentioned to you that Ms. Hayes and I had been able 22 to work out that the original trial judge, Judge M. Kent

23 Simsltestify here by affidavit, and we have stipulated 24 that his affidavit is what he would testify if he had

25 come here to testify in person, and so we -- I believe BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

1 VOL. II 11-17-05

EVIDENTIARY HEARING

313

iour stipulation is that you could treat this affidavit 2 as though he gave his test imony in open court, and it

our 3 has not - - it 1 S not in our book yet but it would be

4 next exhibit in order, which I believe is Plaintiff's 5 Exhibit 78, and I am marking this as 78 at this point.

THE COURT: Have you gone over that with your

7 client, that Judge Sims is going to testify by

8 affidavit? 9

MR. ROBINSON:

I believe I have. Haven' t I

10 discussed this with you? 11

MR. SKINNER: No.

MR. ROB INSON: Al 1 right. We 1 l, may I consul t

13 wi th him for a moment? 14

THE COURT: Sure.

(Short Pause)

THE COURT: Any obj ect ion to 78?

MS. HAYES: No. We agreed wi th the testimony.

THE COURT: Admi t ted.

MR. SKINNER: Your Honor, I've not see it but

20 it will be fine with me. 21

THE COURT: All right, admitted.

MR. ROBINSON: We have Plaintiff's Exhibit 6

23 still open. We moved yesterday for its admission, and 24 at this time I'd like to withdraw our motion to admit

25 Plaintiff's Exhibit 6. BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

VOL. II 11-17-0S

EVIDENTIARY HEARING,

THE COURT: All right.

MR. OWEN: And Your Honor ione final

314

3 housekeeping matter before cross examination begins.

4 Plaintiff originally listed on its witness list and the 5 court swore yesterday morning, Mr. Albert Maggard as a

6 potential witness for the petitioner. We have elected 7 not to call him and won't be calling himi and we did

8 communicate that to respondent and respondent has 9 advised they don' t have any obj ection to releasing him

10 from the rule 1 and permitting him to go about his

11 business and be here 12

THE COURT: Where is he?

MR. OWEN: He has come into court. He's the

14 whi te haired gent leman on the first row. 15

MR. MAGGARD: I'm here, Your Honor.

THE COURT: Is he released or did you decide

17 not to use him as a witness? 'r

1~:

MR. MR. OWEN: No, Your Honor.

THE COURT: Y' al 1 are not going to use him as

20 a witness? 21

MS. HAYES: No.

THE COURT: All right, you're released as a

23 witness, and you may stay and listen, you may leave, you

24 may do whatever you want to do, except donI t talk to the 25 witnesses that are still under the rule about what you BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. II 11-17-05

315

1 hear in court or about any of the case. 2

MR. MAG

GAD : Thank you, Your Honor.

MS. ODEN: May I inquire, Your Honor?

THE COURT: Yes.

CROSS EXAMINATION

8 BY MS. ODEN: 9

Good morning, Dr. Lowry.

Good morning.

You and I met first today?

Yes.

I am Georgette Oden with the Attorney General's

14 Office, and I just want to understand are you a medical 15 doctor or is that a ph. D doctor? 16

No, I hold a Ph.D.

17 Q So I'd like to talk to you a little bit first about 18 what information was available to you when you formed

19 your opinions in this case. You stated that you befo~e 20 trial did not review any of his medical records, any Of

21 Mr. Skinner's medical records; is that right?

22 A I did not even see any medical records. 23 Q And before your testimony today you actually were 24 able to review all the medical records that were

25 provided in Respondent's Exhibi t No. 38; is that right? BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-S96-9442

316

EVIDENTIARY HEARING, VOL. II 11-17-05 1

That's correct.

Before the trial you reviewed Hank Skinner's

3 transcript of his confession on January 1st, , 94; is

4 that right? 5

I believe so.

And before trial you also reviewed the blood

7 spatter report of Deputy Sheriff Finsterwahl; is that

8 right? I don' t remember the name of the investigator but

10 it was a blood splatter report of the room. 11

Would your trial testimony refresh your

12 recollection? 13

It would be better than not having it 1 yes.

MS. ODEN: Judge, may I approach?

THE COURT: You may.

MS. ODEN: For counsell s reference, I'm

17 showing him Volume 30 of the trial transcript, Pages 'l

15 1484 and 1485. 19

I do remember being asked about blood splat ters, .

20 and I said I was not an expert. 21

(By Ms. Oden)

I think the first few lines are

22 splatters, No. 25 is the (inaudible) report, the first 23 couple of lines on the next page. Don1t read it out 24

loud.

Just review that and tell me if when you've read

25 them. BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO

i TX. 972-596-9442

317

EVIDENTIARY HEARING, VOL. II 11-17-05 1

I've read them.

Do you remember reviewing Deputy Finsterwahl' s

3 blood spatter report prior to your testimony at trial? 4

Yes.

THE COURT: Did you say Volume 29?

MS. ODEN: Yes, sir. 29 and 35. Is that your

answer?

( Inaudible)

(By Ms. Oden)

I'm sorry, Volume 30. Sorry. And you also for trial reviewed

9 Morse Burroughs' blood spatter report; is that right? 10

Only one blood spatter report.

That wasn' t always your testimonYI was it?

Pardon?

That wasn't your testimony

I stated that I was not a blood spatter expert.

I'm sorry, Dr. Lowry, I want to make sure my

at trial, was it?

16 question is clear. My question to you is at trial you 17 did not testify that you only reviewed Deputy

18 Finsterwahl' s blood spatter report? 19

I thought that I had only reviewed one.

I honestly

20 thought I had only reviewed one ~ 1 Your Honor?

MS. ODEN: May I approach

THE COURT: You may.

MS. ODEN: I'm looking at Volume 301 Page

24 1492. 25

(By Ms. Oden)

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO

Dr. Lowry, I'm going to read that 1 TX. 972-596-9442

318

EVIDENTIARY HEARING, VOL. II 11-17-05

1 and if you will read along with me and tell me if I make

2 a mistake when I get to the end.

Line 12, "Question: You referred to the

investigative report of 1 among others 1 Morse

Burroughs, true? II

Answer : I believe so.

"Question: Were you furnished information or

7 8

did you see information in Officer Burroughs'

report about the opinions concerning blood spat ters that he found on the underwear of Elwin Caler?"

19, .Mr. Fields interj ected an obj ection. And

I'm turning to Page 1493, Line 14:

Question by Mr. Mann:

II Let me ask it this

way, sir. You were furnished a report by Of f icer

Morse Burroughs, an investigative report about what

he observed in connection with this case 1 true?

"Answer: Yes. II

17 (

Did I read that correctly?

1~'

Yes, you did.

That's all I wanted to read.

Okay.

Before trial you reviewed Sgt. Katie Gerhardt's

23 of fense report regarding the case, did you not? 24

I think so.

Okay.

Do you remember?

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO

1 TX.972-596-9442

319

EVIDENTIARY HEARING, VOL. II 11-17-05 1

No.

Would your trial testimony refresh your

3 recollection? 4

Yes.

Okay. Volume 30, Page 1494 and 1495.

Okay. Yes.

Did you review Sgt. Gerhardt's report before your

8 trial testimony? 9

Yes, I did.

Now before your trial testimony you did not examine

11 or consider the blood on the defendant's shirt; is that

12 right? I don' t recall seeing blood splat ter on the

defendant's shirt.

I only reviewed one blood test - - a

15 blood splat ter test - - report, I'm sorry, and when I was

16 asked that -17

Hold on, hold on. Just answer my question.

I'm

18 sorry. 19

I was answering

MR. ROBINSON: Objection, Your Honor. He's'-

to answer the question.

21 trying

MS ~ ODEN: My quest ion was did he examine or

23 consider the blood on the defendant 1 s shirt, and his 24 answer was going into something that was said during

25 court. BETTY TATE, 3101 TOWNBLUFF DR. #9231 PLANO

1 TX. 972-596-9442

320

EVIDENTIARY HEARING, VOL. II 11-17-05

THE ~OURT: Sustained.

1 2

(By Ms. Oden) My question to you, Doctor, is did

3 you examine or consider the blood on the defendant's

4 shirt before you testified at trial? 5

No.

I'd like to change subjects just a little bit.

7 would like to talk to you about your general

knowledge

something you've already testified a little

9 bi t about on direct - - about the symptoms of, for

10 example, Codeine ingestion. 11

Yes.

If someone were to take Codeine with alcohol

1 you

13 mentioned that it was a synergistic effect? 14

Correct.

Can you explain a little bit more about what you

16 mean by synergistic effect? 17

Well, the symptoms of a dose of one, plus the

1~ symptoms of a dose of two, result in could be 3, 4, 5. 19 It's greater than the sum of the two, and it --

Okay. And if you were eval ua t ing someone' S

21 symptoms in terms of whether or not they were having a 22 reaction to a medication, you would want to know whether

23 they had taken that medication with alcohol, for 24 example, would you not? 25

Yes.

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

321

EVIDENTIARY HEARING1 VOL. II i1-17-0S 1

What would you say to be the symptom of someone

2 t.aking too much Codeine, too much in the sense of too

3 great a dose, or too much for their body weight?

4 A Sleepiness 1 the reduction of pain, possibly a 5 little constipation. 6

Would they possibly be dizzy?

Yes, they'd be dizzy.

Would they have a balance problem?

If the dosage was sufficient, yes.

What if someone took Codeine with alcohol

1 would

11 they possibly exhibit sleepiness? 12

Very much so, yes.

Dizziness?

Yes.

Loss of balance?

Yes.

Staggering?

As I've stated previously, yes. of ~n

19 Q You previously discussed some of the symptoms

20 allergy to Codeine. What kind of medications would hĂŞ

21 problematic for someone if they had a Codeine allergy, 22

obviously besides Codeine?

I'm not sure.

The cause?

Probably Codeine,

24 morphine. 25

Any other medications besides Codeine and morphine

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

322

EVIDENTIARY HEARING, VOL. II 11-17-05

1 that would be problematic for a person with an allergy

2 to Codeine? A

Any

medication with thebaine in it, or papaverine, "

4 possibly. 5

I'm sorry, can you say those words again?

Thebaine, t-h-e-b-a-i-n-e~ if that's still in any

7 medications nowadays, and I don' t think that 8

papaverine

I've never seen reports whether

papaverine

it is an opiate alkaloid.

Okay.

You're familiar with other medications

11 besides Codeine and morphine, obviously. Are you

12 familiar with Xanax? 13

Yes.

And what is the common chemical name for Xanax?

Alprazolam.

And can you describe what type of symptoms a person

17 would exhibit if they took alprazolam, or Xanax with l I'

l~t: alcohol? 19

It would be a synergistic effect and this is a

20 benzodiazepine tranquilizer, or anti-anxiety medication, .... I t produces the and it would have a synergistic effect. 21 22 same symptoms we've been talking about.

Okay.

Now because you're not a medical doctor, you

don' t prescribe drugs for people; is that right?

That's correct.

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. II 11-17-05 1

323

And as we were talking during a recess i you don' t

2 really treat patients in the sense that people come to

3 you and try to get prescriptions or a diagnosis of

4 what's going on with them? 5

No.

Obviously you do consul t with companies where

7 people have industrial hygiene health issues? 8

Well, industrial health (inaudible) cases.

And would you say that you have not had much

10 experience with patients that would come to a doctor

11 trying to get drugs? 12

I'm sorry?

In your experience as a forensic toxicologist and

14 in the consul ting that you 1 ve done, would you agree that

1S you have not had very much experience with patients

16 coming to a doctor trying to get drugs? 17

No.

They wouldn' t come to you for drugs r would they?

No.

So would you know what typical drug seeking

21 behaviors would be from someone who may have a drug

22 problem? 23

No.

Based on your training and experience, which drug

2S is stronger, if I can use that term, Vicodin or Talwin? BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. TT 11-17-05

324

It depends on the dosage, 5 milligrams, 10

milligrams.

They should be basically the same since I

3 think they both contain hydrocodone. 4

So a doctor can equally prescribe either Vicodin or

5 Talwin in your experience and in your belief? 6

I wouldn' t say equally.

I guess if a person is experiencing a certain kind

8 of pain, a doctor would be equally appropriate in

9 prescribing either Vicodin or Talwin? 10

Well, some Vicodin preparations contain

11 acetaminophen, and I've encountered problems where a

12 doctor prescribed Vicodin with acetaminophen to a person

13 who frequently drinks alcohol and it destroyed his 14 liver, so you 1 ve got to take into cons iderat ion what is

15 in the preparation. 16

Aside from any other material that might be in that

17 preparation, I mean in terms of its strength and its l,

1Jf effectiveness for controlling pain, in your experience

19 they would be about equal? 20

If the dosage was the same of the hydrocodone.

I want to make sure I understand your position

22 before the court today. As I understand it - - tell me 23

if I'm incorrect

you have three basic arguments.

24 The first argument is if you had known that 25 Andrea Reed was lying 1 as she now claims, you would have BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

325

EVIDENTIARY HEARING, VOL. II 11-17-05

1 been more convincing about the defendant's inability to

2 function that night; is that right? 3

Correct.

And your second argument is that if you had known

5 the defendant was allergic to Codeine then you could 6 have countered the state's tolerance argument; is that

7 correct? MR. ROBINSON: Obj ect ion to the use of the

9 word argument, Your Honor. His opinion would be the

10 more appropriate word in the question. MS. ODEN:

I think you used the word argument

12 in the writ but I'm happy to change iti Judge. THE COURT:

(By Ms. Oden)

All right. If you had known that the defendant

1S was allergic to Codeine then you could have more

16 effectively countered the state's opinion about his

17 tolerance? 18

I could have more intelligently answered the

19 question rather than talk to the fact

that I'm dealin~

20 with claims I don' t believe in the first place that 21 Andrea Reed stated. 22

But did I more or less get your argument right,

23 that if you had known about his allergies you would hĂ¤ve

24 been able to feel that the state's position on tolerance 25 BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

326

EVIDENTIARY HEARING, VOL. II 11-17-05 1

That is correct.

And your third argument is that if you had known

3 about the blood spat ter on Elwin's underwear that Morse

4 Burroughs described in the report that the petitioner 5 has produced, you would have - - and that's where I'm a

6 little lost. 7

Well, this

You could have done what?

This would have bolstered my opinion even more to

10 understand how an individual in a stuporous state as Mr. 11 Skinner was in at the time, could beat someone up whi le

12 a very large and very young person was standing right

13 there and him not intervene, or maybe trYI and then to

14 go from a handle to a knife. That takes a little 15 coordination, a little effort, and it takes an effort to handle a knife. It does not make common sense to me, so 16 17 that would have bolstered my opinion. L/'

1ĂŠ:

And when you say it would have bolstered your

19 opinion, you're talking about its credibility or

its

20 weight to the jury, not in terms of it changing the 21 words that you used, or your opinion? 22

It would have been more - - I probably would have

23 been more effective in answering the questions much

24 bet ter than I did. 25

So it would have changed what you said, or your

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

327

EVIDENTIARY HEARING, VOL. II 11-17-05

1 opinion, or it just would have made it more effective

2 with the jury? 3

Made it more effective.

Okay.

,....

So let's talk about your first issue, which

5 is Andrea Reed's recantation, if you want to call it

6 that. 7

Yes.

You said that you read the transcript of the confession before trial.

9 defendant's January 1st

Yes.

And you also read his January 4th confession before

12 trial? 13

Yes.

And the defendant said he went to Andrea Reed 1 s to

15 get fixed up. 16

I don' t recall the statements verbat im.

Do you recall something to that effect?

Something like that.

That the defendant had confessed that he had gone

20 to Andrea Reed's house for the purpose of get t ing fixed

21 up. 22

Something like that, yes.

And do you recall that in this confession the

24 defendant 25

MR. ROB INSON: Excuse me, Your Honor.

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. II ll-17-05

328

lob j e c t t 0 he r c all in g the s e con f e ss ion s . T hey' r e 2 statements, they are open to interpretation as to

3 whether they're a confession. They are statements that 4 were given by Mr. Skinner to the police officers.

THE COURT: Overruled.

5 6

(By Ms. Oden) And in the narrative section, you're

7 aware that the defendant said he knew when he got up

8 that his vodka was gone. 9

That his what?

His vodka, the bottle of vodka was gone.

Okay, yeah.

Do you remember that?

Vaguely.

And he also knew that Twila Busby had gone to

15 Howard Mitchell's house. 16

Okay.

Do you remember that?

1l:

Vaguely.

If you'd like to refresh your recollection

If there's any importance to it, you know,

We'll get there.

Okay.

But you do remember that?

Vaguely.

If you'd like to refresh your recollection just let

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING1 VOL. II 11-17-05

329

1 me 2

Okay.

And you know that the defendant made it some five

4 blocks in the dark to Andrea Reed's house somet ime

5 between the end of the murders and when Andrea Reed

6 found him there at midnight? 7

Yes.

8 Q And you know that Twila Busby was dropped off by 9 Howard Mitchell at her home around 11:30 that night? 10

Okay.

Do you remember that?

Vaguely.

And you know the police were dispatched to the

14 house at 11: 59? 15

Yes.

So the murders happened somet ime in those 29

17 minutes? 18

Okay.

19 Q And you know that Hank Skinner arrived at Andrea' 20 Reed's while the guns were shooting in her neighborhoĂ´d 21 celebrating the New Year. 22

Okay.

You remember that?

Vaguely.

Do you remember that he admi t ted he got to her

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARINGt VOL. II 11-17-05

330

1 house close to midnight? 2

No, I don' t - - I thought he was already there.

3 my mind I did. 4

Okay. And did you hear Andrea Reed testify that he

5 got to her house at midnight? 6

To Andrea Reed's housel yes.

I thought you were

7 talking about Twila Busby -8

I'm sorry, I shouldn 1 t use preposit ions. Do you

9 remember that Andrea Reed today testified -10

Yes. Now, he got there --

At midnight?

1.2

Right.

And you also

heard Andrea Reed testify today that.

14 Hank was there for three and a hal f hours? 15

Correct.

And when you testified at trial, reviewing all the

17 evidence that was available to you, you were surprised , 1~ that you didn' t find Hank's bloody hand prints allover

19 the house; isn't that right? 20

I believe so, yes.

And that was because your opinion on his

was he should have been staggering allover

22 intoxication

23 and trying to hold on to stuff to get up or to stay uP? 24

Yes.

But you didn 1 t hear Andrea - ~

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

331

EVIDENTIARY HEARING, VOL. II 11-17-05 1

A Bear in mind, the reason I stated that is because

to commi t the murders he would have had to move from

room to room to room, and that way I was surprised not

finding bloody hand prints for that reason.

Q Now today you heard Andrea Reed testify that while

she was - - I don't even remember where she said she was

in the house, but while she was in the back room of her

house, or on the phone, that Hank had gone to

bedroom?

A Yes.

Q Without her assistance?

A Yes.

Q But despi te this independent evidence of Hank being

able to function that night - - and when I say

independent 1 I mean independent of what Andrea Reed

to the police at that time, you still testified at trial

that he should not have been able to do those things.

A To commi t the murders, yes.

Q But it was

have been able to walk five

short period of time.

A Most people, they should - - you know, would not have been able to. Q And he shouldn' t have been able to move around in

the house unassisted.

(Jj:

her son's

said

also your opinion at trial he should not

blocks in the dark in a

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-944,

EVIDENTIARY HEARING, VOL. II 11-17-05

332

Correct.

He shouldn't have been able to

Correct.

He should not have been able to have a purpose in

have a conversation?

5 mind directing his movements? 6

That's correct.

And he shouldn' t have been able to know things that

8 happened when he was comatose on the couch? 9

Tha t' s correct.

But all those things did happen?

That's correct.

And there is no evidence before the court today

13 disprovingth.ose things that we. just talked about? 14

As far as I know, that's correct.

Now you felt then, as you do now, that at that

16 level of intoxication Hank should not have been able to

17 stand or walk, at least? 1t'f

That's correct.

Much less be able to get up, have a conversationl

be confronting the real killer, if there was a real

21 killer, and then get all the way to Andrea Reed's house

22 in 29 minutes? 23

That's correct.

I'd like to talk to you a lit tle bi t about the

25 second issue that you brought up, which is the allergy BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. II 11-17-05

333

1 of Codeine. Aside from Lori Brim's affidavit, which I was made in 1998, and that's the affidavit you

2 believe

3 just spoke of on direct examinationi did you review , 4 anything that is not self-reporting to show that Hank

5 Skinner is allergic to Codeine? 6

No..

And I noticed that you qualified some of your

8 answers by saying that there are self -reports. Why is

9 that important to you as a toxicologist? 10

Well, he hasn' t been officially diagnosed as having

11 a Codeine allergy. 12

So is it

And most drug allergies are self-reported.

You were not, for example, able to see the

15 prescription for Codeine that Lori Brim said Hank

16 Skinner got? 17

No.

Did you, in forming your opinion 1 cons ider the

19 frequency with which Hank was prescribed pain killers 20 throughou t 1993? 21

No.

I believe that was Petitioner's Exhibit 10, the

23 prescript ion records. 24

I saw those but I didn't take into consideration

25 the frequencies. BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

334

EVIDENTIARY HEARING, VOL. II 11-17-05 1

So you didn't know how frequently he was prescribed

2 various kinds of pain killers that year? A

Well, he was prescribed several throughout that

4 time period. 5

But that was not a part of your opinion?

Rig ht . THE COURT: Let's make it clear you 1 re talking

8 about his opinions today?

MS. ODEN: Correct.

THE COURT: If you go back to the trial

11 opinion, let's make sure you (inaudible). MS. ODEN: Yes, sir, thank you.

12 13

(By Ms. Oden) And obviously you didn' t consider

14 that for your trial opinion because you didn't have

15 those medical records at trial? 16

That is correct.

And in preparing your opinion and forming your

t,r

1รถ'-':

opinion today, did you consider Dr. Sisk' s opinion that

Hank Skinner was very likely addicted to drugs?

He very well may be.

Did you consider Dr. Sisk' s opinion when you formed

22 your opinion here today? 23

Dr. Sisko

Are you familiar with Dr. Sisk1s opinion?

No. Maybe I overlooked it in the records.

BETTY TATE, 3101 TOWNBLUFF DR. #9231 PLANO

i TX. 972-596-9442

EVIDENTIARY HEARING, VOL. II 11~17-05

335

MS. ODEN: May I approach, Your Honor?

2 THE COURT: You may. 3 Q (By Ms. Oden) I'm showing you Respondent's 38 -4 his MED 45 (inaudible). 5

I just didn' t pay attention to the physician's

6 name. 7

I'm showing you the page on Respondent's 38 that at

8 the bottom right corner starts "MEDS 45. II Are you

9 familiar with that? 10

Oh, yes.

I'm sorry, perhaps I should have referred to

12 (inaudible). So that was an opinion on September 21st 13 of' 93, which says, "Patient has broke his toe three

14 days agoi and that is confirmed by x-rays from the 15 emergency room. He was given vicodin for pain relief. 16 However, now he is requesting Talwin after getting 17 relief from the Vicodin. I refused to fill the Talwin 18 and gave

him a new scrip for vicodin No. 20. This

19 patient is probably very much addicted to drugs. II

20 A Very much.

21 Q Did that form any part of your conclusion today?

22 A I think I've already testified to thati that as far 23 as an addiction, that it's still not going to -- that. 24 may be the explanation of why Mr. Skinner could walk or 25 stagger from one house down to Andrea Reed's house and BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. II 11-17-05 he awake.

336

People who have some sort of addiction or

2 tolerance you might say to that, will have - - what

3 normal people would be unconscious for them, they would 4 be conscious but still exhibiting signs and symptoms. A good example of that, I've seen people in

6 the morgue come in who had tried to drive an automobile

7 under similar states of alcohol and drugs, but at some 8 point in time they fail, so they may be awake and moving

9 but functioning is a different thing. 10

Did you, in forming your opinion todayi consider

11 Howard Mitchell's statement to the police that Hank was 12 hooked on pain killers 1 including Fiorinal, and would

13 take anything he could get? 14

Yes, it was considered.

And you're familiar with Fiorinal?

Yes.

And you're f.amiliar that a common formulation of

1g Fiorinal includes Codeine? 19

Yes, and some do not.

Sure, of course.

Just like you said, some Codeine'

21 contains acetaminophen; is that correct? 22

Yes.

I 1

Now,

did you consider a drug seeking measure on .

24 Hank's part because he was requesting stronger 2S medications when the current ones were working to BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

337

EVIDENTIARY HEARING, VOL. II 11-17-05

1 control pain in forming your opinion? 2

No.

I formed my opinion based upon the evidence

3 the night of the murders. 4

I mean for your opinion today.

I was still -- like I just got through testifying,

6 it may be the explanation of - - because I couldn' t

7 explain why he was walking from one house to another,

8 fi ve blocks, and I just testified to that, that that may 9 be the explanation because he had the active effect on

10 frequency of drug use.

11 Q So the answer to my question is you did consider 12 drug seeking behavior, such as him trying to get 13 stronger medication as part of your opinion today? 14

No 1 I did not use drug seeking behavior. using drugs.

15 his frequency of

I used

So did you use as part of your opinion today the

17 fact that he was stealing syringes when he was in the

18 emergency room? 19

No.

Were you aware of that?

I might have ran across it but it had no bearing on

22 my opinion. 23

So it was not important to you that in October of

24 ' 93 Hank Skinner showed up at the emergency room and was

25 complaining of pain in his ribs and was caught stealing BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING1 VOL. II 11-17-05

338

1 syringes in the emergency room? 2

Not f or my opinion, no.

Now when you were get ting ready for trial, you

4 obviously did not consider Lori Brim's account that Hank

Codeine back in 1983 because she didn' t

5 was allergic to

6 make that affidavit until 1998; is that right? That's correct. A 7 8

But you are aware as you were considering her

9 statement for your opinion today that she said he took

10 the Codeine after he had been drinking alcohol? 11

Correct.

And did that play a part of your opinion?

NO, the part that said he did take Codeine and he

14 had a reaction but it doesn't state that he was allergic

15 to it. 16

MS. ODEN: May I approach, Your Honor?

THE COURT: You may. r

(By Ms. Oden)

I'm showing you Lori Brim's

19 affidavit, which is Petitioner's Exhibit 15, and I'm --'

referring you to the third line in the third paragraph

21 (inaudible) . 22

That is correct.

So as part of your opinion today, it didn't come'

24 out to you that he took Codeine after having a few

25 beers? BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. II 11-17-05 1 2 3

339

I stated in my opinions today that he mayor may

not be allergic to Codeine. Tha t ' s just more evidence Codeine. of his reaction to the point when he did have " Now, you did consider as you formed your opinions Q

5 that -- I mean it sounds like you're saying he might not

6 be allergic to Codeine. 7

He might not, but still he would not have developed

8 what you would call a tolerance to the effects of

9 narcotics, simply because the synthetic opiates do

10 not - - are not attached to the opiate receptors as tight 11 as say for as morphine and Codeine would.

12 Q So if I understand you correctly, because he may

13 have thought he was allergic to Codeine, he took non 14 Codeine pain killers, which were not as good at building

15 up a tolerance, and so when he took the real deal, it 16 really knocked him for a loop? 17

No, it would still knock him for a loop but .it

18 might explain why he was awake. There are so many 19 different neurological pathways that the opiates affec't

20 that it gets complicated to think about how the

21 tolerance goes up and how the pain relief can function. 22

If I understand you correctly then, your opinion

23 still is what your opinion was at the time of trial,

24 which was he may have had a tolerance because of

2S frequent drug use, and that may have permitted him to do BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596 - 9442

EVIDENTIARY HEARING, VOL. I I 11 - 17- OS

340

1 these things that he shouldn't have been able to do wi th

2 that level of intoxication? No, it may keep him awake. He may have been - - I don' t think tolerance is a good adj ecti ve. I think more

5 or less he's become accustomed and programmed himself to

6 function with those levels. 7

Okay.

A person taking alcohol in quite large volumes

will

9 learn to program themselves to what say you and I would

10 be unconscious and asleep, they're still up roaming around and looking for another drink. It's a programmed 11

12 state, but are they functioning? No. Theyl re just 13 awake. 14

So they're awake but they're not moving?

I said they're not functioning. They can move but i as

16 as far a.s a decision making 1 as far as coordination

17 far as, you know, realizing what's going on around themi rr

1 ~ it's very highly unlikely. 19

So Hank Skinner should not have been able to make' a

20 plan in his mind "I'm going to go to Andrea Reed's housĂ¨

21 and get fixed up for this cut, Ă&#x; at that level of 22 intoxication? I wouldn' t think he could. I think just one thing A 23 led to another. I don' t know. I mean that's why we're 24 here. We don' t know. 2S BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

341

EVIDENTIARY HEARING, VOL. II 11-17-05 1

line

Let' s talk a little bit more about the time

2 and your assumptions that you made at trial for your

3 trial testimony. 4

Okay.

5 Q You knew when you were testifying at trial that at 6 6 : 00 0' clock at night Hank was napping on the couch but

7 he woke up.

8 A I believe so. 9

And at 8: 00 0' clock at night Hank was asleep and he

10 didn' t wake up. 11

I thought it was the other way around.

Would your trial testimony refresh your

13 recollection? 14

oh, yes, 5:30, 6:00 and then

Yeah, I'm trying to

15 8:00. Yes. 16

So at 6:00 he was napping but he woke up, and at

17 8:00 he was asleep and didn't wake? 18

At 8: 00, the way I calculated, he had a l~thal dose

19 of 20

No, no --

- - Codeine and alcohol.

Please, Doctor, stop.

what was in his system.

I'm not asking you about

I'm asking you about the time

24 line that you established at trial. 25

And that time line was based upon the alcohol.

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

342

EVIDENTIARY HEARING, VOL. II 11~1 7-05 1

I'm not asking you about his alcohol.

I'm talking

2 about evidence that was adduced at trial and presented 3 to you for your opinion about behavior people observed

4 in Hank Sinner, and do you recall 5

Correct, and based upon --

I'm not talking about his blood alcohol level.

I'm

7 talking about - ~ 8

And the --

~ _ and I'm not talking about the cut t ing .

Welli that's what they were talking about at the

11 time of trial. 12

Okay.

That's how the time line was based.

Sir, let me --

As far as his physical abilities.

Right, and I'm not talking about determining what

17 his physical abilities were based on his blood alcohol r,

1~ and blood Codeine level. 19

Okay..

I'm talking about earlier in the evening what

21 people observed him doing. 22

Okay.

And do you recall at trial you were presented wi th

24 information that at 6:00 p.m. Hank Skinner was napping

25 on the couch, but he woke up? BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. II 11-17-05

343

Okay, yes.

You recal 1 now?

Basically, yes.

And do you recall that at trial you were presented

5 with information that at 8: 00 0' clock at night Hank was

6 asleep and he didn' twake up? 7

Yes.

8 Q And do you recall that Hank Skinner was on the wi th Howard Mitchell at 9: 00 p.m.?

9 phone

1 0 A I think I was told that. 11

Do you remember?

Vaguely.

So you remember he had a conversation with another

14 person at 9: 00. You were told to assume that Hank took

1S the Codeine before 9; 3 0 p. m.; is that right? 16

Yes.

17 Q And you were told that Hank was not rousable at 18 9:30 p.m. when Howard Mitchell came to pick up Twila? 19

Correct.

Now you've already testified that it's highly

21 improbable that he was able -- that Hank Skinner was 22 able to commit these murders? 23

Correct.

Because at midnight he would be in a stupor?

Correct.

BETTY TATE1 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

344

EVIDENTIARY HEARING, VOL. II 11-17-05 1

And if Hank took the Codeine before 9: 30 he

2 wouldn' t have been able to wake up at midnight? Well, possibly, if there was a physical stimulus to

4 wake him up, yes. 5

But it would be highly unlikely

for him to wake up

6 by himself? A

By himself, probably not, but with any external

8 stimulus, yes. 9

If a person is comatose or asleep on the couchl and

10 nobody touches them, nobody says anything, and they're 11 in that kind of intoxicated state, what kind of external

12 stimulus would you expect would wake him up? 13

After three hours, you know, somebody hits them,

14 shaking them, not real hard. 15

You would find it hard to believe then that someone

16 would wake up spontaneously in that level of

17 intoxication? '1

1~'

Yes, it would be difficult to sleep.

Now, it's doubtful, but possible 1 according to your

20 trial testimony, that he would have made it five blocks

21 to Andrea Reed's house in three hours? 22

Okay.

Do you still agree with your trial testimony on

24 that point? 25

Yes.

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

345

EVIDENTIARY HEARING, VOL. II 11-17-05 1

And Hank Skinner said that night that he took

2 Xanax. Do you recall that? 3

Yes.

Can you tell us what the half life of Xanax is?

I think it's four to six hours, if I recall right.

i'd have to look it up.

It's been a while

since I've

7 looked at it. 8

And so by half life we mean if someone took Xanax

9 at some dose at noon, four to six hours later half of it

10 would be metabolized and out of their body? Correct. A 11 12

And another four to six hours later it would be all

13 gone? 14

No.

Half of the remainder would be gone?

Right. And six hours later half of that would be

17 gone. 18

Okay.

It divides in half each half life.

So in your opinion Codeine alone was not enough to

21 create the stupor that Hank Skinner exhibited at 9: 30 22 when Howard Mitchell couldn' t wake him up on the couch?

23 A At 9:30, based upon the half life, Mr. Skinner had 24 a lethal dose of Codeine. 25

And by lethal dose you mean enough to kill him?

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANOI TX. 972-596-9442

346

EVIDENTIARY HEARING1 VOL. II 11-17-05 A

Enough - - it's been reported in the literature that

2 the blood level that had been reported to cause death to

3 other people. 4

And I'm a li ttle confused

i and perhaps I'm

5 misunderstanding what you said at trial, but didn' t you

6 say at trial that the Codeine alone was not enough to

7 create the stupor? A

(No response)

MS. ODEN: May I approach 1 Your Honor?

THE COURT: You may.

10 11

Page 1462. Tell me if I read this correctly.

(By Ms. Oden) 11m referring you to Lines 3 and 4 of

" Codeine

13 alone could not have caused that comatose state. 14 Alcohol alone would not even put him unconscious. . .

15 A We're talking about the .11 milligrams per liter. 16 Q But he wasn' t comatose then, was he, when he had

17 .11, is that correct? lr

18~: A Except - - and they were talking about here, as.. I 5:30.

19 understand it, the references at

Okay. Let me see if I can clear this up. On Page ....

21 1461 and 15, Line 23 - - well, let me back up to Line 15

22 (inaudible) . "Answer: I do not really know when he took the

24 Codeine. 25

"Question: Would that be important? BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

347

EVIDENTIARY HEARING, VOL. II 11-17-05

II Answer: No.

IIQuestion: Wouldn't be?

2 3

II Answer: No.

"Question~ Not at all?

II Answer: No.

IIQuestion: Why not?

II Answer: Because we have two points of

a point of reference that he

reference. We have

was in a comatose state at 9: 30. We have a point

of reference at 5: 30 at .11 milligrams per li ter.

Codeine alone could not have caused that comatose

state.

unconscious, but the combination of those wi th the

synergistic effect, they are each above the 50

percentile of a potential lethal level, regardless

of any type of acclimation or - - - to a drug or

alcohol. II

Alcohol alone

would not even put him

Correct.

So at 9: 30 when he was comatose your testimony was

20 that Codeine alone would not have rendered comatose ยกis

21 that correct? Well, that was either a misquote or it was an error

on my part.

Yes, it would have.

So the Codeine that you supposed that he took by

25 9 : 30 alone would have been enough to render him BETTY TATE, 3101 TOWNBLUFF DR. #9231 PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. II 11-17-05

348

1 comatose? 2

Yes.

Then I assume you're saying the alcohol alone would

4 not have been enough to make him unconscious? A

Not for a

frequent drunkard. Might have been

6 for 7

A regular person?

A regular person, yes.

But not from what you know of Hank Skinner?

His regular use of alcohol. He would be very much

11 in a stupor state but not necessarily unconscious. 12

But when you were forming that opinion you were

13 taking into account his tolerance or accustomization, 14 whatever you want to call it, for drugs and alcohol? 15

Yes.

And that was your opinion at trial?

Yes.

1 g'i;

And your opinion today?

Yes.

Now at trial you testified that regardless at that

21 level of intoxication from alcohol and Codeine he would

22 have been unconscious at midnight? 23

One would think he would.

And that is still your opinion today, that he

2S probably should have been unconscious at midnight? BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

349

EVIDENTIARY HEARING1 VOL. II 11-17-05 1

Yes.

But at trial you had already discovered you did not

3 know when Hank took the Code ine? 4

Correct.

You thought you could safely assume that he took

6 the Codeine before 9: 30 because he wasn' t arousable at

7 9:30? 8

Correct.

Now his blood alcohol contents at S:48 a~m. was .11

10 grams per hundred milliliters; is that right? 11

Yes.

And his Codeine level at 5: 48 a. m. was .11 grams

13 per liter? 14

No, milligrams.

Milligrams per liter?

Yes.

So if you misspoke and you said grams per liter,

18 that was just a mistake? 19

That or it was in error in transcription.

it' s ĂŻn

20 milligrams per liter. 21

Milligrams per liter. Now his BAC, his blood

22 alcohol contents at midnight would have been .21? 23

Correct.

And his Codeine, if he took it before 9:30, at

2S midnight would have been .4 grams per liter? BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

350

EVIDENTIARY HEARING, VOL. II 11-17-05 1

No, .4 milligrams.

So that would have been another mistranscription?

Correct.

It's milligrams per liter.

If it had

4 been grams he wouldn' t be here. 5

And so if you calculate backwards, if he had taken

6 the Codeine before 9: 30 his blood alcohol content around

7 9:30 would have been .24? 8

.24 or . 2S, somewhere in there.

Okay. And his Codeine around 9: 30 would have been

10 .8 milligrams per liter? 11

Yes.

But you agree it's possible he took the Codeine

13 after midnight? 14

Anything is possible.

And if he took the Codeine after midnight, then the

16 absolute amount that he took would have been less 17 because it would not have needed to last as long to get

1~t, to .11 at 5:48 in the morning; is that correct? 19

So if he took the Codeine before 9: 30 at night, he

yes. -

21 would have had to take you said three and a half times

22 the normal dose for it to last all the way to 5: 48 in 23 the morning? 24

Correct.

But if he took it after midnight he could have

BETTY TATE

1 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. I I 11 - 17- 05

351

1 taken a substantially smaller amount? 2

Yes.

And if we wanted you to, you could probably

4 calculate what that amount is? 5

Yes.

6 Q I'm not going to make you do that. You would agree 7 it's possible that Hank took Codeine, thinking it was

8 Xanax in that alcohol state that he was in? 9

I guess.

Now you previously testified that drug and alcohol

11 abuse causes organic brain damage? 12

Yes.

And with organic brain damage you can have what's

14 called confabulations at any tĂŹme? 15

Yes.

You don' t just have confabulation when you're

1 7 taking the alcohol or when you're taking the drug?

18 A Correct. 19 Q And when you say confabulation you mean the brain 20 is filling in blank when it doesn' t know what happens?

21 A Correct. 22 Q And just because you're doing that doesn' t mean 23 you're taking drugs at that moment? 24

Correct.

You emphasized at trial that with him taking

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972~596-9442

352

EVIDENTIARY HEARING, VOL. II 11-17-05

1 Codeine and alcohol before 9:30 p.m. that it's possible

2 that between 12:00 midnight and 3:00 a.m. Hank could 3 have done those things, and those things was referring

4 to taking ofÂŁ his shirt ,walking, and talking. Do you

5 remember that? A

I remember trying to figure out Andrea Reed's

7 statement and trying to explain to myself under his condition how could he have done that.

I was trying to

9 fit it in. 10

And even now, if you would agree it's possible that

11 he walked five blocks from Twila's house to Andreal s

12 house -13

It's obviously possible because he did.

And it's possible that he had a plan in mind to go

15 to Andrea Reed's house because he in fact went there to

16 get his hand fixed. A

I have no idea about his plan.

iÂĄtt

But you remember reading that in his confessiOn?

Yes.

Now you 1 ve already told

the jury that decided his

21 guilt that because of his history of drug and alcohol

22 abuse, he was capable of being mobile at midnight? 23

One would think yesl it's safe to say that he was

24 mobile. 25

Even assum~ng he had taken the Codeine before 9: 30?

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. II 11-17-05 1

Yes.

And he would be even more - - it's even more

353

3 possible that he was mobile and functional at midnight

4 if he took the Codeine after midnight, because then at 5 midnight he would only have alcohol in his system,

6 right? 7

Yes.

And you've already said that for someone with a

9 heavy history of alcohol abuse, a .21 may not

10 incapacitate them to the same degree that might 11 incapacitate a normal non alcohol

person?

To put them unconscious, correct.

I'd like to talk to you a little bit about the

14 blood spat ter evidence. You've already said that you 15 reviewed Deputy Finsterwahl' s blood spatter report 16 before trial ,but earlier you were very careful to point

17 out that you did not reach any conclusion; is that

18 correct? 19

Correct.

And that's because you are not a blood spatter

21 expert yourself? 22

Correct.

And therefore you have no way of evaluating the .

24 accuracy of the report? 25

Correct.

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

354

EVIDENTIARY HEARING, VOL. II 11-17-05 1

So you read it but didn' t allow it to affect your

2 calculations? 3

Correct.

And your opinion is that it would not be uncommon

5 to see blood everywhere on everything in a multiple

6 murder situation like this? 7

Yes.

And you stated at trial

that the blood spatter

9 report was unnecessary for your conclusion? 10

That's correct.

And is that still your opinion?

Yes.

Now you did view the crime scene video before

14 trial? 15

Yes.

And you've already testified that the walls and the

1 7 carp e t --

1t (Short Pause) l

Sorry.

No, we're both in the same spot.

21 go back just one second and clear up

I guess I want to C

one thing that I

22 had forgotten to mention, and that is talking about 23 Andrea Reed's opinion of Hank's abilities that night. 24 You were present in the courtroom while Andrea

25 Reed was testifying this morning; is that right? BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

355

EVIDENTIARY HEARING, VOL. II 11-17-05 1

Yes.

2 Q And you heard her say that she believed

3 unsnapped his shirt part way, possibly all the way, but

4 that she had helped him take his shirt off because his 5 hand was hurt, not because he couldn' t do it himself.

6 Did you hear that? 7

Yes, I heard that.

8 Q And did you hear her saying that she thought he 9 could have taken his shirt off anyway if his hand had

10 not been inj ured? 11

Yes.

Do you find that surprising even at his level of

13 intoxication? 14

No.

I f he had walked five blocks and taken his

15 shirt off it would be much easier than the walk. 16

If he walked five blocks then walking from the

17 dining room to the bedroom is slightly easier? 18

Six feet is much less than five blocks.

19 Q Sure. And so that change in Andrea Reed's

20 test imony - - whether she helped him off with his shirt 21 because of his hand being hurt, or she helped him off 22 with his shirt because he was intoxicated, doesn't 23 really change your opinion of his level of intoxication

24 that night? 25

Correct.

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

356

EVIDENTIARY HEARING, VOL. II 11-17-05 1

Back to the blood spatters. You were also

2 furnished Morse Burroughs' report before trial, and

3 that's the report that was introduced -A

No, it was not. Let me clarify this.

I was

5 furnished one blood spatter report. 6

That's hasn't always been your testimony, has it?

Hold it.

I'm sorry, I'm have to ask the questions~

You've asked me about Morse Burroughs 'blood

Listen to me.

10 spatter. THE COURT: Just answer the question. Now I

12 can't remember what it was. 13

(By Ms. aden) My question was it has not always

14 been your testimony that you were only furnished one 15 spatter report. Yes or no? 16

It's been in my mind, my testimony, one blood

17 splatter report. At the time of trial I did not l

MS. aDEN: Your Honor, obj ection,

19 nonre spons i ve . 1

20 THE COURT: Sustained. I'm sorry, Dr. Lowry.

I don' t want

to be hard on the person that transcribes the tape

recording~ We can only one talk at a time.

I understand.

My quest ion --

(By Ms. aden)

BETTY TATE, 3101 TOWNBLUFF DR.

#923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. II 11-17-05

357

MR. ROBINSON: Can I talk, Your Honor?

THE COURT: Yes.

MR. ROBINSON: Your Honor, Ms. aden is making

4 a maj or distortion of the record here, and she is not

5 allowing the witness to be responsive to her questions, 6 so I obj ect to her cutting the witness off -THE COURT: The witness will be allowed to

8 completely answer the question, but the questions do not

9 need any answer other than what he gave. If there is

10 something you need to clear up, you can do so on direct. MR. ROB INSON: All right, thank you.

12 Q (By Ms. aden) Dr. Lowry, I think we already went 13 over something in your trial testimony where you did 14 testify that you had access to and used Morse Burroughs'

15 report, but you stated you didn' t use it as part of your

16 conclusion. Is that the distinction you're trying to 17 draw now? 18

No.

The distinction I was trying to draw, -. I did ion whose name was asked

19 not pay at tent

THE COURT: Dr. Lowry, just listen to her

21 question, okay? She didn' t ask you what your have - - counsel for 22 distinction was. Your lawyer will

23 petitioner mayor may not ask that. Just answer her 24 quest ions. 25

(By Ms. aden) When you were testifying at trial

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

358

EVIDENTIARY HEARING, VOL. II 11-17-05

1 you were completely aware of the import of what was

2 going on in that trial, were you not? 3

Yes.

You knew it was a capital murder trial?

Yes.

You knew that Hank Skinner's life essentially was

7 in the balance? 8

Yes.

And you knew that the outcome of the trial mayor

10 may not determine whether any further investigation was 11 done to determine if somebody else had killed Twila 12 Busby and her sons? 13

Correct.

So you made every effort when you testified at

15 trial to be accurate and complete and thorough?

16 A That's correct. 17 Q And at trial certainly your memory was much fresher ll

1k as to which documents you reviewed and which documents that opinion? 19 you needed in forming your conclusion and .

Yes.

And so at trial if you testified that you had

22 reviewed the investigat ive report of Morse Burroughs,

23 that would be accurate, is that not the truth? 24

That wasn't how it was asked but I reviewed one

25 blood splatter report. BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

359

EVIDENTIARY HEARING, VOL. II 11-17-05 1

And

THE COURT: whose? Do you know?

THE WITNESS: No, because I didn't rely upon

4 it because I'm not a blood splatter expert

5 THE COURT: All right, go ahead.

6 Q (By Ms. aden) Do you recall, even if you didn' t 7 rely on it, reviewing a blood spatter report that talked

8 about blood spatter on Elwin Caler's underwear? 9

No, I don't recall.

So if you testified that you did review that at

11 trial, you were in error at trial? 12

I'm assuming that he was asking about the same

blood splatter report. I did not know who wrote 14 reports, nor paid any attention of who wrote the

the

15 reports. 16

Did you pay attention to the contents, such as the

17 fact that there was blood spatter on Elwin Caler's

18 underwear? 19

I did not see that.

But you would agree with me that if you said it -was

21 provided to you, that at least it was provided to you? 22

Not until just recently.

I only received one blood

23 splat ter report, and that wasn't the one. 24

So if you testified at trial to the contrary. which

25 is correct, your trial testimony or your testimony BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

360

EVIDENTIARY HEARING, VOL. II 11-17-05

1 today? A

I testified at trial that I did not utilize the

3 blood splatter report. 4

That's not my question.

If you testified at trial

5 that you were provided more than one blood spatter 6 report and you're testifying today that you were only

7 provided one, which is correct? A

I did not testify at trial that I was provided two.

9 I said that I did not review the blood splat ter report. 10

MS. aDEN: May I approach, Your Honor?

THE COURT: You may.

(By Ms. aden) Dr. Lowry, I'm going to read from

13 Page 1484 and I'm going to start at Line 8: just a minute

"Question: All right. Give me

here. Were you furnished any information about

blood spat ter?

"Answer: Yes.

Ii 1 รถ'

"Question: What were you furnished?

"Answer: An investigative report.

"Question: What did that investigative report--

21 22 23

opine? "Answer: Was talking about the biood spatters throughout the house.

"Question: Whose report was that?

"Answer: I don't recall the investigator's BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

361

EVIDENTIARY HEARING, VOL. II 11-17-05

name.

"Question: Does the name .Wallace' refresh

memory, .Jesse Wallace?

"Answer: Like I said, I don't recall.

Could

be.

"The Court: Will both counsel approach,"

please?"

7 8

Off the record discussion at bench.

Going to Page 1485.

"Question:

(By Mr. Mann)

The blood spatter

report that you did review, do you recall it being

from a deputy sheriff out of Wheeler, Texas,

Wheeler County, by the name of Joel Finsterwahl?

"Answer: Like I said, I don' t recall the

investigator's name.

investigative

I just recall receiving an

report . "All right. Tell the jury what you remember

i 7

about what the report said about the blood spatter

at the scene."

Now I'm going to Page 1492 --

THE COURT:

Could you repeat

DR. LOWRY:

That's not

MS. aDEN:

That

wasn' t

that?

answer.

question.

1492, and

24 I'm starting at Line 9: 25

(By Ms. aden)

"Question: You were furnished the

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

362

11-17-05

EVIDENTIARY HEARING, VOL. II

i investigative report of many different police officers,

2 true? 3

"Answer:

"Question:

True.

You were furnished the

investigative report, or among others, Morse

Burroughs, true?

"Answer: I believe so.

"Question: Were you furnished information or did you see information in Officer Burroughs'

report about his opinion concerning blood spatter

being found on the underwear of Elwin Caler?

Your Honor, I'm going to obj ect

"Mr. Fields:

13 to Mr. Mann making any statements from Officer

14 Burroughs' report." 15 They continue with an evidentiary battle about

16 that.

1 7 And on page 1493 the court sustained the l

1~ objection, and Mr. Mann continued at Line 14: 19

"Question.:

(By

Mr. Mann)

Let me ask it thĂŻs Ă&#x;

You were furnished the report from

way, sir.

Officer Morse Burroughs, his investigative report

about what he observed in connect ion with this

case, true?

"Answer: Yes.

"Question:

Did you use any of the information

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

363

EVIDENTIARY HEARING, VOL. II 11-17-05 1

in that report in arr~ving at the conclusions that

you have reached?

"Answer: No.

help to

"Question: So that was really of no

you?

5 6

"Answer: Correct.

"Question: You were furnished the report of

Sgt. Katie Gerhardt containing her impressions and

observations of the facts wi th regards to this case, true?

"Answer:

So you were actually - - did I read that

I believe so.

correctly?

Yes, you did.

So you were actually presented with several

16 different officers' reports to review in forming your

17 trial opinion; is that correct? 18

That's correct.

THE COURT: How much longer is your cross?

MS. ODEN: What time is it, Judge?

THE COURT: (Inaudible).

MS. aDEN: If it's time for lunch, we can

23 break for lunch because I'm thinking maybe another 15. or

24 20 minutes. 25

THE COURT: We. 11

break for lunch.

We'll

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. II 11-17-05

364

back at 1: 20.

1 start

2 (Lunch Recess) 3

(By Ms. aden) All right, Dr. Lowry, I believe

4 where we left off you were discussing your review of 5 Morse Burroughs' report before trial, but you said that

6 his report was of no use to you; is that correct? 7

No, that's not what I said.

Page 1493, Volume 30.

MS. ODEN: May I approach, Your Honor?

THE COURT: You may.

(By Ms. aden)

Page 1493, I'm referring to Line 19.

"Question: Did you use any of this

information in that report in arriving at the

conclusions that you have reached?

"Answer: No. "

Did I read that correctly? A

Yes, but you did not

That's all my question.

- - that report.

Now, your opinion was and it still is that the

ii l

21 defendant was not -- at least at that level of 22 intoxication, should not have been able to move from one

23 room to the other, killing three people; is that

24 correct? 25

I -- yes, that is correct.

BETTY TATE, 3101 TOWNBLUFF DR. #923,

PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. II 11-17-05 1

365

And in forming that opinion you never considered

2 the blood spatter that was on the defendant's shirt?

3 A I did not see that report prior to the trial. On 4

his shirt?

I'm sorry, the defendant's shirt, yes.

No,

5 I mean -6

You did not consider the blood spat ter on the

7 defendant's shirt in forming that opinion? 8

That was considered but I still, based upon his

9 physical state, I did not think he could have

10 committed -- he may have been present there, but I don't he could have committed the murders.

11 think

And when you say he was present there, in your

13 opinion he was comatose on the couch; is that right? 14

Earlier he was.

15 Q Correct, but at some point then do you think he was 16 not on the couch during the commission of the offenses?

17 A No. During the commission of the offenses I don't 18 know. All I know is sometime afterwards he moved from 19 that location to Andrea Reed's location. 20

And according to the defendant he moved to AndreĂ˘

21 Reed's location after the assaults were over when an 22 assailant was standing over him with a knife; isn' t that

23 right? 24

That's as I recall, yes.

And actually in another version the defendant

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. II 11-17-05

366

i confessed to fight~ng with his girlfriend, Tw~la, and in 2 fact, that Scooter was pulling him of off Twila; isn' t

3 that right? 4

I believe so, yes.

And he said that in that fight he was using a stick

6 against Twila; isn't that right? 7

I believe so, yes.

But in your opinion that's not possible?

In my opinion he would not have the presence of

10 mind to commit the three murders, or physical ability to

11 do that. 12

And your testimony today was if you had seen the

13 blood spatter report from Morse Burroughs before the

14 trial, your opinion would have had more credibility

15 because at trial you thought each victim was in a

16 separate room of the house? 17

Correct.

Whereas now you know that two of the victims may

19 have been in the same room for some period of that

20 assault? 21

Yes.

And therefore with two victims in the same room

23 it's more easy for someone in that state to kill two

24 people because they're together? 25

No, it would be less to - - it's hard to understand

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. II 11-17-05

367

1 how a son could stand there and see someone beating his

2 mother to death and not try to do anything. 3

Okay, so let's take apart that idea and figure out

4 all the parts of that idea.

5 The first part of that idea is that the blood 6 that was on Elwin Caler's underwear was in fact Twila

7 Busby's blood. 8

Okay.

And the only evidence that you have before you to

10 indicate that is the case was Morse Burroughs'

11 description of the photographs in his deposition that it 12 was Twila Busby' sblood.; isn't that right?

13 A As we speak today, yes. 14 Q You've not reviewed any kind of DNA evidence that 15 indicates that it's Twi la Busby's blood, have you? 16

No.

So in fact, it could be anybody's blood on Elwin

18 Caler's underwear? 19

Correct.

So in fact, that blood spat ter analysis to your

21 understanding does not prove that Elwin was in the same 22 room wi th his mother? 23

That's correct.

But even if he was in the same room the blood

25 spatter does not prove to you that he stood by and BETTY TATE, 3101 TOWNBLUFF DR~ #923,

PLANO, TX~ 972-596-9442

368

EVIDENTIARY HEARING, VOL. II 11-17-05

1 watched while his mother was assaulted, does it? 2

No, he could have been sitting, I guess.

I don't

3 know. 4

Okay, but it doesn' t prove any

sitting and watching

5 either. does it? 6 A No. 7 Q It doesn' t prove what he was doing other than he

8 was specifically present?

9 A Correct. 10 Q And in fact, the defendant's confession indicates 11 that he was trying to hold the defendant off of his 12 mother; isn' t that right? 13

I believe so.

And you'd agree with me that it would be easier if

you have a hard time because you. re intoxicated with

moving from room to room, it would be easier to kill two

people if they were in the same room because he wouldn't

~ll 10"

have to go as far, right?

Well, with different weapons and his state of mind .-

it would have been probably a bit more difficult

21 changing from a stick to finding that knife. 22

Well. even besides those variables, because those

23 variables were present in your understanding at trial,-

24 the only thing that's changed is that now you see the 25 two victims are in geographically similar locations BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. II 11-17-05

369

1 instead of being in opposite rooms of the house? 2

Correct.

So wi th that being the only variable that's

4 changed, it would be easier for someone who is greatly 5 intoxicated to kill two people because they. re closer

6 together; isn' t that right? 7

Not really, based upon what I've stated to the

8 variables. 9

But those variables did not change from your

right ? He still had to kill

10 opinion at trial; is that

11 Twila with the stick and Scooter with the knife? 12

Correct.

So he still had to switch weapons, whether it was

14 at trial or your opinion today? 15

Yes, but there's a time factor that after he

16 killed - - allegedly killed Ms. Busby to change weapons

1 7 and maneuver to the next location. 18

And that assumes that he had to finish kiiĂŹing

19 Twila and then switch weapons? 20

Correct.

That does not assume that potentially he was

22 already done beating Twila when Scooter showed up. 23

Maybe.

24 Q Now, you were informed that Twila Busby's blood 25 alcohol content at the time of her death was .19; is BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. II 11-17-05

370

1 that right? 2

Correct.

And are you aware of evidence has been introduced

4 that Twila Busby was to some degree or another mentally

5 retarded? 6

I wasn't aware of that.

Are you aware of evidence that has been introduced

8 that to some degree or another Elwin Caler was also

9 mentally retarded? 10

I wasn' t aware of that.

Were you aware of some evidence that Elwin Caler

12 possibly was suffering from muscular dystrophy? 13

No, I was not aware of that.

Are you familiar with muscular dystrophy at least

15 in general? Yes.

Q And are you familiar with the effects of that

ii:

(inaudible) syndrome or that disease at least in terms

of a person's ability to move or to fight back?

Yes.

And are you, I would assume, in agreement that

22 someone with a .19 BAC, as was previously testified, 23 would find it difficult to defend themselves attacked'

24 with a pole? 25

Correct.

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. II 11-17-05 1

371

One other question. As part of your opinion today

2 were you provided with the blood spatter analysis of Max

3 Courtney? 4

No.

MS. aDEN: May I approach?

THE COURT: You may. What exhibi t number?

MS. ODEN: Petitioner's Exhibit 77.

(By Ms. aden)

Doctor, Pet it ioner' s Exhibit 77

9 that's already been admitted. it's a blood spatter

10 report prepared before trial at the request of defense 11 counsel, Harold Comer, by an expert in Fort Worth, Max 12

Courtney.

If you would take some time to review that,

13 paying special attention to Paragraph 5109, 5112, and

14 the last paragraph on the last page. MR. ROBINSON: Your Honor, if I may, I'd like

16 to have him review the entire document, not just those

1 7 paragraphs. MS. aDEN:

(By Ms. aden)

That was my earlier question.

Doctor, if you would be so kind to

20 read Paragraph 5109, 5112, please. 21

5109.

"Shirt purportedly from Skinner. Medium

22 velocity impact spatter and numerous other blood stains

2 3 were found on the shirt. Most of the spatter was found

24 on the shirt front, but some other very small stains

25 were found on the back, possibly consistent with BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

372

EVIDENTIARY HEARING, VOL. II 11-17-05

1 cast-off blood. The locations of the stain indicate 2 that the sleeves were rolled up two turns and that his 3 shirt front was open when at least some of the blood was

4 deposited on it.

5112.

"Jeans from Skinner. There is a large

6 amount of spatter on all sides of the jeans. This 7 includes impact spatter and possible cast-off tracks.

lower surfaces

8 It is on the front and back; it is on the

9 and the higher surfaces." 10

And if you would read the last pa~agraph on the

11 last page, please. 12

"Overall, the clothing of Skinner shows blood

that are generally inconsistent with his having

13 stains

14 simply lay on the sofa during the attacks on the 15 victims. The blood is too wide spread and on too many 11 the clothing.

16 different surfaces of

Thank you, Doctor.

1 t'

MS. aDEN: Your Honor, pass the witness.

THE COURT: Any re-direct?

MR. ROBINSON: Yes, Your Honor.

21 RE-DIRECT EXAMINATION

22 23

24 BY MR. ROBINSON: 25

Dr. Lowry, I just want to clear up the issue of the

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

373

EVIDENTIARY HEARING, VOL. II 11-17-05

1 Morse Burroughs' report.

2 I'm going to take you back to your testimony 3 that Ms. aden referred you to a couple of times during 4

your cross examinat ion.

Page 1484 of the transcript,

5 you were asked if you were furnished any information 6 about the blood spat ter report. 7

Yes, sir.

Were you asked the following question,

"What were you furnished?"

"Answer: An investigative report --"

MS. aDEN:

Judge, I'm sorry, I don't mean to

12 be a pain but if this is an impeachment, it's improper.

13 It's an improper refreshing of recollection and he's

14 testifying from a document not in evidence. 15

MR. ROB INSON: Excuse me, Your Honor.

This is

16 the very transcript - - first of all, the transcript of 17 the trial is in evidence is my understanding as part of

18 the record of this case and before the court. Secondly, 19

this is the very document that she examined him on.

She

20 did the very same thing, reading from Mr. Burroughs'

21 testimony, and all I'm trying to do is to establish that 22 the fact he did not say, which she tried to get

him to

23 concede he said in this transcript, and I'm trying to' 24 show that fact of what she tried to do, which I think 25 was a very deceptive effort to try to get in here the BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. II 11-17-05

374

1 implication that he had read the Morse Burroughs' blood

2 spattering report. THE COURT:

Counsel, I'll let you try to show

4 whatever you want to show, but my recollection is that 5 the transcript furnished to the witness when the witness 6 gave an answer on cross that counsel sought to impeach,

7 so what you need to do is ask him whatever you want to

refer to the trial

8 ask him and then if he needs to

9 transcript to refresh his memory, he may do so. 10

(By Mr. Robinson)

Dr. Lowry, do you remember Ms.

11 aden asking you on cross examination about your having

12 reviewed a blood spat ter report? 13

Yes.

And do you recall whether - - when you answered her,

15 do you recall - - well, why don' t you tell us what your 16 response was. 17

My response was I reviewed one.

Okay.

1lÂĽ

And it was your response, was it not, that

19 you reviewed only one? 20

Yes.

Now, do you recall that she asked you whether or

22 not - - she read to you some trial testimony in which you

23 were asked whether you had reviewed a blood spatter

24 report prepared by a Detective Finsterwahl? 25

I believe so, yes.

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

375

EVIDENTIARY HEARING, VOL. II 11-17-05 1

And do you recall having said in answer to her

recollection

2 question, and after having had your

3 refreshed by reading the transcript, that you agreed 4 that in fact you did testify at trial that you had read

5 the report by Mr. Finsterwahl? 6

Yes.

And was it your recollection that Detective

8 Finsterwahl' s report had anything to do with blood

9 spatter on Elwin Caler's shorts? 10

No.

Ms. aden -- well,

11 Q Now do you recall being asked by

12 strike that. 13 Do you recall Ms. aden reading to you some 14 trial testimony in which you were asked by the 15 prosecutor, Mr. Mann, whether you were furnished with 16 the report from Off icer Burroughs about his opinion

17 concerning blood spatter? 18

Yes.

THE COURT: You may read that testimony.

MR. ROBINSON: All right, Your Honor.

THE COURT: Then ask him another question.

MR. ROBINSON: Okay, thank you, Your Honor.

(By Mr. Robinson)

Dr. Lowry

MS. aDEN: What page?

MR. ROBINSON: This is Page 1492. BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

376

EVIDENTIARY HEARING, VOL. II 11-17-05 (By Mr. Robinson)

You were asked the following

question, Dr. Lowry, by Mr. Mann at the trial.

You were

3 asked this question:

4 IIWere you furnished information or did you see 5

informat ion in Of ficer Burroughs' report about his

opinìon concerning blood spatters being found on

the underwear of Elwin Caler?ß

8 And at that point. Dr. Lowry. there was an 9 objection posed by Mr. Fields and there was some

10 argument about that obj ect ion, but you didn't answer 11 that question; you never answered that question. 12

That is correct.

And if you had answered that question what would

14 your answer have been? 15

I had not seen the report.

Okay.

Then after this colloquy among counsel about

17 whether or not the obj ection would be sustained - - in l

it/

colloquy Mr. Mann said:

l~ fact, in the middle of the

"You know, Judge,

Ithìnk he's right at thi~

point in time- -," referring to Mr. Fields --

"I'll withdraw that."

He was withdrawing that question.

Do you

24 recall that? 25

Yes.

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

377

EVIDENTIARY HEARING, VOL. II 11-17-05 1

Then the court said, II I sustain the obj ection, II and

2 then Mr. Mann asked you another quest ion, and the

3 question was: "Let me ask it this way, sir.

You were

furnished a report from Officer Morse Burroughs, an

investigative report about what he observed in

connection with this case, true? II

Yes.

That was Mr. Mann's question, and at that time you

10 also answered yes in response to that question? 11

Yes.

And then he asked you:

"Did you use any of the informat~on in that

report in arriving at the conclusion you have

reached?

II Answer:

Was that testimony true for the trial?

Yes.

All right.

No. II

THE COURT:

I think that's all been

21 (inaudible) on cross. MR. ROBINSON: Okay. thank you, Your Honor.

23 Your Honor, I have marked as Plaintiff. s Exhibit 79 a 24 document which is headed 11 Pampa police Department 25 Narrative Section," and

it appears to be a report from

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. II 11-17-05

378

1 Officer Morse Burroughs dated 1-1-94. 2

(By Mr. Robinson)

I want you to take a minute, Dr.

3 Lowry, to review that document and ask you whether that

4 was the Morse Burroughs report that you said that you

5 had said at trial you had seen? MR. ROB INSON :

I will represent by the way

7 that-THE COURT: -Wait, let him look at it and then

9 you can ask the question. 10

Yes, this is the one I received.

(By Mr. Robinson) And do you see anything in that

12 report that refers to a blood spatter analysis of blood 13 spatter on Elwin Caler's shorts? 14

Well, he does mention a bloody particle hand print

15 on the back door, but essentially from what I can gather

16 here -THE COURT: The question is, is there anything

17 l

ii in there about Elwin Caler's shorts? 19

THE WITNESS: No. .

MR. ROB INSON: Thank you, Dr. Lowry. That's

21 all I have, Your Honor. 22

THE COURT: Any re-cross?

MS. aDEN: Jus t a second, Judge.

24 25

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

379

EVIDENTIARY HEARING, VOL. II i1-17-05 RE-CROSS EXAMINATION

1 2

3 BY MS. aDEN: 4

Dr. Lowry, during your cross examination by Mr.

5 Mann about what you were able to refer to in forming 6 your opinion at trial, the obj ection that was posed by

7 Mr. Fields dealt with -- if you recall -- well, let me 8 ask you this.

9 Do you recall what Mr. Fields', the defense

10 attorney's objection dealt with? 11

No.

MS. aDEN: May I approach, Your Honor? Page

13 1492. Line 15. THE COURT: You may.

would you go (By Ms. aden) Starting at Line 19

16 ahead and read, and tell us what Mr. Fields' objection 17 deal t wi th. Now do you recall what Mr. Fields'

18 objection dealt with? 19

I do. That report was not in evidence.

Was he objecting to the fact that the question

21 described the contents of the report that wasn't in 22 evidence? 23

Now as to what he was thinking about, the obj ection

I'm just asking you about the words that he used.

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

380

EVIDENTIARY HEARING, VOL. II 11-17-05 That the document was not in evidence.

I'm not an

2 attorney so I don' t know legalese that --

3 Q Fair enough. 4 A But basically from what I guess the document wasn' t 5 in evidence so he obj ected.

MS. DDEN: with Your Honor's permission

(By Ms. aden) You understood his objection to mean

8 that Mr. Mann was making statements from Officer 9

Burroughs' report in the question.

Is that your

10 understanding? 11

Basically my understanding was that you could not

12 be asked a question based upon that report because it 13 wasn' t in evidence. 14

Dr. Lowry ยก would you read the first couple of lines

15 of Mr. Fie lds' obj ection. 16

Do you want me to read it out loud?

Please.

Okay.

(;~r

"Your Honor: I'm going to object to Mr.

19 Mann making any statements off of Mr. Burroughs'

20 report." 21

(Inaudible)

Okay.

When this happened did Mr. Mann sit back down and paper to talk about?

24 bring you a different piece of

I have no idea.

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

381

EVIDENTIARY HEARING, VOL. I I 11 -17 - 05 1

Okay. You were given some reports before trial

2 review for your testimony; is that right? 3

That's correct.

But when you saw that it was a blood spatter

report, you didn' tread it thoroughly?

A I did not see a blood spatter report.

I read this

7 report. 8 Q Okay. You read a report that was like a printout 9 from Pampa P. D.; is that right? 10

It was the report from Pampa P. D.

I'm sorry, is my question --

It was the report that I have here.

You're sure it was that one?

I did not see another blood splatter report.

MS. aDEN:

THE COURT:

MS. aDEN:

May I

approach, Your Honor?

You may.

I am showing him

Petitioner's

No.

18 75. 19

(By Ms. aden)

And you're sure you didn' t see th~s

20 report? 21

I'm positive I did not see that report.

So when the question was changed just to eliminate

23 the statement that was contained within the report, you 24 interpreted that as meaning an entirely different 25 document? BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. II 11-17-05

382

I really don't understand what you're saying.

When he, being Mr. Mann, when Mr. Mann changed his

3 question, in compliance with Mr. Fields' objection, and 4 omitting from his question the portion that referred to 5 the content of the document that was not in evidence, 6 did you understand him to be referring to the exhibit,

7 Petitioner's (inaudible) or to the exhibit talking about 8 the blood spatter that Morse Burroughs referred to? 9

That exhibit.

And when did you first see that exhibit?

When I was furnished it prior to trial, studying

12 the records. 13

And when was the nextt~meyou saw the exhibit?

14 Was it during the lunch break today? 15

No.

Okay, when was the next time you saw that exhibit?

Just now.

Did you discuss that exhibit with these attorneys

19 at the lunch break? 20

No, I went for a walk.

So you didn't tell them, okay, here's the clear up

22 on the Morse Burroughs' report that I saw and didn' t 23 see? blood splatter A 24 No. All I said is that I saw one

report.

I don't recall the other one until I saw it

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

383

EVIDENTIARY HEARING, VOL. II 11-17-05

1 prior to this hearing. 2

Regardless of what report you saw or who wrote it,

3 were you aware that there waBblood spatter on Elwin

4 Caler's underwear? 5

No.

And if you had been aware, it would not have

7 changed the wording of your testimony, or your opinion

8 about the intoxication; is that right?

9 A That's correct. 10 Q You just feel it would have made your testimony

11 more credible or more attractive before the jury?

12 A I would think so, yes. 13

MS. aDEN:

No further questions, Your

Honor .

14 Pass the witness. 15

MR. ROBINSON: No questions, Your Honor.

THE COURT: May this witness be excused?

MR. ROB INSON: We 1 l, he's not under the rule,

18 Your Honor, and we do intend to keep him around- in case

19 we need him for rebuttal. 20

THE COURT: You may step down.

MR. ROB INSON.:

Your Honor, petitioner calls

22 William Thompson. 23

MS. aDEN:

Your Honor, prior to this wi tness'

24 testimony, I would just like to renew for preservation 25 on the record purposes the respondent's obj ect ions to BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

384

EVIDENTIARY HEARING, VOL. II 11-17-05

1 his testimony in this case. First, our argument is that this is

unexhausted.

There was no attempt made to present this

4 evidence or this testimony before the state court in any 5

form or fashion.

the - - sorry.

Second, - - and that would be under

The second argument is under F.R.E. 702,

7 the expert testimony has to assist the trier of fact in determining a fact in issue.

The fact in issue is only

9 for Your Honor to determine whether there was deficient

performance and whether it was prej udicial.

11 anticipate, based on counsel's disclosure during a

12 telephone conversation last week, that Mr. Thompson is

13 only going to be testifying about whether or not counsel's performance in this case was deficient.

That

15 is the ultimate issue of fact for your decision alone, 16

Your Honor.

We don't think that you need any assistance

17 in determining that issue. And that is supported by (E

1$ 19 20

Povenzano vs. Sinqletarv.

Thank you.

THE COURT: At this time the objection on unexhaustion at this point is overruled.

As far as the

2l expert testifying on the question of ineffective

22 assistance of counsel, as I told you earlier in the 23 telephone hearing, it's going to depend on what his 24

testimony is.

So maybe his testimony is just totally

25 useless to the court or maybe there may be some BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. II 11-17-05

385

1 testimony on areas that the court could hear criticism 2

on.

So with that in mind, the court will hear his

3 testimony. 4

WILLIAM THOMPSON. Called bv Petitioner (Sworn)

5 6

DIRECT EXAMINATION

7 8

9 BY MR. ROB INSON: 10

Good afternoon, Dr. Thompson.

THE COURT: Would you state your name and

12 spell your last name for the record? THE WITNESS: William. Thompson,

14 T-h-o-m-p-s-o-n. THE COURT: Go ahead.

15 16

(By Mr. Robinson) And Dr. Thompson, where do you

17 reside? 18

I reside in California.

And what is your occupation, sir?

I'm a professor at the University of California

21 Irvine Campus. 22

Professor of what?

Criminology, law and society.

Dr. Thompson, I'm go ing to ask you - - I'm going to

25 hand you what' sbeen marked as Petitioner's Exhibit 32, BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

386

EVIDENTIARY HEARING, VOL. II 11-17-05

1 and ask you whether that is a copy of your curriculum

2 vitae? 3

Yes, it is.

And is it a current description of your

5 professional career and background? 6

Yes. It may be missing a few recent publications,

7 but this is basically accurate. 8

Dr. Thompson, what do you teach at the university

9 of California at Irvine? 10

I teach courses for graduate students on legal

11 reasoning and (inaudible) to do scientific evidence and 12 statistics, and I teach undergraduate courses on

13 forensic science. 14

What graduate degrees do you have?

I have a Ph. D in psychology, and I have a JD in

16 (inaudible) . Q

And so are you a licensed lawyer?

1'8

Yes, I am.

As well as a college professor?

Yes.

And what has been the nature of your legal

l/l

22 pract ice? 23

For the last 15 or 16 years lIve been very

24 interested in DNA evidence and how it is has been

25 deve loped and used in court, and I've been involved in a BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

387

EVIDENTIARY HEARING, VOL. II 11-17-05

in all 1 series of cases involv~ng DNA evidence. Actually

2 of these cases as co-counsel for a defendant who was

3 incriminated with DNA testing. 4

Are the cases that you've appeared as co-counsel,

5 or at least some of those cases, reflected on Page 10 of

6 your curriculum vitae? 7

I believe so.

Yes.

8 Q Now in addi tion to your legal practice, which -9 well, let me ask you this. Do you carryon your legal 10 practice at the same time you've been acting as

11 professor at UC? 12

Yes.

In addition to your role as co-counsel in cases

14 involving DNA, do you have other occasions to interact 15 wi th pract icing lawyers who are practicing in criminal 16 law, particularly in cases involving DNA?

Frequently.

Yes.

Describe that for us, if you would, please.

Well, I've been retained as a consultant on quit~ a

20 number of cases by co-defense counsel, who are dealing

21 with DNA evidence. 22

Are these cases in which you appear as counsel of

23 record? No, these are cases in which I worked as a

consul tant, but not counse 1 of record.

Generally I

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

388

EVIDENTIARY HEARING, VOL.. II 11-17-05

counsel of record 1 normally work as a consultant, and as

2 just because being counsel of record tends to interfere

3 with my academic work at the university, but I.ve 4 probably worked in over a hundred cases where I worked 5 as a consultant to a defense lawyer to help educate the

6 defense lawyer about DNA evidence, and help in the 7 decision making process about how to effectively deal with DNA evidence at trial.

I consul t informally with

9 lawyers all the time, because I've written quite a few 10

articles in this area.

I get phone calls probably

around the country who are defending

11 weekly from lawyers

12 criminal cases in which DNA evidence is involved, with 13

ques t ions.

They call me for advĂŹce on what would be the

14 proper procedure, how to effectively deal with that 15 evidence. 16

Dr. Thompson, let me hand you Plaintiff's Exhibit

17 33, and ask you if that is an article that you have (,

1~ co-authored on the subj ect of DNA? 19

Yes, it is.

And is that article - - was the intended audience or

21 that article lawyers who practice criminal law and cases

22 in which DNA is an issue? 23

Yes.

Let me hand you what has been marked as Plaintiff's

25 Exhibit 34, titled IIEvaluating Forensic DNA Evidence, BETTY TATE, 3101 TOWNBLUFF DR. #9231 PLANO, TX.972-596-9442

EVIDENTIARY HEARING, VOL. II 11-17-05

389

1 Part 211 and ask you whether that is another article

2 (inaudible) for lawyers who practice in the DNA area?

Yes.

article.

It's basically an extension of the same

This article is published in technical issues

5 of a journal called liThe Champion, II a major professional criminal defense lawyers.

6 journal for

Now let me hand you what has been marked as

Plaintiff's Exhibit 35.

Is that another article for

9 lawyers on the subj ect of DNA? 10

Yes.

THE COURT: (Inaudible).

THE WITNESS: It has not been published yet.

THE COURT: (Inaudible).

THE WITNESS: I believe it's going to come out

15 either in December or January. 16

(By Mr. Robinson)

Plaintiff's Exhibit 36 is a

17 fairly thick document that's on ABA letterhead, American is Bar Association letterhead, and it. s to the Cri~inal 19 Justice Section Counsel from a Paul Giannelli, Reporte"r,

20 Task Force on DNA Evidence. Are you involved in some way in this task

22 force on DNA evidence for the American Bar Association? 23

Yes, I am.

Tell us what your involvement is again.

Well, this is an effort by the American Bar

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

390

EVIDENTIARY HEARING, VOL. II 11-17-05

1 Association first to determine whether there should be

2 national standards for DNA evidence in the united 3 States, and second, once it was determined that there 4 should be such standards, to draft those standards, I

5 was involved in the first phase of the process. The ABA 6 initially created a study group to look into the issue

7 of whether the standards on DNA evidence would be

8 helpful to the profession.

9 I was appointed as a reporter for that study

10 group, which meant that I presided over meet ings and 11 drafted a report of the commi ttee on the need for

12 professional standards on DNA evidence, and thereafter 13 as a resul t of that report the ABA appointed a task

14 force, whose mission was to actually draft those

15 standards, and I was also appointed to be a member of

16 that task force and participate in the drafting of the 17 standards that - - the proposed standards that appear in 1~ the document that youl re referring to. l

How many members are on this task force?

Well, the names are listed.

I believe there's

21 about a dozen, maybe i2, maybe ten. 22

Are these task force members only on the criminal

23 defense side of things, or are they - - is it a balanced

24 task force? 25

No, it's a balanced task force.

There were some

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. II 11-17-05

391

1 prosecutors and people from attorney general's offices.

2 One state attorney general was included and there were

3 some people who were on the defense side and some

4 judges, and the final group was academics~

5 Q And how long have you been involved in this process 6 of this ABA task force process? 7

The task force for drafting the standards took

8 place over about a two and a half year period, and the

9 study groups before that was about another year and a

10 half before that, so five years of work. 11 Q All right. Dr. Thompson, let me ask you whether in 12 your work in teaching and advising other lawyers on how

13 to deal with DNA evidence, and in your work on the ABA

14 task force, whether you've been able to observe

15 professional standards for reasonable performances as it 16 evolved in this area of DNA? 17

Yes, I believe I have.

And would that answer still be true if I asked you

19 to go back in time to 1994 and 1995, which was the ti~e

20 period that this case was tried and prepared for 21 trial - - I think it was that t~me that the ABA task

22 force hadn' t even been a gleam in anybody's eye at that

23 point. 24

No. but I was actively involved in working in the

25 area as a lawyer and as a consul tant . BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

392

EVIDENTIARY HEARING, VOL. II 11-17-05

1 Q In fact, how long have you been actively involved

2 in the area of DNA? 3

Well, I first started studying DNA evidence in 1985

4 or 1986, and I first worked on a case I believe, in 5 1987, so from the very beginning of DNA evidence. 6

And how long have you been involved in teaching and

7 advising other lawyers on DNA evidence? Oh, since the -- I've given quite a number of

professional presentations on this.

I believe the first

10 ones were in 19 -- the first one was in 1987, and since

11 then I've frequently spoken to groups of lawyers and

12 judges about these questions. 13

So by 1994 and 1995, how many years have you been

14 actively involved in working with criminal defense

15 lawyers on DNA? 16

Oh, six or seven years by then.

In giving your testimony here today, Dr. Thompson,

l~/

1~ I want you to assume in all of my questions that I am

19 asking you for your opinion as to professional standards 20 as they may have existed in 1995, and obviously evolved / Can you do that for us?

since that time.

Yes.

Even if I don' t say every time 1995, can you make

24 that assumption? 25

I'll try to keep that in mind.

BETTY TATE, 3101 TOWNBLUFF DR. #923. PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. II 11-17-05 1

393

All right. Based upon you experience and your

2 observation of counsels' performance in the area of DNA 3 evidence, are there any minimum criteria that reasonable

4 defense counsel take into account deciding whether to

5 conduct DNA testing? 6

You mean on untested items of evidence?

On untested items of evidence, yes.

Yes.

There's a - - I call ita standard analysis.

9 It's what's typical about defense lawyers think about

10 this problem. It's a difficult problem. It's one that 11 comes up frequently and I've participated in discussions 12 in that process in many, many cases, and there .are a

13 series of factors or considerations that defense lawyers

14 almost universally go through in trying to make these 15 decisions that involve balancing various considerations. 16

Can you describe what those are?

I could.

I t might

it might also be helpful if I

18 could draw a diagram of it? 19 MR. ROBINSON: Any objection to that, Your

20 Honor, if he used the paper over here? 21

THE COURT:

certainly, you can use a

22 demonstrative evidence. We need to move the easel out a

23 little bit. 24

MR. ROB INSON: Okay, why don' t you go ahead.

THE COURT:

I s there a marker over there?

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

394

EVIDENTIARY HEARING, VOL. II 11-17-05

Yes.

MR. THOMPSON:

When defense lawyers face this question, whether

3 it's going to be defense tested evidence, there are a 4 series of three questions that they pose, and the answer 5 of whether to test or not depends on how the answers to

6 those questions come out.

7 The first question would be does the testing

8 have a potential to help the client, and if I can -9

time.

(By Mr. Robinson)

Sure, just go ahead.

Take your

Wri te legibly if you can.

(wi tness standing and drawing on easel)

Is there a potential

That's the first question.

that testing would help the client.

answer to that question is "no."

decision tree.

the decision would be "don' t test."

In many cases the

Just to show the

i f the answer is" no," then t of course I call this the 11

17 "standard analysis" and this the "reasonable decision.

1g So if on consideration of the evidence, then 19 the defense lawyer thought that either that it's ..

unlikely that any results would be achieved through

21 testing, or the results, whatever they were, could not

22 be helpful to the defendant, then "no testing" is the 23

right option.

If on the other

hand the analysis of the

24 case might have at least indicated that yes, the testing 25 could potentially help the client - - I'll draw a line to BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

395

EVIDENTIARY HEARING, VOL~ II 11-17-05

1 indicate lIyes II - - that then leads to a second question. 2 You wouldn't automatically test just because you think

hurt ,you' d also have to consider whether the 4 testing has a potential to harm the client, so I think 3 it could

5 the second consideration that I had was (inaudible).

6 Virtually every defense lawye~ goes through this is to 7 ask" does test ing have the potential to harm the

8 client?1I 9 And there will be some cases in which testing

10 has some potential to help the client, and testing is 11 basically a no-lose proposition, but therel s little to 12 no potential harm, so if the answer is no, yes, there's 13 a potential to help and no, there's no potential to harm

14 then the decision would be test. (Inaudible) Finally - - I hope this is helpful.

15 16 answer is yesi testing has a

I f the

potential to help, but also

17 has a potential to harm, that i s the hardest case. Let's 18

see if I can give you an example.

The second que.stion

19 is also IIYes." Then the analysis has to be a weighing 20 of the potential to harm,

so "do potential benefits

21 outweigh potential harms?" The answer to that question 22 is lIyes, II then again you would test, and if the answer

23 to that question is IIno,1I then we don't test. 24

I think this is a fairly simple way to

recapture this thought process (inaudible).

It's

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. II 11-17-05

396

1 basically a three-step decision tree. 2

Perhaps you could give us an example of the kind of

3 case where you're the defense THE COURT: Are you going to wri te anymore on

5 the chart? MR. ROBINSON:

I don' t think he's going to

7 wri te anymore on the chart. THE COURT:

8 9

(By Mr. Robinson)

Go ahead and take your seat.

Could you give is an example of

10 the kind of case - - I'm just asking for a hypothet ical 11 case now, in which testing might not have the potential 12 to help the client, so in that case you would do what?

13 A Well, if the circles were such that it appeared it 14 was very unlikely that testing would produce any results 15 then I think it, of course, would be a waste of time.

16 There's no duty to the defense lawyer to waste time and

17 resources. ff

1l Perhaps the more common example would be 'where

19 the result of the testing, regardless of whether -.

there's some results of testing that could harm the

21 client, and no result that are

likely to help the

22 client, so for example, let's suppose a crime occurred 23 in a hotel room, and the defendant - - defendant claimed

24 that he had never been in that hotel room, and they run

25 test samples from the hotel room, well, if you tested BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. II 11-17-05

397

1 those samples and found the defendant's profile, that

2 has the potential to harm the defendant. On the other 3 hand, if you tested those samples and found someone

4 else's profile, that would not help the defendant 5 because it i S not a surprise that other people would have

6 been in a hotel room, and so in a case like that there's

7 little or nothing to be gained from testing, and 8 potentially something could be lost if you tested the

9 wrong way.

10 So that would be an example of where I think 11 the consensus among defense counsel would be that it

12 would be a reasonable decision not to test, if you had

13 circumstances such as that. And how about an example of a case that testing

might have - - it might be a potent ial to help the

client, and

(inaudible) -- there would be little harm or

17 no harm to the client.

-18 A Well, that would arise if -- if it were possible to 19 do the test ing without the state, or without the 20 prose

cut ion finding out about the results, then there

21 would be no potential harm by the testing, or if you had 22 a situation where the results could on~y belp you 23 know, if the results go one way they'll help, if they go 24 another way they really won't hurt, so you take an 25 opposite situation of testing for DNA in a place where BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. II 11-17-05

398

1 the defendant lived, or where the defendant's DNA would

2 be expected.

3 I worked on a case not long ago like that 4 where a man was accused of killing his wife. The man 5 admi t ted that he had had intimate contact wi th his wife

6 in the period before - - before she was killed, but she was killed by someone else. The

7 claimed that

8 question is should the defense lawyer test untested samples from this woman's body.

In a situation like

I see little or no potential harm to the client.

10 that,

11 If testing is done in that circumstance and the DNA test

12 result matched the defendant, but that's simply an

13 expected result because he's already admitted, and it's 14 expected that samples from his wife will match with his 15 DNA.

16 On the other hand, if the results went the 17 other way and found DNA profiles of an unknown rr

1~ individual, that could be very helpful to the defense in 19 supporting their theory of another killer, and therefo"re 20 I think that would be an example of a situation where if

21 there's a strong imperative for testing, then defense 22 counsel generally would consider it unreasonable not to 23 test in a circumstance like that. 24

Now Dr. Thompson, is there anything you wanted to

25 say in addition about the decision tree or construct BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. II 11-17-05

399

1 here in at least abstract terms of how to go about

2 making a decision about testing. MS. aDEN: Judge, I'm sorry to interrupt but

4 I i m going to have to obj ect to the relevance of the

5 testimony of this witness discussing some kind of 6

hypothetical decision tree.

I'm also going to obj ect to

7 the question as calling for a narrative answer, and I

8 object to continued testimony of this witness at all

9 because I think what he is describing is fairly

10 intuitive and is not of any help to the court. It just 11 describes the same decision tree any lawyer goes through 12 when deciding any strategic decision in any elements of

13 his representation of his client. 14

THE COURT: Where are we?

MR. ROBINSON: Your Honor, I wi II withdraw

16 that-17

THE COURT: Are we fixing to get into ~-

MR. ROBINSON: My next question was gbing to

19 ask him to turn to this case. THE COURT: All right, with that

21 representation, proceed. 22

(By Mr. Robinson)

Let's go to this case, Dr.

23 Thompson.

24 Were you present in the courtroom when Harold

25 Comer testified here yesterday? BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. II 11-17-05 1

Yes, I was.

Did you hear his dĂŹrect examination and cross

400

3 examination on his decision to not do further DNA

4 testing of evidence that had not been tested? 5

Yes.

Based upon (inaudible) prevailing professional

7 standards at least since 1995, was it reasonable or 8 unreasonable in your opinion for trial counsel ĂŹn this

9 case not to have asked for DNA testing?

10 A In my opinion it was unreasonable.

11 Q For what reason? 12 A Well, based on my understanding of the facts of 13 this case and the decision process that's described by

14 Mr. Comer, I believe that the testing in this case would 15 fall into the category where testing has a potential to

16 help the client, but testing has little or no potential 17 to harm the client, so the circumstances reflected in rr

1~' the (inaudible) second where the strong consensus would

19 support testing in this case, so that would be my

20 analysis (inaud~ble). 21

Wel l, why don' t you - - I want you now

22 specifically -- applying what you know about the facts 23 of this case, I want you to explain to the judge why it

24 is that line two on your decision tree and the arrow

25 pointing over to the right for resulting in testing BETTY TATE, 3101 TOWNBLUFF DR~ #923. PLANO. TX. 972-596-9442

401

EVIDENTIARY HEARING, VOL. II 11-17-05

1 material, why did that apply?

All right. In answer to your first question, 3 testing have the potential to harm your client, it A

does

4 seemed to me that since Mr. Comer said the main defense 5 theory was that another unknown person commit ted the

6 crime, evidence of an unknown person's DNA at the crime

7 scene or associated with any of the victims or their 8 bodies, would have been very helpful with regards to

9 supporting that theory, so I think very clearly DNA provide evidence

10 testing had at least the potential to

11 that would

have been very helpful to the defense.

12 As far as whether testing had the potential to 13 harm the client, in this case involving the trial of Mr. 14 Skinner, based on what I heard I'd think it had little

15 or no potential to harm the client first because I heard 16 the prosecutor, Mr. Mann, say that he would have allowed

17 testing pursuant to a testing regime under which the

18 defense could test whatever they wanted, confid~ntialJ

19 without the result even being known to the state. The 20

prosecution wouldn't have known.

It was basically a~

21 free look at the evidence. 22

Secondly, in this case, because as I

23 understand it ,Mr. Skinner lived in the residence where 24 the crime occurred, and was actually -- he's admitted to

25 being present at the scene of the crime. The presence BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

402

EVIDENTIARY HEARING, VOL. II 11-17-05

1 of his DNA in the house where he lived or even on the

2 body of the victims with whom he lived, would hardly

have been an unexpected finding.

It would easily be

4 what we would expect is consistent with innocence. On the other hand, as I said, finding somebody

6 else's DNA, a stranger to the house, as you put it,

7 would be very helpful, so the circumstances of the case 8 are such that - - or at least many of the untested items

9 that I heard about resulted in -- if the results showed

would 10 more DNA consistent with Mr. Skinner, they simply

11 have been cumulative of what was already known, which is

12 that Mr. Skinner was present. On the other hand, if the 13 tests went the other way and showed a DNA profile 14 consistent with

another person, particularly consistent

15 with a person who was an alternative suspect, then that 16 could be enormously helpful.

17 So I see very little downside and a l,

1 ~ substantial upside to testing. 19

Dr. Thompson, did you hear Mr. Comer say yesterday did not explore with the district attorney what

20 that he

21 his options were - - or how he might be able to go about

22 getting materials tested? 23

Yes, I made note of that.

Was that unreasonable or reasonable on his part to

25 not explore that subj ect? BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. II 11-17-05

Well, in my opinion it's unreasonable, or perhaps I

403

2 should say it's not consistent with reasonable standards of practice.

There is an - - it's generally felt that

4 there is an obligation that's placed on defense lawyers 5 to investigate the case, and that investigation entails 6 investigat ing possible options as far as how to proceed

7 with the investigation, how to conduct the defense.

8 There's so many untested biological specimens from a 9 crime scene, and it must have been an issue that was

think , any reasonable defense attorney would

10 on - - I

11 certainly have been thinking about testing of those 12 items, and I believe that in order to effectively assist 13 the client, the defense attorney should have at least

14 explored with the district attorney the circumstances 15 under which that testing could occur.

16 And as I said, whether the testing could have 17 become conf idential or not is .a very important factor if 18 it's considered with regard to whether the testing has a

19 potential to harm the client, so for the defense 20 attorney not even to have gone to the effort to explore

21 that avenue, it's not what I -- it's not what I would 22 expect to see among - - it's not what I have seen among

23 defense lawyers, and I think that falls below the normal of practice.

24 standard

Were you here yesterday when Mr. Comer said - - and

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

404

EVIDENTIARY HEARING, VOL. II 11-17-05

1 I'm paraphrasing his testimony of the evidence - - that

2 one of the reasons he did not test is because the - - if 3 he did do testing of the DNA material, he was concerned

4 that the district attorney has the same materials and 5 therefore the district attorney would just run his own

6 tests and know the results? 7

Yes, I heard that.

Is it in your opinion or was it in your opinion in

9 1995 reasonable or unreasonable for the defense counsel

10 to rely upon that rationale in order to reach the 11 decision not to conduct DNA testing (inaudible)? 12

I do not think that was reasonable ,and I did not Particularly in 1995, I

13 find that argument persuasive .

think DNA was much more novel at that point.

I think

15 back in that era any DNA evidence at all would have been

16 quite impressive to the jury, and that might be i 7

argumentative.

I doubt that the jury would fault the

itf government for not having anymore DNA evidence under

19 those circumstances, and to the extent that the defens"e 20

pressed that argument of why didn't the government do

21 more testing, I think it's likely that the jury would 22 tend to ask themselves well, why didn't the defense do

23 more testing and draw adverse inferences as a result, so 24 I found - - my assessment is that most defense lawyers

25 would not have found that trial tactic that Mr. Comer BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. II 11-17-05

405

1 described to be a very- - they would not have expected

2 that to be a very effective tactic, and so to give up 3 the opportunity to potentially find extremely helpful 4 evidence in order to preserve - - there's that kind of

5 tactic that would not be viewed as a reasonable choice. MR. ROBINSON: All right, Dr. Thompson. Those

are the only questions I have.

I appreciate your

8 testimony, and I'll pass the witness.

9 I'd like to introduce these exhibi ts, if I 10 may. Your Honor, I move the admission of Plaintiff's 11 Exhibit 32, Dr. Thompson's curriculum vitae. MS. aDEN: The CV I have no problem wi th it.

13 It's the other article. 32 is admitted.

THE COURT:

MR. ROBINSON:

I move the admission, Your

16 Honor, of Plaintiff's Exhibits 33,34 and 35, the three 17 articles, and I move the admission of Plaintiff's

18 Exhibit 36, I believe, the ABA standards. MS. aDEN: My objection to 33, 34 and 35,

20 which are Mr. Thompson's articles, are relevance and

21 hearsay. 22

MR. ROBINSON: Your Honor, we offer these

23 articles only to demonstrate that Dr. Thompson is -say . 24 we're not offering them for the truth of what they

25 We offer them to demonstrate that Dr. Thompson is very BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. II 11-17-05

406

1 familiar with the area of DNA testing. MS. aDEN: Then it's cumulative, Your Honor.

That's already set out in the CV.

It's irrelevant in

4 this case. We'll grant that he's published. We'll 5 stipulate that, no problem. 6

THE COURT: Obj ection sustained.

MR. ROBINSON: Let me just check, Your Honor,

8 to make sure that I've done all...

9 (Short Pause)

THE COURT: What about 36?

MR. aDEN: My obj ection to that is hearsay as

12 well, Your Honor. THE COURT:

I don't know if I see a problem

14 wi th hearsay but these standards weren't written until

15 2005... MS. aDEN: That was my next obj ect ion, Your

1 7 Honor. l,

1~:

THE COURT: The evidence where he feels it

19 would be ineffective in 1995 -- I don't know that thes"e 20 ABA standards would be relevant to that. 21

MR. ROBINSON: All right, Your Honor, we'll

22 withdraw that one. Thank you. 23

MS. aDEN: And Judge, may I request before we

24 begin cross examination a two minute recesS so I can use 25 the restroom? BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972~596-944~

EVIDENTIARY HEARING, VOL. II 11-17-05

407

THE COURT: Five minute recess.

(Short Recess)

THE COURT: You may cross.

CROSS EXAMINATION

5 6

7 BY MS. aDEN: 8

Professor Thompson, my name is Georgette aden from

9 the Attorney General's Office. We haven't met before

10 this, have we? 11

No.

First i'd like

to find out what documents or other

13 materials did you review to prepare for your testimony 14 today, or to form your opinion in this case? 15

Are you referring specifically about the reasonable

16 assistance of counsel part or -17

Anything that you reviewed or looked at to prepare

18 your testimony or to form your opinion in this~ase. THE COURT: Would you pull the microphone over

20 to you? 21

(Inaudible)

22 DNA testing that were introduced

I looked at some of the reports on at trial, and some

23 transcripts of trial testimony about DNA evidence. I"

24 looked pretty extensively at laboratory notes and 25 reports associated with the post conviction DNA testing BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. II 11-17-05

408

1 that was done. 2

Would that be nuclear and mitochondrial or just

3 nuclear? A

Both, and... what else... that's about it. And

5 then, of course, I relied pretty heavily on what I heard 6 yesterday in the testimony from the trial prosecutor and

7 the defense counsel. 8

Anything else?

Nothing comes to mind right now.

Did you .review Harold Comer's affidavit?

No.

Did you review Ken Fields' affidavit?

No.

Did you review any of the police offense reports?

No.

Did you look at the crime scene video?

No.

Did you read or look at the video tapes of either

(r 1 ยกj~

19 of Henry Skinner's confessions? 20

No.

Are you aware of their contents?

Only from what I heard here yesterday and today.

Did you look at any of the crime scene photographs?

No.

Did you look at any of the physical evidence?

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX.. 972-596-9442

EVIDENTIARY HEARING, VOL. II 11-17-05 1

No.

Did you read any of the blood spatter reports?

No.

Okay.

409

So you are basing your opinion, if I

5 understand you correctly, on the testimony from Harold .

6 Comer and Ken Fields here in court today, and from -7

Yesterday.

That's what I meant, thank you. And on the DNA

9 testimony adduced at trial, the DNA evidence introduced

10 at trial, and the post conviction DNA testingJ and

11 that's it? 12

Yes.

As a practicing attorney you are familiar with Rule

14 26 regarding discovery, are you not? 15

Is this the federal rule?

Yes.

I couldn't quote it to you right now.

Okay, but you're at least somewhat familiar with

19 it? 20

I'm so r ry .

It's a rule that goes into great detail talking

22 about the kinds of things that are discoverable, such as 23 expert reports before testimony. 24

Yes.

And your curriculum vi tae does not contain the

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

410

EVIDENTIARY HEARING, VOL. II 11-17-05

1 names of any of the cases you've testified in; is that

2 right? 3

I believe it does.

I'm sorry, People vs. Dixon, but other than that it

5 just says the locat ion and the year. 6

I believe it mentions the Lusky case in Australia.

Okay. But you've testified in cases other than

8 Dixon and Lusky, haven't you? A

wi th regard to DNA evidence, I believe only one

10 other. 11

In the meantime that's your area of expertise?

I have testified - - yeah, with regards to other

issues, I have testified to some other i.ssues.

14 believe my CV has a list of 15

Of every case that you've testified as an expert

16 in? 17

No, but it describes the nature of the testimony.

But it doesn't, for example, give enough 1l Q 19 information that an attorney for the other side wOuld be 20 able to find the transcript of your testimony, does it? /

No.

Okay. You didn't --

If you're interested I'd be happy to provide them.

It's not your job. Now you didn't file or write a

25 report in this case, did you? BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. II 11-17-05

411

No.

In fact, have you written anything regarding your

3 opinions in this case that you referred to as you've

4 been testifying here? 5

No.

I sort of made some notes along the way but I

6 did not refer to those for testifying. 7

Now you did say that you do far more work as a

8 consultant than as counsel of record, didn't you? 9

Yes.

And as a consultant are you including in that your

11 role as an expert witness? 12

I suppose, although I have not testified as an

13 expert witness direct very often. 14

How many times have you testified as an expert

15 witness? 16

We 1 1, wi th regard to DNA evidence I be 1 ieve it's

17 been three times, so this would be the fourth. 18

But here you're not -- I'm sorry, if I

19 understand -20

Do you want me to address other issues?

Yeah, hang on just one second because I thought of

22 something. Are you telling the court here today that 23 you are testifying as a DNA expert or are you testifying 24 as an expert on effective representation? 25

Well, I view myself as testifying as an expert on

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. II 11-17-05

412

1 effective representation of counsel with respect to DNA

2 evidence. 3

So you're not here to testify that, for example,

4 DNA testing was done incorrectly in this case, or that

5 the results were affected by some contaminate or

6 anything else like that? That's not what you've been

7 called to testify on here? A

I have had some conversations with counsel for

9 petitioner about some issues that were within my involved those issues, but my

10 expertise that

11 understanding is that if I am called to testify about 12 those issues it would be as a rebuttal witness. 13

But up to his point you are here to tell the court

14 from you position and opinion what effective 15 representation would be? 16

Yes.

How often have you testified as an expert in

1~ ineffective assistance of counsel cases? 19

This would be the first time.

So you have never previously been certified as an

.....

21 expert by any court in effective representation of 22 counsel? 23

Cert i f ied by a court? No, I have not.

And how often are you counsel of record for a

25 criminal defendant? BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

413

EVIDENTIARY HEARING, VOL. II 11-17-05 1

Oh, I think total over the last decade or so, about

2 six times - - six or seven. They're listed --I believe 3 those cases are listed in my CV. 4

Right. And I believe you said that being a trial

5 attorney interferes with your academics? Would that be 6 your teaching position and your consultancy?

7 A Well, yes.. The University of California is happy 8 to allow me to engage in professional practice so long

9 as it doesn't interfere with my obligations to the

10 university to teach classes and carryon my scholarly 11 work. 12

So you would consider your scholarly work and your

13 teaching to be your primary occupation and your primary

14 focus? 15

Yes.

I noticed that you have written quite a few time as

17 articles certainly that takes up some of your

18 well. 19

Lots of it, yes.

20 Q When was the last time you were the lead counse~ 21 for a capital murder defendant from say start to finish? 22

I've never been lead counsel for a capital murder

23 defendant. 24

When was the last time you were second or third

25 chair for a capital murder defendant from start to BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. II 11-17-05

414

1 finish? Let's see, I was co-counsel in the Cuff case.

Mr.

3 Cuff was the defendant in a federal court in New York.

4 He was accused of capital murder, and I was co-counsel

5 for him. 6

Was that from start to finish, or was that for a

7 motion? A

Well, no, it was -- the case was ultimately

9 concluded through a negotiated plea, and so I was --I

10 should tell you my role in the case, working with two 11 other counsel, was to deal with the DNA issues. 12

So other attorneys were primarily responsible for

13 potentially non DNA issues that came up in the case? 14

Oh, absolutely.

And you were going to deal with the DNA?

Yes.

What other cases were you second or third chair

if counsel for a capital murder defendant from start to

19 finish? 20

Oh, I'd have to think back as to which of these

21 cases were capital cases, and -22

Or even murder.

The last case I tried, which was in Los Angeles .

24 County, was a murder trial. 25

And when was that?

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENT IARY HEARING, VOL. I I 11-17 - 05 1

415

That was - - came to trial in December or January --

2 December of 2001 and January of 2002.

3 Q And you were second chair, third chair? 4

Second chair, although again my role was primarily

5 to deal with DNA. 6

So if I understand your descriptions so far, when

7 you are 'counsel for a criminal defendant, you are not

8 their primary counsel, you are there solely to deal with

9 DNA issues?

10 A Yes. 11 Q So if I'm understanding you correctly, you have 12 never been responsible for defending a criminal - - when 13 I say responsible, I mean

14 A Solely responsible? 15 Q Solely responsible, start to finish, you deal with 16 everything from, you know, DNA to police officer

17 wi tnesses, to eye wi tnesses, the whole gamut? That's correct. A 18 19

And you do testify in quite a few different areas;

20 is that right? 21 A I have over my career. 22 Q You have testified - - you consider yourself to be 23 an expert in social science methodology? 24

Yes, certain aspects of it, yes.

And you consider yourself an expert in jury

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

416

EVIDENTIARY HEARING, VOL. II 11-17-05

1 selection procedures? A

I have published some research on jury selection

3 procedures in capital trials that I've been asked to

4 testify about once or twice. 5

But you don't consider yourself to be an expert

6 when you testify about those procedures in the trial? A

No, I would never testify about something that I

8 didn't consider myself an expert in. 9

So you do consider yourself to be an expert in jury

10 selection procedures? 11

I wouldn't say I'm an expert in jury selection

procedures generally. I do think that I am an expert on 13 the effects of death qualification procedures in capital

14 trials on the composition ofa jury, which is something 15 that I've done research on and published studies on, and

16 so I am an expert on that issue. Q

How many capital murder juries have you selected?

lĂś

I have not selected any myself.

And you also consider yourself to be an expert in

statistical interpretation of DNA results?

Yes.

You are a busy man.

force and drafting some professional standards.

17 (, tÂż:

You were mentioning the task

Tha t ' s

24 the ABA task force, right? 25

Yes.

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. II 11-17-05 1

417

Were there any forensic scientists on that task

the first phase of drafting, of the group?

2 force, or in

Yes.

And who were they?

Robert Sheller, who was the head of the Office of

6 the Chief Medical Examiner in New York, their DNA 7 testing facilities, the people who did the DNA testing

8 following the World Trade Center disaster. 9

Who else?

Betty Layne DesPortes, who is also a lawyer, who is

11 a forensic scientist as well. 12

Anybody else?

That's are the only two forensic scientists.

So you don't consider yourself to be a forensic

15 scientist? 16

I gue s sit depends on what - - I gue s sit depends on

17 what" itU means to be a forensic

scientist . Certainly I

18 have published articles in journals -19

That's not my quest ion. That's fine.

I'm sorry - - I don' t mean to quibble with you.f

just Q Fair enough. Those professional standards that

you're describing from the ABA, are those professional

24 standards ideal, are they minimums? Which are they? 25

They are intended to be best practice standards.

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

418

EVIDENTIARY HEARING, VOL.. II 11-17-05

believe that they are a bit aspirational.

I think they

2 are intended to be best practice standards.

3 Q Would it be possible for someone not to follow all 4 of those standards, or meet all of those standards and

5 still be effective under Strickland? 6

Probably.

Were those standards adopted or discussed by the

8 forensic community before the ABA proposed them, to your

9 knowledge? 10

No.

Have they been submitted to the forensic community

12 for discussion since the ABA proposed them? 13

The - - and I might should clarify the ABA has --

14 they're still subject to discussion at the ABA so they

15 have not been officially issued by the ABA as yet. 16 They're still proposed standards. Q

Correct.

And other than involving forensic scientists like

Dr. Sheller, in drafting the standards I'm not

17 !:(

well',

20 actually I take that back. When the standards were

21 issued out of the task force, at that point, before they the ABA, at some 22 went to the standards' committee at

23 point in the process copies of these draft standards 24 were circulated to a number of professional 25 associations, and that would include the AAFS, American BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. II 11-17-05

419

1 Association of -THE COURT: Since these standards are not in

3 evidence, what's the relevance here? I'll move on, Judge.

MS. aDEN:

THE COURT: All right.

(By Ms. Oden) The first time the FBI used, if I

7 recall correctly, mitochondrial DNA evidence in a trial was Tennessee vs. Ware.

Is that your understanding?

That's what I've heard, yes. 10 Q And that was in 1996? A

11 A That's my understanding. 12 Q So back in 1995 you would agree with me that this 13 is, as you said, very novel?

14 A Mitochondrial DNA evidence was novel at that point 15 but there were a number of other technologies for

not .

16 looking at computer DNA that were

But actually what you said earlier was that

back in

would have been pretty novel for a jury to hear

18 1995 it

19 DNA evidence; is that right? 20

Yes. What I meant, if you'd like me -- if I may

21 clarify-22 Q No, that's okay, but thank you for asking. You'll 23 get a chance with your attorney. I appreciate it. These ABA standards that we talked about are

24 25 one issue,

but when we talk about the standards that we

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

420

EVIDENTIARY HEARING, VOL. II 11-17-05

1 hold an attorney to, those standards, those 2 expectations, those are not a set body written down

3 somewhere in a document, are they? 4

That's correct.

And they're not really quantifiable in the sense

6 that you measure how many hours an attorney spends and

7 that's enough; is that right? 8

I agree with that.

And they're not measurable in a sense that if you

10 get a not guilty, it was effective, and if you get a

11 guilty, it's ineffective? 12

That would not be the metric by which you'd measure

it.

I don't -- I certainly think you could - - I think

that there are indices that one could apply.

If it

15 would be measurable it would be relevant, but whether

16 the verdict is guilty or not guilty - ~ Q

Is not the metric?

fi 1 รถ"

Would not be - - yes.

And it's hard to quantify the changes in those

17 l

standards, or those expectations of defense at torneys as

~hey change over a short period of time, wouldn't you

agree?

.....

23 A I would agree. 24 Q Because there isn't a document to look at and say, 25 oh, there's a new law passed, so there's new evidence. BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. II 11-17-05 1

Correct.

So it's actually fairly difficult to say with

421

3 precision what the standard was for an attorney in 1995, . ,"

4 isn't it? 5

Well, you just have to rely on your impressions

6 from having talked to many people, and getting involved

7 in discussions, which is what I've done. 8

And when you have that impression and when you form

9 tha t impression and express it to the court, are you

10 basing it on what you talked about in 1995? 11

I tried to.

And excluding all considerations of what was talked

13 about in 1996. Pretty tough, right? 14

Well, although as you say, memory is fallible and

15 it's difficult to say with precision, you know, what 16

happened when.

I can assure you I did my best to do as

17 Mr. Robinson asked me as to the standard in 1995. 18

And I don't mean to imply that you didn' td.o your

19 best. 20 Now, Strickland recognizes a fairly wide 21 latitude of acceptable strategic decis ions for a defense

22 attorney; isn't that right, or for any attorney? 23

That's my understanding, yes.

So there really isn't one right answer?

Well, I certainly think that there can be - - there

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

422

EVIDENTIARY HEARING, VOL. II 11-17-05

1 are some choices that a defense lawyer would make that 2 it would be universally regarded as the wrong answer. 3

Sure, but it's possible in a given situation to

4 have several right strategies, or tactical choices made

5 by an attorney? A

Well, although there's a broad latitude for what's

7 acceptable and not acceptable, I think there's - - the

8 two are intolerably different and distinguishable. 9

Of course.

Excluding

Perhaps I'm not being clear.

10 all choices that lead to ineffective representation, so

11 we're just talking about the world of effective there are certainly more than one

12 representation,

13 strategic choice available to an attorney. Oh, absolutely. There are many ways to A 14

15 effective, yes. 16

Okay.

The three questions that you put

up on the

there as a standard analysis, those are pretty

17 sheet rยก:

lรถ~

intuitive ways of making a decision about what to do in

a case, aren't they?

Yes.

I - - what I was struggling to do was kind of

21 crystallize, you know, what I've observed as the thought

22 process of something that was intuitively easy to 23 understand. 24

And you said that you observed that in many

25 at torneys as they went through this process on their own BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. II 11-17-05

423

thought process; is

1 and as they invited you into their

2 that right? 3 A Right, and as I thought about what - - you know, the 4 question Mr. Robinson asked me is what is it that

5 defense lawyers think about doing, and I tried to

6 capture that in this intuitive easy to understand

7 decision tree.

8 Q That's pretty much the same decision calculus any 9 attorney uses when deciding whether or not to introduce

10 a certain piece of evidence. 11

Probably one similar, yes.

Whether or not to pursue a certain line of cross

13 examination questions. 14

I would think so, yes.

Whether or not

Yes.

Whether or not to make a certain argument in

to introduce a certain witness?

18 closing? 19

Probably.

Whether or not to pose certain questions in voir-

21 dire, or voir dire, depending on what part of the

22 country you're from? 23

Could well be.

So that in and of itself isn't unique to this

25 decision of whether or not to do further DNA testing? BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. II 11-17-05 A

424

It's - - this is simply a framework within which to

2 think about the decision in question here, which is the 3 retesting of the DNA evidence in a different case. 4

So that framework isn't unique to the decision of to do further DNA testing?

5 whethe.r or not

Isn't unique of

I mean obviously the word testing would have to be

8 changed out for -9

Well, yeah.

I would agree if what you're saying is

10 could you come up with a similar type of decision tree

11 for other decisions that a defense lawyer would face, I 12 think certainly you could. 13

Okay. Well, let me ask you looking, at your

14 decision tree, is it your opinion that a lawyer should

15 pursue further testing of evidence if he knows that the 16 result of that further testing would - - if he pursued --

17 how do I say that... let me back up.

1~ It's a bad thing for a lawyer to l?erpetrĂ te a If

19 fraud on a court, isn't it? ..

Yes.

Very bad, right?

I won't argue with that.

And a defense attorney, if he knows his client is

24 going to, for example, testify and lie, has to do what 25 he can to keep to keep his client from testifying; isn' t BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. II 11-17-05

425

1 that right? 2

Yes.

If his client testifying is not a question, he

4 still has obligations on what theory of the case to 5 present, or what evidence to present so that he does not 6 act as perpetuating a fraud on the court; is that right?

7 A Yes, certainly a defense lawyer cannot support 8 perj ury . 9 Q But I mean something even beyond supporting 10 perj ury. For example, would it be possible for him to

11 introduce documentary evidence that went in a certain 12 direction that he knew was a fraud on the court? 13

If it were fraud, certainly that would be

14 unethical. 15

Should a lawyer pursue further test ing if he knows

16 that the result of that testing would not produce any

17 evidence that could be admitted in court without being a

18 fraud on the court? 19

Could you give me an example so I can understand'

20 what you mean? 21 Q If a lawyer knows that testing further evidence may

22 give a false impression of facts that he believes to be 23 true i and therefore he can't present that evidence 24 because it's -- I believe you're agreeing that that 25 would be a fraud on the court, if he's present ing BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

426

EVIDENTIARY HEARING, VOL. II 11-17-05

1 documentary evidence that he knows to be false, or to

2 give a false impression of the facts, that would be a

3 fraud on the court? I thought I had already answered that question.

5 I'm not real sure I want to comment on what is and is

not a fraud on the court.

If you

are telling me that it --

7 something dispositive, I'm certainly agreeing

Well, let me ask your opinion. Would it be fraud

9 on the court for an attorney to present a piece of

10 evidence that is ei ther false or that presents the facts 11 in a false light?

12 A As to the first part - - the f~rst prong is easier. 13 If the lawyer knows that the evidence is false -14

And he has an obligation --

It would be unethical, but putting things in a

16 false light is often an issue of opinion, and certainly 17 the defense counsel - - if - - the defense counsel may l ยก:

(/J 1. know or suspect the client is guilty, but defense

19 counsel is nevertheless obligated to point out 20

weaknesses in the state's case, and it's --

Clearly, but pointing out a weakness in the state's

22 case wouldn't be the same thing as introducing evidence

23 that paints facts in a light that is not true. 24

Well, the difficulty I'm having answering

Let me give you a hypothetical. The defense

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING,

427

VOL. II 11-17-05

1 attorney knows -- and this is not the case in this case, let' s say the client confesses to the defense

2 but

defense attorney says,

3 attorney," I did it." And the

4 "Well, you can plead not guilty and we can try to make 5 them prove their case, but you can't testify," and the

6 defendant says, "Fine, I'm not going to testify, but I 7 want you to try to make them prove every element in the 8 case. " Obviously that's not a problem to the court,

9 correct? 10

That is correct.

But the defense attorney would be perpetrating a

12 fraud on the court if he presented evidence that the 13 client was innocent and didn't do it if the defense

14 attorney believes the client's corifession that he did it. Isn' t that a fraud on the court? 15 16

It depends on - - I'm - - if there's evidence that in

17 itself could prove the ultimate fact, maybe, but most of

18 the evidence that comes in in court doesn't go directly

19 to the element oÂŁ fact. 20

It's a judgment call, isn't it?

Right.

There's nothing unethical about a defense

22 lawyer present ing c ircumstant ial evidence that's 23

inconsistent with the client's guilt.

If the defense'

24 lawyers suspects or knows he client is guilty 25

You would agree with me it's a matter of opinion

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

428

EVIDENTIARY HEARING, VOL. II 11-17-05

it 's a matter of what a lawyer feels ethically

1 and

comfortable doing.

If a lawyer feels he is about to

3 perpetrate a fraud on the court, is he not obligated to

4 not present that evidence? THE COURT: Counsel (inaudible) the point.

6 MS. aDEN: I f I can just get him to answer 7 this question, Judge, I'll move on.

8 THE COURT: Do you have an answer? THE WITNESS:

I'm not sure I understand the

10 question, Your Honor. 11

(By Ms. aden)

If a lawyer believes that evidence

12 that he may present would perpetrate a fraud on the

13 court, he's not supposed to present it, is he? 14

Well, I'm not sure that I agree with your usage of

15 the term fraud on the court. That may be why I'm having 16

difficulty.

In my mind fraud is a bad thing and I would what you're thinking of as

17 never want to do it, but

1% fraud and what I think is fraud may be different. 19

Would you agree with me that different

lawyers c~n

20 have different interpretations of what a fraud on the 21 court would be? 22

Well --

That's what you just said, right?

although - - I would certainly agree different

25 lawyers can have different interpretations but I do not BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

429

EVIDENTIARY HEARING, VOL. II 11-17-05

1 think that all of those interpretations will be 2 acceptable or unreasonable. 3

And that's fine. Should a lawyer do more testing --

4 of the evidence if he has a reasonable assurance 5

THE COURT: Did you have an obj ection?

MR. ROBINSON: Well, we have to wait for a

question actually.

I'm sorry, Your Honor.

I'll sit

8 down and wait for a question. 9

(By Ms. aden)

Should a lawyer do more testing if

10 he has a reasonable assurance that his client is guilty? 11

I think that depends, and certainly the decision as

12 to whether the client is guilty or not is not to be made 13 by the defense lawyer, so 14

At some level he has to make a decision about

15 whether evidence that he's about to present would be a 16 fraud on the court., regardless of how we want to define 17 fraud on the court. He has to be able to make that 18

decision.

Isn't that the case?

A mere suspicion, or even strong suspic ion that the

20 client is guilty does not justify the defense lawyertb

21 hold his fire in these cases. That's almost the 22 defini tion of ineffective assistance o.f counsel. This 23 is an adversarialprocess and each party is ent itled to

24 zealous representation. 25

That's not my question. My question is if a lawyer

BETTY TATE, 3101 TOWNBLUFF DR. #923,PLANO, TX. 972-596-9442

430

EVIDENTIARY HEARING, VOL. II 11-17-05

1 has a reasonable assurance that his client is guilty, a certain piece of evidence would be

2 and that to present

3 a fraud on the court - - and I understand we may have a

4 difficulty defining fraud on the court, but you would

5 agree -6

THE COURT~ Let's move on to someth~ng else.

MS. aDEN: Okay, Judge, sorry.

(By Ms. aden) You mentioned the hotel room example

9 where it wouldn't be a surprise to find DNA evidence other people because it's a hotel room,

10 from

lots of

11 people go to hotel rooms. Do you recall that example? 12

Yes.

So if it's not a surprise that other people would

14 be in that room, your conclusion was it would be 15

reasonable not to test further evidence.

Is that what

16 you said on direct? 17

Well, yes. The key underlying premise was the

l' defendant's claim was that he had never been there; 19

Correct.

And so --

But I'm talking about a hotel room.

Yes.

How is Twila Busby's house different from your

24 hotel room analogy in the sense that finding somebody 25 else's DNA in Twila Busby's house only confirms that BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

431

EVIDENTIARY HEARING, VOL. II 11-17-05 1

other people have been there?

A Well, it's different in part because Mr. Skinner

lived there, so as far as harm in finding additional DNA

of Mr. Skinner in that residence, it's most likely to be

harmful.

about your first question, which is does the testing

have the potential to help the client. How is Twila a hotel room

I'm not talking about that prong.

Busby's house substantially different from

in the sense that finding somebody else's DNA there

would simply go to show that somebody else had been in

the house?

A Well, if the theory being advanced by the defense,

as I understand it, was that the killing was done by

somebody other than Mr. Skinner, or Twila Busby or her

sons, and certainly the presence of somebody else's DNA,

you know, at the crime scene or in close proximity to

the victims, would be consistent with that and

provide

Q And do you recall that your example was with the

hotel room, the defendant said he had never

would

I'm talking

support to that theory.

been there?

A Yes.

Q If somebody else's DNA was found in TwilaBusby's

house, it would be probative potentially that they had

participated in her murder if there was some claim that BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

432

EVIDENTIARY HEARING, VOL. II 11-17-05

1 nobody else had been in Twila Busby's house, correct? A

Well, it would have to be that that person said

3 they were never there, or hadn't been there at the time. 4

Simply finding somebody's DNA in her house doesn't

5 necessarily mean that they're the murderer? No, but you know, depending on where you found it,

it could certainly shut it down.

To answer your

8 question, yesJ it does not prove that theyJ re the

9 murderer, but it places them at the scene, which I mean,

10 you know, which may be an important step toward raising

11 that inference. 12

Your decision tree ends up concluding that if there

13 is a step the defense attorney could take that in his

14 opinion possibly helps his client, mayor may not hurt 15 his client, he should take the step of doing additional

16 testing; is that right? 17

If the testing has a potential to help the client

1~ and li t tle or no potential to hurt the client, then he 19 should do the testing. 20

That's not what Strickland says, is it?

Strickland says that the defense lawyer has to meet

reasonable standards of the communi ty.

It doesn't

23 address the issue in this detail. 24

Well, this is one way of looking at the decision

25 but it doesn' t say that in every case where further BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

433

EVIDENTIARY HEARING, VOL. II 11-17-05

f,// ~.

investigat ion is possible it has to be done.

saying this is one way of looking at the decision, I'm

saying this is - - in my experience this is the way that

the community of defense lawyers have looked at this

particular decision, at least the common elements.

Q Lastly I just want to talk a little bit about you

said that because Mr. Skinner lived with Twila, the

evidence of his DNA being in the house was not very

Well, I'm saying more than that.

I'm not just

inculpatory, it's expected that it's going to be there

because he was there all the time.

A Well, I think it would be cumulative of what was

already known.

Q What was that evidence that was already known, to

your understanding?

A Well, my understanding is that there were blood

stains found on his clothing that had his DNA

understanding is that he had a wound to his hana that he

claimed occurred there; that he lived there with Twil~

Busby, so I would have - - it's reasonable to expecttlĂat

lots of Mr. Skinner's DNA would be found in that house.

that the DNA that was found at the scene that belonged

to Mr. Skinner was limited to his blood on his clothing?

A Well, no, there was - - the post conviction testing

Okay.

So what DNA was

in it. My

it is your understanding

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. II 11-17-05

434

on other items. There was a cigarette

1 found his DNA

2 butt, for example, that had large quantities of his DNA

3 on it that was found at the scene, but I mean I think that's a good example.

I don' t think anybody thinks the

5 fact that a cigarette butt with his DNA on it was found 6 at the scene further incriminates him in the case;

7 whereas, if it were someone else's DNA, it could have

8 helped him. 9

Who else's DNA was found on Mr. Skinner?

My memory is that there was some DNA of Twila Busby

11 and one of the sons. 12 Q And whose DNA was found on Twila Busby?

13 A There's certainly a lot of her own blood was on

14 her, of course. 15 Q Was there any DNA of the defendant found on Twila 16 Busby's body? 17

I don't recall a test of that body.

Was there any evidence that you're aware of

19 indicating that Hank Skinner was not a participant in .

her murder, at the very least?

Evidence indicating

he was not a participant in her

22 murder? 23

Correct.

That was inferred --

You understand his story is that he was comatose on

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

HEARING, VOL. II 11-17-05

EVIDENTIARY

435

1 the couch while this happened? 2

Right.

Do you know of any evidence corroborating his story

4 that he was comatose on the couch and did not have

5 anything to do with her murder?

6 A Just what I heard in the testimony today and 7 yesterday, the toxicologist's testimony and so on.

8 Q And are you aware of any evidence that tends to 9 disprove his account that he was comatose on the couch? 10

Well, I don't -- despite the fact that I'm an

11 expert in many things, toxicology is not one of those

12 things. 13 Q Fair enough. But you are aware that Harold Corner 14 was aware of evidence that tended to disprove Hank 15 Skinner's story that he was comatose on the couch?

16 A He certainly said that he was aware of some 17 evidence that was inconsistent with that theory. 18 Q And have you seen Max Courtney's blood spatter 19 report? You were here whi Ie Dr. Lowry was being cross

20 examined? 21

I heard it discussed but I have not see it.

You are aware that the defense blood spatter

23 expert, Max Courtney, said that the amount and the

24 location of blood spatter on the defendant's clothes was 25 inconsistent with him being comatose on the couch during BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

436

EVIDENTIARY HEARING, VOL. 1111-17-05

1 the attack? 2

Yes, I heard testimony to that effect.

And you're aware that Harold Corner used that as a

4 major factor in his decision not to pursue further )

5 testing? A

He said that was a factor, yes.

MS. aDEN: No further questions, Your Honor.

THE COURT: Any re - direct?

MR. ROBINSON: None, Your Honor.

I would

10 like-THE COURT: Before you do that, I've just got

12 a couple of questions.

13 When you're making a decision in this case as 14 to whether to do DNA testing, are you talking about the

15 use of the cigarette but t? Can you use that to make a

16 decision over considering DNA on any i tern at all in the 17 house, anywhere in the house, or are you confining it to 1~ DNA that would be developed from blood stains? (I'

THE WITNESS: Well, I'm just - - certainly

there are blood stains that appear to be probative.

21 I were defense counsel I would also be very interested

22 in the rapek~t and the vaginal materials. And then

23 addit~onally, there were a number of hairs that weren't

tested. I would be interested in the hairs. And 25 think most defense lawyers will agree with that. 24

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

437

EVIDENTIARY HEARING, VOL. II 11-17-05

THE COURT: All right. You heard Mr. Corner's

1 2

testimony?

THE WITNESS: Yes, I did.

THE COURT: My recollection from part of his

testimony is that he was well aware of the fact that the

testing he did was similar to I guess Mr. Courtney's

report and should be kept confidential.

THE WITNESS: Yes, he said that.

THE COURT: Did I hear you right or did you

say that that was a fallacy of the defense counsel in

not knowing whether it would be confidential and not

inquiring of Mr. Mann?

THE WITNESS: Well, let's see, let me try to

reconstruct this.

would allow the testimony to be conducted on a

confidential basis.

I heard Mr. Mann testify that he

THE COURT:

In accordance with the letter that

l ,

t~:

counsel had, when he had it, but reserve the chain of

custody?

THE WITNESS: Yes. But then later Mr. Comer

was asked whether he had engaged in any discussions with

the prosecutor, and he said no, no.

that troubled me because it seems to me that no defense

lawyer would have done that.

That waS the answer

THE COURT: And I'm not arguing wi th you,

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

438

EVIDENTIARY HEARING, VOL. II 11-17-05

1 counselor, but he knew it was contradicted and he knew 2 it to be confidential, and he had that right so wouldn't

3 you have to do that? THE WITNESS: Well, yes, but the fact that

5 the - - I think the posi t ion taken by Mr. Mann in this

6 case as far as what he would allow, may well have gone 7 beyond what the law required him to do in (inaudible) THE COURT: Well then, let me get to that.

9 What did you think Mr. Corner could do under what Mr.

10 Mann said? THE WITNESS:

I think Mr. Comer could have --

12 under Mr. Mann's policy, Mr. Corner could have asked to 13 have a large

number of evidentiary items released to his

14 custody, packaged up, and shipped to a laboratory of his 15 choice. At that point you could specify to his 16 laboratory which samples to have tested with those test

17 procedures and then could have learned what the results II'

t, 1l were on a confidential basis without the government

19 finding out what those results were. 20

if that were~ THE COURT: And Mr. Comer's fear,

21 to induce the D.A. to do additional DNA testing, is what

22 you just dismiss based upon cost? 23

THE WITNESS: No, it wasn't based on cost. . I

24 think in the first place it's not clear to me that -25 that -- it would have been the case that the D.A. would BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

439

EVIDENTIARY HEARING, VOL. I I 11-17 - 0 5 1 have done additional testing.

THE COURT: There's no testimony but that's

3 Mr. Corner's fear.

4 THE WITNESS: Right, and I think that even if 5 additional testing had been done by the government, I 6 think we're still at that point in the chart where the 7 potential harm was minimal - - I think there's still more

8 to be gained by defendant by having him test it, and

9 whether or not it's confidential. The fact that it 10 could be confidential is just icing on the cake. THE COURT: Then that gets me to my last

12 question, which is which items were actually tested and we 're asking about that.

13 offered into evidence? I think

THE WITNESS: Yes. You know, I reviewed that

review it again

15 evidence at some point but I did not

16 before testifying so my memory may be a little vague at

17 the end of the day, but there was testing that I saw 18 people' s testimony about the DNA evidence on the

19 defendant's clothing that was presented at trial, and' 20 that's all I remember. 21

THE COURT: What was not tested?

THE WITNESS: Quite a number of items. The

23 rape kit material, in particular the vaginal materials, 24 the - - of course the knives, the murder weapon - - they

25 were not tested. There was a towel found in a plastic BETTY TATE, 3101 TOWNBLUFF DR.

#923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. II 11-17-05

440

1 bag that had blood on it, that was not tested. There

2 were hairs that were not tested. THE COURT: They are the ones in Ms. Busby's

4 fist. THE WITNESS: Yes, and then there's some

6 additional (inaudible) like that. There are -- let's 7 see what else... there was some other blood (inaudible)

8 Other (inaudible) and hairs found on the bodies of (inaudible) that were not tested.

(Inaudible). Those

10 are ones that corne to mind right at the moment. There 11 were quite a number of items that looked appropriate

12 (inaudible) . THE COURT: And are you saying that if Mr.

14 Skinner's blood had been found on the knives, or his 15 hair in Ms. Busby's fist would not have harmed him? THE WITNESS: What, finding his blood on the

17 knife - - well a few witnesses had already stated that he 1~ was packing a knife, there's a ready explanation. II

THE COURT:

There wasn' t any testimony at "

trial about that. THE WITNESS:

No, but it seems to me that that

22 could have been consistent with both theories of the 23 case. Whereas, that blood of an unknown person, or

24 another party might be very helpful. 25

THE COURT:

I understand that. Any time I ask

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. II 11-17-05

441

1 questions, I'll let -- I'll start with petitioner. You 2 may re-direct covering anything I've covered, and then 3 I~ II allow you to do the same. MR. ROBINSON: Your Honor, I don' t really have

5 any re-direct but -6

THE COURT: You want to offer some exhibits.

MR. ROBINSON:

I also wanted to make a comment

8 or two, if I could, that may be responsive to some of 9

the quest ions you asked.

I'm not trying to testify here

10 but I -11

THE COURT: You can do that at closing.

MR. ROBINSON: Okay, fine. Your Honor, I~d

13 like to offer Mr~ Thompson's chart on the board there as

14 I believe this would be Plaintiff's Exhibit 80. 15

MS. aDEN: No problem.

THE COURT: Admitted.

MR. ROB INSON: And obvious ly we don~ t have

18 copies of it, and does Your Honor (inaudible). 19

THE COURT: Whatever counse i (inaudible)

MR. ROB INS

ON: We can work that out. Then I

21 believe -- well, I'm not really sure, so I have to ask. 22 I marked this Plaintiff's Exhibit 79 It's admitted.

THE COURT:

MR. ROBINSON:

I already did it? I'll do it

25 at this time, Your Honor, move to admi t Plaint i ff' s BETTY TATE, 3101 TOWNBLUFF DR-. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. II 11-17-05

442

1 Exhibit 79. 2

MS. aDEN: No problem.

THE COURT: Pardon me?

MS. aDEN: No obj ection.

THE COURT: Admi t ted. Do you have anything

6 else? MR. ROBINSON:

I have no questions, Your

8 Honor. 9

THE COURT: Do you have anything else?

MS. ODEN: Nothing, Your Honor.

THE COURT: May this witness be dismissed --

MR~ ROBINSON: Yes, he's to stay. Thank you,

13 Your Honor. 14

MR. OWEN: We'll call Gary Taylor, Your Honor.

MS. SCHMUCKER: Once again, Your Honor, for

16 the record -17 1~~

THE COURT:

(Inaudible). YOU have the same

obj ections? MS. SCHMUCKER: Yes, and also wi th regard to

Mr. Taylor, to the extent there's any testimony about

21 the decision about the DNA, especially given the 22 lateness of the hour, we would object on the basis of it 23 being cumulative, and also -THE COURT:

I s he one of your DNA expert

25 witnesses? BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

443

EVIDENTIARY HEARING, VOL. II 11-17-05 MR. OWEN:

My only question to him on that

2 subj ect, Your Honor, was going to be to ask whether he

3 disagreed with or had anything to add to what was 4 previously testified to on that subj ect by Mr. Thompson. 5 I wasn' t going to ask him to rehearse those conclusions. THE COURT:

The exhaustion- - I can't remember

7 what all MS. SCHMUCKER: Well, unexhausted. Again, Mr.

9 Taylor was one of those wi tnesses where there was no

10 attempt whatsoever made to introduce that testimony in

11 the state court, even in the context of the writ that 12 was dismissed under the two forum rule.

13 Also the Federal Rule of Evidence 702 14 obj ection with the Provenzano case .

that

But in addition to

and this is one of those situations where the

16 Rule 26 disclosures were never made, we have not

17 received Mr. Taylor's opinion in any form, except for a 18 one-line comment that he was going to be, testifying on

19 ineffective assistance of counsel claims. We hav~n't 20 received any other written documentation from him ab6Ă&#x203A;t

21 what he was going to say, or any supporting.

22 I'm aware that counsel has argued that we did 23 not request discovery but Rule 26 of the Federal RuleS

24 of Civil Procedure applies in this context regardless, 25 and requires disclosure wi th or wi thout an order of the BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. II 11-17-05

444

1 court, and wi th or without agreement of the parties. MR. OWEN: Your Honor, if I - - may I respond

3 to that last one? I'm fixing to overrule it, if you

THE COURT:

5 want to 6

MR. OWEN: No, sir, nothing to say.

THE COURT: That is something that I think has

8 been raised during some of the telephone conferences

9 (inaudible). I'm going to overrule that obj ection 10 (inaudible). Now this witness - - I'll see where he's

11 going but I'm not - - confident that we need much expert 12 testimony on ineffective assistance of counsel on the 13

subj ect of DNA issues.

It's something the court

14 (inaudible) . MR. OWEN: And I'm sure the court will let me

16 know if I'm not providing useful information. THE COURT: Go ahead.

17 f.

18,

GARY TAYLOR, Called by Petitioner (Sworn)

DIRECT EXAMINATION

21 22

23 BY MR. OWEN: 24

Mr. Taylor, what do you do for a living?

I'm an attorney.

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

445

EVIDENTIARY HEARING, VOL. II 11-17-05 1

Where do you practice?

Currently I'm an Assistant Federal Public Defender

3 in Las Vegas, Nevada.

What are your responsibilities in that capacity?

I have a case load on Nevada death row.

I work

6 with capi tal habeas issues, representing Nevada inmates

7 in federal court. 8 Q Is your case load exclusively composed of death 9 penal ty cases? 10

Yes, sir.

Could you please describe for the court your

12 educational background? 13

I graduated from the Uni versi ty of Texas, have a

14 degree in psychology, graduated from Texas Tech

15 University School of Law with a J.D. degree. licensed to practice law?

1986.

When you first graduated from law school what was

And when were you first

19 the nature of your legal practice at that time? 20

I was a trial lawyer, appellate lawyer in Lubboek,

21 Texas. 22

that time And what proportion of your practice at

23 consisted of criminal cases? 24

Well over half.

Of the proportion that were criminal cases, what

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

446

EVIDENTIARY HEARING, VOL. II 11-17-05

1 proportion were felonies as opposed to misdemeanors? 2

Almost all of them.

How long did you remain in private practice?

Until 1991.

I accepted a position in the Texas

5 Court of Criminal Appeals. 6

Could you describe your responsibilities at the

7 Court of Criminal Appeals? A

I was the permanent

staff attorney for Judge

9 Charles Baird. My responsibilities included basically

10 running his office, supervising the other attorneys who 11 worked for him, editing and drafting opinions, and 12 making recommendations to Judge Baird. 13

While you were on the staff of the Court of

14 Criminal Appeals, what proportion of your time did you 15 spend working on specifically death penalty cases? 16

At least a third to a half, depending on what was

17 happening at that time. The Texas Legislature was a

they

iIยกl' little irritated with the Court of Appeals because

19 weren't pushing enough cases out, so that was a large' 20 part of our practice, plus that was an area I wrote and

21 researched in (inaudible). 22

While you were at the Court of Criminal Appeals did

23 the Texas Board of Legal Specialization certify you as a

24 specialist in any area of the law? 25

BETTY TATE, 3101

Yes, sir, I was certified as a specialist in TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

447

EVIDENTIARY HEARING, VOL. II 11-17-05

1 criminal law.

2 Q What special exception, if any, did the Board of 3 Legal Specializations have to make for you in certifying

4 you as a specialist in criminal law? 5

Didn' t have enough misdemeanor trials.

So they made an exception for the number of

7 mi sdemeanors? 8

Yes, they let me apply with having excess

felonies.

9 Q While you were at the Court of Criminal Appeals 10 were you given the opportunity to participate as a 11 faculty member at any CLE programs or other kinds of

12 trainings that specifically focused on death penalty

13 issues? 14

A I'm trying to remember.

statewide basis about 1994.

I started speaking on a Really didn' t focus on

16 death penalties until' 97 or ' 98 when I -- about the 17 time I was leaving the Court of Criminal Appeals. 18

What did you leave the Court of Criminal Appeals to

19 do? 20

I went back to private practice to represent death

21 row inmates. 22

And what percentage of your private pract ice after

23 you left the Court of Criminal Appeal s was devoted to'

24 criminal matters? 25

99 percent. My assistant had (inaudible).

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

448

EVIDENTIARY HEARING, VOL. II 11-17-05 1

Of the criminal matters that you did, what

2 proportion of them were death penalty cases? 3

All of them, except one or two.

As you know, death penalty litigation~ as we're all

5 aware, is a multistage process, the trial, appeal, state post conviction, federal post conviction.

At which of

7 those stages did you handle death penalty cases during

8 your private practice from 1997 to 2005? 9

All of them.

Where in Texas were these cases located?

In Travi s County I had a number of capital cases.

All of them I was able to negotiate and resolve.

I did

13 try the Michael Rodriguez case in Mt. Vernon in 2000.

14 As far as habeas cases, I'm up here in this court, all 15 the way down to Brownsville, allover Texas. 16

And during your private practice from 1997 to 2005,

17 I believe you said that you began increasingly to tl'

1~ participate as a faculty member in seminars focused on 19

the death penalty.

I wonder if you could give us a

20 little more detail about that? I spoke four to six times a year throughout Texas,

as far as training the lawyers.

My topics usually

23 included cross examination, the investigation of a

24 capi tal case, the presentation of habeas. 25

Have you authored any manuals or articles or other

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

449

EVIDENTIARY HEARING, VOL. II 11-17-05

1 information for defense attorneys regarding the defense

2 of death penalty cases? 3

I published - - or the Texas Criminal Defense

4 Lawyers published - - my Texas Capital Habeas Manual. 5

Does that manual contain information about

6 investigations specifically, and counsel's duties with

7 respect to investigations? 8

Yes.

Does that information deal only with counsel's post

conviction litigation - - I'm sorry.

information deal only with post conviction counsel's

duty to investigate, or does it also iddress

responsibili ties of counsel at other stages of the

process to investigate?

Well, it

Does that

necessarily has to address the

16 responsibilities of trial counsel. 17

Why is that?

Well, because there's no way for us as habeas

19 counsel to know what claims to raise, unless we do a 20 complete investigation to start with as habeas 21 attorneys, so it's the same - - and it also included a

22 check i ist of other materials, but it's the same 23 investigation I would do whether I was the trial 24 attorney or the habeas, and I've done it in both, 25 depending on who I'm representing, at what stage. BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-944

EVIDENTIARY HEARING, VOL. II 11-17-05

450

1 Q And as a resul t of your training and experience, 2 are you familiar with the prevailing standard of

3 practice for defending capital cases? 4

I bel ieve so.

And did the same standard of practice prevail in

6 1995? 7

Generally, yes.

What materials have you reviewed in preparation for

9 testifying here today? 10

Oh, two or three weeks ago y~ all sent me your

11 pleadings, and I looked at those. Other than that, I've 12 sat through the testimony. 13

When you say your pleadings, did you have an

14 opportunity to read not only the petitioner's pleadings 15 but the respondent's answer in this case? Yes, I read them briefly, but I read the petition

and I read the answer by the State of Texas, as well as l

1 lt~

your response.

And as you mentioned, you were also present ~-

20 you've been present here t.hroughout this hearing, and so21 you've heard the testimony of trial counsel, Mr. Corner 22 and Mr. Fields; is that right? 23

I believe so, yes, sir.

I'd like to ask you first about the duty of trial

25 counsel in a capital case to investigate the client's BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

451

EVIDENTIARY HEARING, VOL. II 11-17-05

1 background. What kind of background investigation of 2 the client does the prevailing standard of practice

3 require of a reasonable attorney? MS. SCHMUCKER: Obj ection, Your Honor.

5 Investigate the client's background? I think aren' t we 6 supposed to be talking here about Mr. Donnell - - failure

7 to investigate Mr. Donnell, failure to investigate DNA,

8 failure to investigate other things ,but not -MR. OWEN:

The other things is where this

10 goes, Your Honor. As the court knows, we have alleged counsel failed to perform effectively in not

11 that

12 becoming aware that Mr. Skinner was allergic to Codeine. 13 That's information that would have been uncovered, we

14 believe, in what is a routine background investigation 15

required of counsel on death penalty cases.

where the question is going. THE COURT:

17 18

(By Mr. Owen)

Tha t ' s

Overruled. The question, Mr. Taylor, was

could

19 you describe the extent and nature of the background 2D investigation of the client that a reasonable attornĂŠy 21 would have to conduct in a death penalty case under the

22 prevailing standards of practice? 23

Well, we aspire to acquire all records, school

24 records, medical records, any of that mat ter, jail 25 records. That's just something that's just standard for BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

452

EVIDENTIARY HEARING, VOL. II 11-17-05

1 any death penalty lawyer to do, whether a trial lawyer

2 or 3

And why is that regarded as necessary?

Well, basically if you read the most recent cases

5 from the Supreme Court over the last five years, what

6 you find is you have an obligation, and you've always

7 had an obligation to construct the life history, to 8 construct the mi tigations evidence, or evidence which calls for some sentence of less than death.

In order to

10 construct that kind of picture, or present that kind of 11 evidence for the jury, you have to find it from what was 12 found over and over again, because you find it in these

13 records. 14

Would counsel also have an obligation to interview

15 the client about anything like those kinds of

16 information you just described, the medical history, 17 school history, work history, those kinds of things? Yes, and it's even more extensive than that in the A 1l t,

19 ABA standards, which the ones in 2005 are probably 20

applicable.

The ones from 1989 are clearly applicable

21 in this case. The ABA standards clearly require you to 22 look at life history information and to sit down with

23 your client and to spend the time to get your client to 24 first trust you, and to provide that type of evidence

25 which you're trying to develop. BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

453

EVIDENTIARY HEARING, VOL. II 11-17-05 1

In this case you've heard testimony indicating that

2 some of Mr. Skinner's medical records reflect that on a occasions he reported hLmself as allergic to

3 number of

when he was receiving or requesting medical

4 Codeine

trea tment .

And you've also heard trial counsel's

6 testimony about whether they were aware of that fact.

7 What I'd like to ask you to do is comment on 8 whether counsel's failure to become aware of that fact

9 was reasonable in light of the prevailing standard of

10 practice? I think there's another factor I heard that works

in this too.

First, I've not only heard evidence that

13 was available to counsel that Mr. Skinner was allergic 14 to Codeine, but I've also heard some evidence that

15 suggested Mr. Skinner had Codeine in his system at the 16

time of this offense.

Those two facts, taken

together ,

17 would tell the trial lawyers you have to investigate

18 further.

19 I can' t say that I know the effect of an 20 allergy of Codeine on Mr. Skinner, but I know it is

21 something I would have to investigate as a lawyer. 22

How would a reasonable lawyer go about

23 investigating that, because as you say, as a lawyer you

24 wouldn't have any idea whether the al lergy might be 25 relevant or not. What would a reasonable attorney do to BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

454

EVIDENTIARY HEARING, VOL. II 11-17-05

1 try and answer that question? A

Well, it's very similar to -- you know,

3 unfortunately, like Dr. Thompson, he testified -- and "

4 I'm not that smart with DNA, so what I'd do is I'd get

5 me an expert, I'd get me someone who can teach me, and 6 educate me to the extent that I can make a reasonable 7 decision, but any lawyer, knowing that their client is

8 allergic to Codeine, would reasonably look further in

9 finding out the content of (inaudible). 10

If reasonable counsel were already working with an

11 expert who possessed that kind of expertise, would you

12 expect them to provide that information that their 13 client had an allergy to Codeine to the expert? 14

Sure.

I also want to ~ - I know that you've also heard

16 testimony that indicated that Mr. Skinner wrote a letter 17 to his trial attorneys to tell them that he was allergic If

1 ~ to Codeine, and you've heard counse i ~ s test imony that

19 they don' t recall having become aware of that fact 20 through Mr. Skinner's letter, and given that Mr~ Skinnet 21 is agreed by all parties to have been a prolific letter

22 writer, could you comment, please, on whether under the

23 prevailing standard of practice that fact, the fact that 24 the client is sending counsel a lot of letters, would 25 that change the counsel's responsibilities w~th respect BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

455

EVIDENTIARY HEARING, VOL.I~ 11-17-05

1 to reviewing those carefully and seeing whether there's

2 anything in them that's important? 3

No.

I would say people - - I'm very sympathetic

4 with counsel, having had clients who were prolific 5 writers, but if the Supreme Court is -- and I've made 6 this statement - - if the Supreme Court is going to down the hallway and go pull a

7 require counsel to go

surely 8 case, pull a file from the clerk~s office, they

9 require them to read their own files. 10

I'd i ike to turn now to the issue of counsel's

11 investigation of the al ternati ve suspect, Robert 12

Donnell.

You've testified earlier about the extent of

13 the investigation of the client '.sbackground that's 14 required by the standard of practice in death penalty practice with respect 15 cases, and what is the standard of

16 to investigating potential guilt phase issues?

17 A I mean obviously you have an obligation to 18 investigate until you reach such a point, that further 19 investigation would be fruitless or a waste of resources. I mean the courts have been clear on 20

that.

21 If counsel believed that there was such 22 evidence out there that another person, Mr. Donnell or 23 whoever, was likely to have committed this crime, it

24 would seem to me that under the current standard of 25 care, as well as the standard of care in 1995~ counsel BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-944

456

EVIDENTIARY HEARING, VOL. II 11-17-05

1 had an obligation to pursue that investigation until

2 such a point it was either fruitless or it proved to be 3 a waste of resources. 4

Now you heard trial counsel i s testimony about this,

5 and I wondered whether having heard their statements justification for not seeking

6 that they had no strategic

7 additional information about Mr. Donnell, and if they 8 had had additional information about him they might well

9 have presented it. Do you have an opinion about whether 10 that investigation was stopped too early under the

11 prevailing standard of practice? Well, yes. I believe that under our current A 12 13 under the 1995 standard of care counsel had an

14 obligation but failed in that obligation, but -15

THE COURT: Did you have an objection?

MS. SCHMUCKER: Yes, Your Honor.

I fail to

17 see how this makes any difference in your ability to 1G make this decision. I think you are well capable of 19 applying the Strickland standard to these particular 20 issues without Mr. Taylor's assistance. ll

MR. OWEN:

I think that obj ection has already

22 been made and overruled, Your Honor. THE COURT: All right, overruled.

The only other comment I would make is I did not

understand counsel's rationale.

It seems to me counsel

BETTY TATE, 310l TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

457

EVIDENTIARY HEARING, VOL. II 11-17-05

1 made a distinction between my theory of this case is my

2 client is not guilty, and my theory of the case is my

3 client is innocent, and I don't understand that

4 distinction. 5 Q (By Mr. Owen) Do you believe that counsel's duty 6 to investigate is a function at all of whether his 7 client tells him-- or her client tells her that he~ s

8 innocent? 9

No.

i'd like to ask the question where you heard the

11 exchange between counsel and the previous witness about

12 whether it constitutes fraud on the court for a defense present evidence that the defense lawyer did

13 lawyer to

14 not subjectively personally intuitively believe to be 15 true if that evidence might lead the jury to acqui ttal,

16 I wondered if you had an opinion about that fraud on the 17

court question.

I'd like to hear your answer to that

is question. I disagree wi th counsel.

I have an obligation not

to present evidence which is false to the court.

21 don' t have an obligation at any point to judge the case 22 on my own, determine my client's fate by my own

23 judgment.

24 Q And the last question I have is the one that I 25 previewed for you earlier with the court. You heard Dr. BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. II 11-17-05

458

1 Thompson's testimony about the DNA issues and how trial

2 counsel in this case approached them and how reasonable

3 counsel in his view would approach them.

4 Do you have any different opinion about the 5 DNA issues and how they were handled, or should be 6 handled by reasonable counsel under the standards of

7 practice in 1995? A

I believe Dr. Thompson's testimony is very clear

and I believe he's correct. The one comment I would 10 make to the court was I think that there has been some 9

11 confusion between investigation and presentation of 12 evidence. It's never wrong to investigate conflicting

13 theories. You can investigate two things and it can

14 come out two different ways, and that doesn't mean 15 you're doing it wrong, and you' renot necessarily going 16 to present everything you learn through investigation,

17 so you always have that obligation. tl

1ĂĄĂ

In fact, that is the prevailing standard of

19 practice, how is counsel supposed to select thetheorV

20 of defense? 21 22

By investigation. MR. OWEN: No further quest ions, Your Honor.

23 Pass the witness. 24

BETTY TATE, 31Dl TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

459

EVIDENTIARY HEARING, VOL. II 11-17-05 CROSS EXAMINATION

1 2

3 BY MS. SCHMUCKER: 4

Good afternoon, Mr. Taylor. We've met before, have

5 we not? 6

Yes, ma'am.

And we in fact even met in this very courtroom,

8 have we not? 9

Yes, ma' am. Same Judge.

And under what circumstances was that?

When I was an advocate for Mr. Tisworth and Mr.

12 Knight. 13

And in both of those cases you were federal habeas

14 counsel for them as wel i? 15

Yes.

And in either one of those cases did you raise

17 ineffective assistance of trial counsel claims? 18

Yes, ma' am.

Were you successful? MR.

Objection, irrelevant.

I was.

THE COURT:

22 23

felt

OWEN:

sustained.

(By Ms. Schmucker) About how many habeas appeals

24 have you handled for death row inmates in the state of 25 Texas? BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

460

EVIDENTIARY HEARING, VOL. II 11-17-05 A

Golly, I'm totally guessing. Fifteen or 20.

2 mean counting co-counsel, because as you know, I 3 pract iced with Mike CharI ton so I've assisted him in

drafting.

It was a hundred percent of my time for seven

5 years. 6

And were your clients fairly memorable?

Some of them.

Who are some of the memorable ones first?

Who I've represented?

Yes.

The trial case was Michael Rodriguez, which is a

Texas-7 case.

Probably the most notorious case was the

13 Odell Barnes case. 14

How about Mr. Ramey Martinez?

I represented Mr. Ramey Martinez.

I was

16 co-counsel. That was actually Mike Charlton's case. Q

But you worked on the case with him?

Yes.

In all the time that you have been practicing law'

in this field, about how many times have you been

17 (,

as an expert on ineffective assistance of

21 qualified

22 trial counsel? 23

It's either once or twice.

I'Ve testified just two

24 or three times. This is not my avocation. 25

So you consider yourself just a practicing lawyer

BETTY TATE, 3102 TOWNBLUFF DR. #923, PLANO, TX.972-596-9442

EVIDENTIARY HEARING, VOL. II 11-17-05

461

1 and only occasionally - - this is only the second~

2 possibly the third time you've been qualified. Would

3 that be a fair statement? 4

Yes, ma' am.

What were the other courts that qualified you?

I was qualif ied in state court in - - and I don't

7 remember the client's name, it was in East Texas, navid 8 Schulman was the lawyer that asked me to corne and

9 testify. I also qualified in Travis County on death

10 penalty generally in the state court, district court.

11 I've qualified one other time in state court. That's 12 over, you know, 17 or is years. 13

So have you qualified in any other federal court in

14 the federal habeas context? I have not testified in federal court, except as an

at torney.

I mean I have been called because I was a

17 trial lawyer. 18

But you have not been qualified as an expert on the

19 ineffective assistance of trial counsel in any federal 20 court in the state of Texas? 21

So this is the --

So this is the first time?

Ye s, ma' am.

state.

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

462

EVIDENTIARY HEARING, VOL. II 11-17-05 1

Do you happen to know what the outcome is of the

2 two cases in which you were qualified as an ineffective

3 assistance of trial counsel expert in the state court -4

MR. OWEN: Objection, irrelevant.

MS. SCHMUCKER:

Your Honor, the relevance is

6 that he's presenting himself as an expert on ineffective

7 assistance of trial counsel, and suggesting that you

8 should follow his advice, and I think it's relevant that 9 other courts mayor may not have found his advice worthy

10 of following. MR. OWEN: Your Honor, if I may respond, the

12 fact is the outcome of the case may not have turned on

13 ineffective assistance of counsel issue at all. MS. SCHMUCKER: Well, we can look into that

15 but that's exactly why I want to ask Mr. Taylor about

16 what the outcome of the ineffective assistance of trial 17 counsel claims was. l,

1~:

MR. OWEN: And it remains irrelevant.

THE COURT:

Confine it to cases where he's

20 testified as an expert where it was ineffective

21 assistance of counsel and the court fraud it was not. 22 Cases where he advocated ineffective assistance of 23

counsel and the court

fraud (inaudible) ~

Do you follo'w

24 me? 25

MS. SCHMUCKER:

I'm not sure I did follow you,

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

463

EVIDENTIARY HEARING, VOL. II 11-17-05

1 Your Honor. THE COURT:

If he testified in a case that was

3 ineffective assistance of counsel as an expert or 4 whatever, and the court disagreed and found there was

5 not effective assistance of counsel, you may develop 6

that.

If he represented a death row inmate on habeas or

7 direct appeal i and advocated ineffective assistance of

8 counselor whatever, that's what I'm talking about. 9 MR. OWEN: Your Honor, I further obj ect to the 10 court's limiting the question to cases where Mr. Taylor

11 testified about deficient performance and the court

12 found there was no deficient performance. THE COURT:

I thought that's what I just said.

14 MR. OWEN: I'm sorry, Your Honor, I think you 15 said ineffective assistance. I thought you might have

16 included cases where the court found there was deficient 17 performance and found it wasn' t prej udic ial, which 18 wouldn't have reflected on Mr. Taylor's .testimony at

19 all. THE COURT: Well, (inaudible).

You have cases

21 where he testified as an expert and the court disagreed, 22 then you can develop that, but not cases where he merely 23 advocated. 24

(By Ms. Schmucker)

So let me preface this by

25 asking this question: BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. II 11-17-05

464

1 In the two cases in state court in which you 2 testified as an expert on the issue of ineffective

3 assistance of trial counsel, did the court in either 4 case agree or disagree with you on the issue of

5 deficiency of performance? 6

I have no idea.

Are those cases still pending?

One of them is, I believe - - or one I have no idea

at all.

The other one is the case in federal court, and

10 I don' t know - - the court adopted findings and

11 conclusions of law which found - - or which denied the IAC claim.

I know that.

I don' t know if it was on

13 deficient performance or prejudice, which is the distinction. I don' t know. In that case my 14 15 understanding was it was clearly ineffective assistance

16 of counsel. 17

So we don' t know which is which then you have.

THE COURT: All right.

1~ 19

(By Ms. Schmucker)

Would you agree with me that as

20 a defense attorney sitting on the witness stand even as

21 an ineffective assistance of trial counsel expert that 22 your goal is to get the defendant off? 23

No, ma' am.

So what do you

believe your goal or purpose is in

25 sitting up there today? BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

465

EVIDENTIARY HEARING, VOL. II 11-17-05 1

Counsel called and asked me what I thought, based

2 upon a set of facts that I read, and that's the same 3

thing that

I think that I assumed a different role. .'"

4 I'm not an advocate in any manner, (inaudible) give the

5 court my honest impression on what my duties are, the 6 duties that I assume every day in whatever case. 7

In your experience do other attorneys handling

s capital cases always agree with you in terms of what 9 their duties are towards their clients in this regard? 10

No.

So there is some room for differences of opinion

Sure.

In effective representation, there's a

13 latitude, I agree. 14

You mentioned that you had reviewed just a couple

15 of things, the pleadings in the case, so you d~d not in

16 this case review the video crime scene, you did not 1 7 review the crime scene photos?

No, ma' am.

You did not review the blood spatter reports, blood

20 splatter reports? 21

No, ma'am.

You did not review Mr. Skinner~ s video taped

23 statements? 24

NO, ma'am.

You did not review

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX.972-596-9442

466

EVIDENTIARY HEARING, VOL. II 11-17-05

Other than the fact that the prosecutor testified

that he might have violated his rights.

i did hear that

3 testimony. 4

But you didn' t actually review the transcript of

5 that, or the tape itself? 6

No.

Did you review Mr .

No.

Did you review Mr. Corner's aff idavi t?

Don't believe so.

wi tnesses who either testified here today or who

Did you

Fields ' aft idavit?

review the statements of any other

who

13 did not testify here today or yesterday actually? 14

I don' t believe so.

I don' t remember exactly what

15 was attached to the material to the writs, but mostly

16 what I focused on was on the pleadings. 17

And did you review any of the police reports?

No.

And did you talk to any of these witnesses ,the

20 police or any of these witnesses yourself? 21

Since I've been here I've been instructed not to

22 talk to anyone. 23

But before arriving here to do this, did you make

24 any effort to call and talk to any of them and ask them

25 about -BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. II 11-17-05 1

467

The only person I talked to was Katherine Hayes in

2 your office. 3

Were you in the courtroom when James Hayes was

4 testifying yesterday?

5 A I think so. I was here all day. 6 Q Okay. Do you recall Mr. Hayes testifying that the 7 vi~t im was afraid that Skinner would be upset with her

8 but she was not afraid of Mr. Robert Donnell? 9

I recall something to that affect.

10 Q And were you also in the courtroom yesterday when 11 Vickie - - Ms. Vickie Broadstreet was testifying? 12

Yes.

And do you recall her testifying that she was in

14 fact having a consensual sexual relationship wi th Mr.

15 Robert Donnell? 16

Uh-huh.

And said that she was not afraid of him?

Uh-huh.

19 Q Would both of those things tend to contradict th~ 20 suggestion that has been made up to this point that Mr. 21 Robert Donnell was aggressive towards her and might have

22 been her murderer? 23

They might.

24 Q And is there a potential that those things might 25 not necessarily be all that helpful, if said upon the BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

468

EVIDENTIARY HEARING, VOL. II 11-17-05

wi tness stand?

If those two instances had been said on

2 the witness stand? MR. OWEN:

Your Honor, I obj ect.

be allowed I have

4 into prejudice and if that's going to

lots of prejudice questions for re-direct.

She's going

I want to

6 make sure that if it's okay with the court that we ask 7 this witness .about the prejudice prong. THE COURT:

Overruled.

I think you're confusing, counsel.

Again 'we're

10 confusing the presentation of evidence with the

investigation.

I think counsel had the obligation to

12 investigate~ regardless of what Ms. Broadstreet and Mr. 13 Hayes said. Now, whether or not counsel made a rational

14 reasonable decision not to present evidence is going to 15 totally depend upon what the investigation gives him. 16

(By Ms. Schmucker)

Are you aware then that trial

17 counsel did attempt to speak with a number of other l

1~ witnesses and just decided not to call them? 19

I am aware that they said that they have spoken to

20 a number of witnesses~ but they did not pursue the

21 Donnell issue past the point which he testified to. 22

So given their testimony yesterday, to make sure

23 that this is under the deficient performance probe, give

24 those -- the witness' testimony yesterday that -- about 25 Mr. Donnell's relationship with Twila Busby, would you BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

469

EVIDENTIARY HEARING, VOL. II 11-17-05

1 have necess.arily faul ted them for not thinking that that

2 was worthy of putting up on the witness st.and?

3 A Again, the decision is whether or not they were "

4 you should fault them for not investigating, not the 5 decision is not whether or not they put it up on the 6

witness stand.

I probably - - you know, based on what

7 they had before them, I mean I wouldn't put it on the

8 witness stand either. However, had counsel done that located the person who saw Mr. Donnell

9 investigation and

10 pull the carpet out of his car and hosing out the 11 inside, I'd have questions too and I might have put that

12 on, but you find that only if you investigate, and my 13 real problem is not what Mr. Corner, who's an icon-- I

14 mean, he's been doing this a long time, but the problem 15 is not what he put on the stand~ it's what he didn i t do,

16 what he didn' t investigate. 17

Did you read his affidavit as to what he did and

18 what Mr. Fields did to investigate? 19

I didn't read the affidavit.

I heard his

20 explanations. 21

And so if in fact ei ther counsel spoke wi th Mr.

22 Hayes and they just didn't put him on the witness stand,

23 that's not a failure to investigate, is it? 24

If they only spoke to Mr. Hayes and went no

25 further, it's still a failure to investigate. BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. II 11-17-05

470

And how is it a failure to investigate if they --

Because there were other things out there

3 indicating they needed to investigate. 4

Based upon what Mr. Hays would have told them?

Based upon the fact that they were already

6 developed and the theory of their case it was Mr.

7 Donnell who committed this crime. Now, if that's the 8 theory of their case, they have to investigate that

9 theory. 10

But when they spoke wi th Mr. Hayes and when they

11 pursued that, they got a couple of people who testiÂŁied 12 that she was afraid of him and how much more assistance

13 really is it to put on or pursue more of that line of

14 evidence when although what they're really trying to do 15 is raise a reasonable doubt and not prove in fact that

Mr. Donnell was the offender.

It's not their job to

17 prove that Mr. Donnell was the actual offender, is it? '"

iff'

It's not their job but it i s the - - counsel has the

19 opportunity to prove their client innocent, versus 20 simply raise problems with the state's case. A 21 reasonable counsel will always prove their client 2i innocent, because that's always what's best for their 23 client, and that's the standard language by which we're 24

held.

Yes, they should have gone forward~ yes ~ they

25 should have done more than ask a couple of people who BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

471

EVIDENTIARY HEARING, VOL. II 11-17-05

1 saw it. 2 Q Do you recall the local discussions that have gone 3 on over the last couple of days about the blood spat ter "

4 report from the expert in which the conclusion w.as that 5 the blood spat ter evidence on Mr. Skinner's clothing was

6 inconsistent with him being comatose on the sofa at the

7 time of the offense? 8

You're talking about Max Courtney's report, I

9 presume? 10

Yes, sir, I am.

I do recall that.

And do you also recall that the statement that was

13 gi ven by Mr. Skinner on January 1st was one in which he 14 told police that he knew that Twila had been at Mr.

15 Mitchell's house? 16

That statement hasn' t - - I haven' t heard that in

17 the last few days. 18 Q I'm referring to Respondent~ s Exhi~it 35-A~ which 19 is the transcript of the January 1st statement,

20 beginning at the bot torn of Page 7 on Line 24 and gOilig-

21 through Page 8, Line 7. 22

MS. SCHMUCKER: May I approach, Your Honor?

THE COURT: You may.

It does say that she went to

Howard Mitchell's

25 house. BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VQL~ II 11-17-05 1

472

(By Ms. Schmucker) And do you recall counsel

2 stating that they had seen either this video tape or 3 else seen the transcript of this video tape before the

4 trial? 5

I believe I recall counsel discussing Mr. Skinner's

6 statement, yes. 7

And do you recall the further discussion that has

8 taken place over the last two days about Mr. Skinner 9 having the ability to walk unassisted the four blocks

10 from his house to Andrea Reed's house 11

Yes, ma'am.

- - immediately following the murder?

Yes, ma' am.

Did you happen to read a statement by Howard

15 Mitchell? 16

No, ma'am.

Do you recall defense counsel indicated that they

1l had everything in the district attorney's file, they had

19 access to everything in the district attorney's file? - ..

I think Mr. Comer~ s comment was, II I thought we

21 did. II 22

Were there any indication that Mr. Mitchell's

23 statement would not have been in there? 24

I don' t know who Mr. Mitchell is, other than he had

25 a party. BETTY TATE, 3101 TOWNBLUFF DR.

#923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. II 11-17-05 1

473

So essentially you don' t have any reason to believe

2 that it wasn' t in there? 3

No, ma'am.

MS. SCHMUCKER: May I approach, Your Honor?

THE COURT: You may.

MR. OWEN: May I ask counsel where this - - is

7 this statement in evidence? Is this It's --

MS. SCHMUCKER:

MR. OWEN: What's the purpose for its being

10 shown at least? MS. SCHMUCKER: It's going to show what

12 defense counsel had in front of them when they were

13 making their decisions about trial strategy. 14 MR. OWEN: May I see it before you show it to

15 the witness? It i S Respondent's Exhibit 15.

MS. SCHMUCKER:

MR. OWEN: Okay, that's all I need.

THE COURT: 15?

MS. SCHMUCKER: Yes, Your Honor.

(By Ms. Schmucker)

If you would start at the very

21 bottom of the page, five lines up, where it begins, 22 "Hank was jealous about Twila --." And it continues, 23 "but it was the kind of jealous like she was a

24 possession of his. He told me about a month ago that he

25 loved Twila but that he would kill her if she ever did BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. II 11-17-05

474

1 him wrong. Hank always talked about violence. II 2

I've read it.

And did I read that correctly?

Yes, ma'am.

So if that evidence was available to the defense

6 counsel, evidence that the blood spatter indicated that

7 Mr. Skinner was not, in fact, laying prone on the sofa 8 when Twila Busby was murdered, evidence that although he 9 was supposedly incapaci tated, incoherent, comatose,

10 however you wish to put it, while she was being

11 murdered, that he nevertheless knew that she in fact had 12 gone to Mr. Mi tchel i' s party and that immediately 13 afterwards he was able to walk the four blocks

14 unassisted, and that he had, in fact, made prior threats 15 to her, would you have reason to doubt his actual

16 innocence? A

Would I have reason to doubt my client's innocence?

Yes.

I may, but that's still not a reason not to

investigate it.

17 lr

But if you believed that your client actually

22 committed the offense and in that instance that Mr. 23 Donnell did not commit the offense, would you see any

24 purpose in continuing to pursue the investigation of Mr. 25 Donnell under those circumstances? BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

475

EVIDENTIARY HEARING, VOL. II 11-17-05

If I believed -- we're getting into some mental

gymnastics that I don't do.

If I perceive my client was

3 guilty and Mr. Donnell was innocent, would I represent ~.

4 my client? Yes. 5

That's not the question~

The question is would you

6 continue to pursue the evidence against Mr. Donnell when

7 you had reason to disbelieve your client's story to 8 believe he was in fact guilty of the offense, would you

9 continue to pursue Mr. Donnell beyond getting a couple 10 of witnesses upon the witness stand to throw reasonable

11 doubt on his guilt before the jury? 12

If I was presenting a theory of reasonable doubt

13 and focused my attention on Mr .

Donnell , i would

14 continue to pursue the investigation, yes. 15

So if you pursued that further and you found the

16 kind of evidence which the witness has testified to here 17 today~ or yesterday I should say, the testimony from, 18 for example, Mr. Hayes, that -- again, that Twila Busby

19 was not afraid of Mr. Donnell, that she was fearful of 20 Skinner, at what point do you stop? Do you just keep 21 going after more, and more, and more, and more

22 witnesses? At what point is not worthy of you 23 continuing to pursue - - do you consider it not worthy

24 for you to continue to pursue trying to p~n it on Mr. 25 Donnell? BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596~9442

476

EVIDENTIARY HEARING, VOL. II 11-17-05 1

It's not a matter of trying to pin it on anybody.

I thought you said that your goal as the defense

3 attorney was always to try and prove your client

4 innocent if you could. My goal as a defense attorney is to represent my

client.

Now, you know, with all due respect, i would

7 pursue it, as the Supreme Court says, until it proves

8 fruitless where a reasonable attorney would think the

9 evidence has proved to be fruitless, or risking my 10 client's - - you know, in some way becomes a risk to my

11 client, or until I don't have the resources to do 12

anything further.

I f I was going to present - - the

13 quest~on you asked me was if I was going to present this 14 so-called maybe not guilty enough theory, or I'm not

15 guilty theory, would I quit and just throw that -- you 16 know, throw it out at Donnell, no, I wouldn't because 17 good prosecutors do their research and if I don' t then I ll

if would never throw a theory out there that I hadn' t

19 investigated because I pay for it when I do. 20

I'm not sure I follow your answer.

My question is

21 at what point do you stop, if you've already got two

22 witnesses - - you go talk to Mr. Hayes and he says to

23 you -24

THE COURT:

Stop wi th that, please.

Wha t ' s

25 your answer to that question? BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

477

EVIDENTIARY HEARING, VOL~ II 11-17-05 THE WITNESS:

(,(.

I stop when I have evidence that

proves I'm either wrong or proves it would be worthless

to go forward.

evidence that Mr. Skinner was awake at the time that

Twila was murdered and that Mr. Skinner had Twila' s

blood allover him, and that Mr. Skinner was, in fact,

able to walk and to move about immediately after, and

that Mr. Skinner had some jealousy and possession issues

(By Ms. Schmucker)

And you don't think that the

and was a violent person, and was, in fact, the only

person known to be in that house with Twila and her sons

were killed that evening, is enough to want you to stop?

A That evidence in isolation in the chamber, maybe,

but you couple that with the other things which counsel

knew, and I don't think it is.

16 17

Q And that would be what other thing? A The fact that my client has maintained his

innocence, part of which counsel testified to.

that there's extensive DNA evidence that existed in that

house, which has never been looked at, and the currĂŠn~t

scientific findings that they have are not inconsistent

wi th my client's innocence.

now changing their story, or witnesses aren' t consistent

in their stories, all those things say I should

investigate further.

The fact

The fact that witnesses are'

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

478

EVIDENTIARY HEARING, VOL. II 11-17-05 1

But at the time that trial counsel was

2 investigating this~witnesses were.not inconsistent with 3 their story; is that correct? That only carne afterwards own federal 4 during the state habeas and in fact, these

5 habeas proceedings; isn' t that true? 6

That's probably true.

So that's really not a factor that would have been

8 taken into consideration by trial counsel -9

That's not - - their clients did maintain their

10 innocence ,the scientific findings were not conclusive 11

in that situation.

You know, they're already

12 pursuing - - this is what I think you want me to say i and 13

I am -- this is where I can't go.

Just because you have

14 two witnesses that say he may not be guilty, or he may 15 be innocent, is not sufficient when you can get one

16 wi tness that says he is innocent.

17 In other words, it's not a matter of number of /E

1~ witnesses, it's the matter of the quality of the 19 evidence. 20

Did the investigation - - during this federal habeas~

21 proceedings was there a single person that was put

upon

22 the witness stand here, or a single fact witness who was 23 able to prove absolutely that Mr. Skinner was innocent,

24 factually innocent? 25

You're asking me to do the Judge's job, but I

BETTY TATE, 3101 TOWNBLUFF DR. #923~ PLANO, TX. 972-596-9442

479

EVIDENTIARY HEARING, VOL. II 11-17-05

1 haven't heard it, I'll say that. 2

So in fact, continuing to pursue that, that's not a

3 point that we have reached since he was in fact guilty,

4 the proof of innocence? 5

No, they wouldn' t have known that because they

6 didn' t go forward. 7

Did you ever represent a client who was an

s alcoholic? 9

I'm sure several.

So that's a yes?

Yes.

And in your experience as an attorney representing

13 clients who were alcoholics, do those individuals also by prescription

14 sometimes abuse drugs, either

15 illegal? 16

Sometimes.

And did you hear Andrea Reed's testimony that Mr.

is Skinner, in fact, maybe used drugs? 19

Yes.

And so in your experience do defendants who abusĂŠ

21 alcohol and drugs ever lie about their addiction? 22 A Sure. Even people who use alcohol and drugs who

23 aren't defendants~ lie about it. 24

Did he ever lie~ for example~ to medical personnel

25 to obtain stronger narcotics? BETTY TATE, 310l TOWNBLUFF DR. #923, PLANO

i TX. 972-596-9442

EVIDENTIARY HEARING, VOL.. II 11-17-05

480

I heard of that. I never witnessed it.

Did you actually hear Andrea Reed, who was an AA

3 counselor, and was in fact Mr. Skinner's AA counselor seek out drugs that have a

4 testify that drug users

5 particular effect on them? 6

Yeah, I think she's an AA sponsor i and yes, I heard

7 her say that. 8

You didn' t review the medical records, did you?

No, ma'am.

But you were in the courtroom while the medical

11 records were being discussed with other individuals and

12 other experts; is that correct? Yes, ma' am.

Q And in particular in regards to Codeine allergy,

was there any verifiable evidence of a Codeine allergy

besides his self-reporting Codeine allergy - - his

self-reporting Codeine allergy in the medical records?

11/

A I think you're correct.

So there was no --

I don~ t remember anything other than that

21 affidavit, or whatever it was y'all were discussing.

22 Brim? 23

In your experience as a defense attorney and to the

24 best of your knowledge, is Codeine a comparatively mild

25 or comparatively strong pain killer? BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

481

EVIDENTIARY HEARING, VOL. I I 11-17-05

I have no idea, if that's a fair answer.

2 Q Fair enough. Would you agree with me, though, that 3 it's possible that an alcohol and drug abusing defendant tell them they're 4 would lie to medical personnel and

5 allergic to codeine in order to get stronger drugs? I don't know.

Theoretically, I'm guessing so.

And in fact, wasn' t there an exhibi t that was

8 discussed during the prior testimony that Mr. Skinner 9 that medical personnel did in fact think that Mr.

10 Skinner was abusing - - using and abusing drugs? 11

When he asked for a different drug, I remember

12 that. 13 Q So insofar as investigating a Codeine allergy, if 14 you had that information that Mr. Skinner was a drug 15 user and that he was more than likely lying to medical 16 personnel in order to get stronger drugs, do you think that beneficial to expend the

17 it would have been all

go after further testing or further

18 energy to

19 informat ion about the Code ine al lergy?

20 A I don' t know how beneficial it would be but I do

21 think it's counsel's duty. 22

So it's possible they would not have been all that

23 beneficial? 24

It's possible, but you know, the situation you gave

25 me is possible, someone is lying to get stronger drugs, BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO,TX. 972-596-9442

EVIDENTIARY HEARING, VOL. II 11-17-05

482

1 or it's possible that they're really allergic to

2 Codeine. 3

Is it possible in your opinion that another

4 attorney might reasonably disagree with you that that's

5 worth pursuing? A

No, especially not in this case where counsel is

7 pushing forward some defense that his client was

8 incapacitated. He had an obligation to investigate any 9 and all causes of that incapacitation. 10

And if that turned out the same sort of negative

11 information that was brought out here at this hearing, 12 is there an obligation to pursue anything beyond that?

13 A Negative information being what? 14

That there's no medical proof that Mr. Skinner is

15 in fact allergic to Codeine. 16 A You may need to do more than's been done so far to

17 find that out, but yes, you do need to at least - - if t,

il you have an expert thatl s already retained, I see

19 counsel's duty is to at least discuss it with the expe~t 20 that's already been retained that you're already

21 presenting evidence with. 22

But given the evidence that was presented here in

23 this courtroom about the Codeine allergy, or the fact 24 that it

was

merely self-reported, a fact which the

25 expert himself noted was only self-reported. BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

HEARING , VOL. II 11- 17 - 05

EVIDENTIARY

483

I agree.

At this point he did have that information, and he

3 said it didn' t make all that much difference to his

4 opinion one way or the other; isn' t that correct? 5

My memory is he said it had a synergistic effect,

6 which means a more profound effect, so yes, I think he

7 should have at least asked. Whether or not you present 8 it is a different question, but you have to investigate.

9 Q When you were testifying on direct, you talked 10 about the extent of the ,investigation, what should be 11 conducted, and the words you used were you should aspire

12 to obtain medical records ~ and j ai i records i and school

13 records. 14 A I think I said you aspire to obtain all records you

15 can get. 16 Q And so if you're unable to obtain those records for 17 whatever reason, that doesn't necessarily make you 18 deficient in terms of your performance? 19

Not if you try. I mean I think that's

That's all right.

I'm sorry.

And you spoke about the ABA standards of 1989.

Uh-huh.

And how you did not believe that counsel met those

25 standards. BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANOJ TX. 972~596-9442

484

EVIDENTIARY HEARING, VOL. II 11-17-05 I don' t know that I said that, but that's an

2 accurate statement of my feelings ~ 3

Are the ABA standards the base level standards or

4 once again are they standards to which one should aspire

5 to satisfy all of the things that the ABA --

I'd

I don't agree with either one of those terms.

agree with Dr. Thompson.

I think they're exactly what

8 the Supreme Court said they are. They're guides that was , 9 the court uses to determine whether or not counsel

10 in fact, effective. 11

The ABA standards are guides that the court uses or

12 is it Strickland's standards that the court uses? Strickland uses - - Strickland is the standard, the

ABA is the guide.

If it's the guidelines of the ABA,

15 that's the guidance as to what Strickland means. That's

16 what the court has said, Wiggins ,Williams, Rompilla. 17

I believe they reference the ABA but do they say

11 that that was necessarily, absolutely the requiremĂŠnt in

19 order to meet a -No, they did not. I think what they said were A 20 21 these are guides for interpreting what we meant in

.....

22 Strickland. 23

As far as reviewing the letters that Mr. Skinner'

24 sent to counsel, do you recall Mr. Comer testifying that that he did at 25 he may not have read them in detail but

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

485

EVIDENTIARY HEARING, VOL. 1111-17-05

1 least scan all of them to see if there was anything he

2 thought was relevant in them? 3

I heard him say that.

And so he did, in fact, review them to some degree,

5 not to the degree you think is necessary?

6 A No, what I said was I'm very sympathet ic to Mr. 7 Comer's position, and I am from having client.s -- or had

8 clients who were prolific writers and some might call --

9 THE COURT: Let's not go into that. 10

But I do think -THE COURT: That's not the question. Answer

12 the question. 13

Mr. Comer and I are bound by what's in those

14 let ters . 15 Q (By Ms. Schmucker) So he scanned them and he felt 16 satisfied that he had enough information in them without 17 going into detail, and then - ~ you cannot truly say that

18 he didn't give them any review at all, can you? .

19 A I don't know that I said that, but I'll agree with 20

you.

I think

THE COURT: You've answered the question.

MS. SCHMUCKER: Nothing further.

Pass the

23 witness. MR. OWEN:

Just a couple of questions, Your

25 Honor. BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. II 11-17-05

486

RE-DIRECT EXAMINATION

1 2

3 BY MR. OWEN: 4

First, counsel was asking you about the quality of

5 the evidence that's been presented on the Donnell issue

6 in this proceeding, and she was referring repeatedly to

Mr. Hayes' testimony and Ms. Broadstreet's testimony.

8 wanted to ask you about the testimony of the other 9 witness who testified with respect to those allegations,

10 Ms. Debbie Ellis, who testified to the incident.

11 Do you recall Mr. Donnell washing out his 12 truck so vigorously right after the crime? Do you have 13 an opinion about whether that would have been useful to suspect 14 counsel in pursuing the Donnell alternative

15 defense? 16

I mean basically as I understand our duties

THE COURT: Do you have an answer?

17 (I

THE WITNESS: I have an opinion.

1Ă&#x;l:

(By Mr. Owen)

Could you share that with us?

As I understand our duties, is counsel is obligated

21 to pursue the complete and broad investigation, and it's

22 not the same as (inaudible) making the decision or what

23 to present. 24 25 it,

An d the r e 's no - - it' s not n e c e s s a r i i y the cas e , is that the first two witnesses counsel would have

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. .972~596-9442

EVIDENTIARY HEARING, VOL. II 11-17-05

487

1 encountered would have been Mr. Hayes and Ms.

2 Broadstreet as opposed to Ms. Ellis. 3

We don't know.

4 Q The only other thing I wanted to ask you is that fact that Dr. Lowry said that

5 counsel referred to the

6 allergies were merely - - something merely self - reported,

7 and I wanted to ask you whether - - didn't Dr. Lowry 8

actually say

and I have a question about this

9 testimony didn't he actually say that almost all

10 allergies are self-reported, and if that is the case, 11 how might that fact affect reasonable counsel in pursing 12 the Codeine allergy issue? 13

It's just another factor.

I believe I heard

14 something like that. That's also my experience. That 15 is very common. MR. OWEN:

No further questions, Your Honor.

17 RE-CROSS EXAMINATION

18 19

20 BY MS. SCHMUCKER: 21

I just have a couple of quest ions regarding the

22 Debra Ellis issue.

23 Do you recall testimony that Debra Ellis spoke 24 with Katie Gerhardt a couple of days after the murders? 25

Yes.

BETTY TATE, 3iOi TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

488

EVIDENTIARY HEARING, VOL. II 1i-17-05 1

her and So in fact, somebody was able to speak with

2 defense counsel had information from the police about

3 her statement; is that correct? 4

A police detect i ve (inaudible) was sent out, yes.

Yes.

So they had information about her statement?

I guess.

And did you hear Ms. Ellis testify here yesterday

10 that she did not see anything - - aside from the fact

11 that Mr. Donnell was cleaning out his car thoroughly,

12 that while she observed that she did not observe any evidence that any offense had

13 blood spatter or any other

14 been commi t ted? 15

I believe this happened.

MS. SCHMUCKER: Nothing further.

Pass the

17 witness. l;

1~'

RE-DIRECT EXAMINATION

BY MR. OWEN;

In fact, I believe the testimony was it was Connie

23 Lockridge who talked to Ms. Ellis, not Katie Gerhardt ~ 24 Have you see any evidence other than Ms. Schmucker's

25 say- so that there was any pol ice report whatsoever about BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

489

EVIDENTIARY HEARING, VOL. II 12-17-05

1 Debra Ellis? 2

I've seen no police reports, period.

MR. OWEN: Thank you. No further questions.

THE COURT: Anything else from this witness?

MS. SCHMUCKER:

One moment, Your Honor.

6 Sorry.

7 THE COURT: What are you looking for? 8 MS. SCHMUCKER: The police report that 9 indicates that the police did in fact go speak with Ms.

10 Ellis. 11

THE COURT: Have you seen the report?

MS. SCHMUCKER: Yes, sir, I have.

13 apologize, Your Honor, we can't locate it at this time, 14 but seeing that because it'll probably be moved into

15 evidence, I think we'll just le.ave it for post hearing 16 briefing. Nothing further. 17

THE COURT: What exactly -- what was it that

18 Mr. Comer was testifying that you were relying upon in

19 making the decision that he conducted an inadequate 20 investigation? 21

THE WITNESS~ As I remember (inaudible) stated

22 that he interviewed a few wi tnesses, got a couple more

23 witnesses who cast some doubt on his client's guilt, and 24 he said he didn' t want to go any further with that, but 25 we never did hear an explanation of exactly why he BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

490

EVIDENTIARY HEARING, VOL. II 11-17-05

1 didn't want to go any further, and he testif ied that he testing because he was depending on

2 didn't do scientific

3 his case. 4

THE COURT: I'm talking now about the

THE WITNESS: I'm just talking about al I of

6 the (inaudible). THE COURT:

I'm talking about the part of

8 convicting Donnell. THE WITNESS: On the Donnell case? That's--

10 basically counsel did not address it other than to say 11 I've got a couple of witnesses to cast doubt or to make

12 a reasonable doubt argument, and he stopped. That's all 13 that counsel testified to that I remember at this point. 14

whether

THE COURT: So actually you don't know

15 or as to what degree (inaudible)? 16

THE WITNESS:

THE COURT: ,

efforts that

never told me.

And do you know

any of the

efforts

what

efforts

he made, any

- -

19 made to find other witnesses or to investigate those t~o ./ witnesses? 20 THE WITNESS:

I don't think he testified to

22 it, no. 23

THE COURT:

I just want to know what you're'

24 basing your testimony on. 25

THE WITNESS: Well, everything I've heard. BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

491

EVIDENTIARY HEARING, VOL. II 11-17-05

1 The fact that this other evidence existed, the fact that 2 counsel found a couple of wi tnesses and quit looking. THE COURT: My question is though you're

4 testifying he was inef fective. 5

I'm testifying

THE WITNESS: No, Your Honor,

6 he had an obligation to do an investigation. That's it. 7 That he had an obligation to investigate.

8 THE COURT: All right, you're testifying he 9 was deficient? THE WITNESS: Yes, sir.

11 THE COURT: And you're basing that upon his

12 testimony that he found a couple of witnesses and

13 then-THE WITNESS:

It stopped. As well as the fact

15 that for some reasons he distinguishes between a

16 reasonable doubt defense and an actual innocence 17 defense, which concerned me. 18

THE COURT: All right. Anythipg eise?

MR. OWEN: Just one question.

(By Mr. Owen)

With respect to your answers to the

21 Judge's question, when the Judge asked you what was

22 deficient about this investigation of the Donnell issue 23 and you said he found two witnesses and then stopped, . in 24 your view of the prevailing standard of practice, would 25 it have supported a decision to do further inv.estigation BETTY TATE, 3102 TOWNBLUFF DR. ~923, PLANO, TX. 972-596-9442

492

EVIDENTIARY HEARING, VOL. II 11-17-05

1 or no further investigation that the two witnesses he

2 found were both helpful on the Donnell issue? A

I mean they're invitations to investigate. Neither

4 one of these witnesses established his client's 5 innocence, but they definitely question his guilt, so

6 it's an invitation to investigate further until you establish one way or the other.

It satisfies none of

8 the standards that the Supreme Court put forth for

9 ending an investigation. Obviously finding those two

10 witnesses doesn't show that further investigation would 11 be fruitless; it shows that in fact it might be

12 fruitful. Doesn't the defense, under the prevailing standard

of practice, have an independent

have an obligation

15 to investigate independently the information the

16 prosecution provides him through discovery? A

You have to.

1 รก:~

Why is that?

Because - - I mean, unfortunately I might learn to

rely upon the state to make my defense.

17 ,

I have an

21 independent obligation to investigate, not only under 22 all the cases we're talking about, but under the ABA

23 standards and under the standard of care in this state 24 and in this part of the state. 25

Has

it been your experience that from time to time

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972 - 596 - 944,

493

EVIDENTIARY HEARING, VOL. II 11-17-05

1 the police may investigate an incident and interview 2 wi tnesses and might well acquire information but the it asks 3 defense might get different information because

4 different questions and have a different purpose for

5 asking the questions, and so on? 6

I know police officers that also left things out of and see, you

7 the report sometimes. You have to go out

8 have to talk to them. 9

MR. OWEN: Nothing further.

THE COURT: Anything else from the respondent?

MS. SCHMUCKER: No, Your Honor.

THE COURT: You may step down.

THE WITNESS: Thank you.

MR. OWEN: Your Honor, Mr. Skinner would

15 appreciate a bathroom break. 16

THE COURT: Ten minutes.

MS. ODEN: Your Honor, because of some

18 situations with our witnesses, the petitioner has agreed 19 to allow us to take a witness out of order. Dr. Mich~el 20 Chamales is an emergency room physician and he's been/up

21 for over 24 hours, and has a two hour drive to get back

22 home, so they've graciously allowed us to put on Mr.

23 Chamales next so he can get to bed. Is he here?

THE COURT:

MS. ODEN: Yes. And he's one of our experts, BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

494

EVIDENTIARY HEARING, VOL. II 11-17-05

1 so he was excluded from the rule. THE COURT: So you're not trying to catch a

3 flight, you're driving? DR. CHAMALES:

I'm driving but I

I don' t

5 mind how late I stay here, but I'm on duty in the

6 morning at 7:00 o'clock. THE COURT: Fine. We're going to get to you

8 tonight. DR. CHAMALES:

I don't mind how long I stay,

10 that's not a problem, Judge.

11 THE COURT: We'll take a ten minute recess. (Short Recess)

12 13

THE COURT: You may proceed.

MS. ODEN: Thank you, Your Honor. Respondent

1S would call Dr. Michael Chamales. 16

THE COURT: Come right on up here and take

17 this oath, please.

1~~ (Witness Sworn) //

THE COURT: State your name and spell your

20 last name, please. 21

THE WITNESS: My name is Michael Hood

22 Chamales, C-h-a-m-a-I-e-s. 23

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

495

EVIDENTIARY HEARING, VOL. II 11-17-05 MICHAEL CHAMALES. Called bv Respondent (Sworn)

1 2

DIRECT EXAMINATION

5 BY MS. ODEN: 6

Dr. Chamales, go ahead and tell us where you work

7 and for how long you've worked there.

8 A For the last seven years I've worked at Highland Medical Center.

I am the emergency room medical

10 director, as well as the trauma director at Highland

11 Medical Center of North TexaS. 12

I'd like to talk a little bit first about your

13 education. Can you tell us where you got your 14 Bachelor's degree and what you studied?

15 A Yes. I actually got an Associate in Science from 16 Amarillo College, and then went to the University of 17 Texas in Aust in where I rece i ved my Pharmacy degree,

18 then I went to the University of Texas Medical ~ranch in 19 Galveston where I received a Masters in Pharmacology,

20 and also attended medical school where I graduated in 1974.

I then went to the University of Oklahoma and did

22 a straight medicine internship and then went to the 23 University of Oregon, Portland, Oregon, and received my

24 residency in dermatology. 25 Q Were you

the

recipient of any special honors while

BETTY TATE, 310i TOWNBLUFF DR. #923, PLANO, TX. 972-S96-9442

EVIDENTIARY HEARING, VOL. II 11-17-05

496

your undergrad or

1 you were getting your education,

2 graduate? A

At the University of Texas I graduated with honors

4 in pharmacy. While I was a medical student I did 5 research and was awarded the outstanding medical 6 researcher for medical students ~n my medical school. 7

And how many hours of continuing medical education

8 do you receive each year and for how long have you been

9 pursu~ng your continuing medical education? 10

I usually do - - the requirement is 25 in Texas, and

11 I usually do 60 to 80. 12

And how long have you been getting your continuing

13 medical education? 14

Since I graduated in 1976.

Do you have any

I am Board eligible in dermatology.

And are you licensed in any other state besides

special certifications or licenses?

1~ Texas? 19

In Oregon.

Could you tell us a little bit about your work

21 experience? 22

I have worked in emergency rooms 100, 000 hours. To

23 put that in a proper perspective, that's two and a half

24 Government careers. 25

Then don't put it into perspective. Have you ever

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. II 11-17-05

497

1 taught or instructed emergency medical technicians? 2

I have. Three years at the university at Portland

3 community College, I was the instructor for the EMS

4 Department. 5

And were you ever a medical examiner?

I was a medical examiner in Oregon.

And for how long?

For three years.

Are you the director of an emergency services right

10 now? 11

Yes, I am.

And have you ever been published in a peer review

13 journal? 14

I have been published in three publications.

you belong to any professional organizations?

16 A Yes, I do. I belong to our local county 17 organization, medical organization, Lubbock-Garza-Crosby

18 County. MS. ODEN: May I approach the witness, Your'

19 20

Honor. THE COURT: You may.

21 22

Q (By Ms. Oden) Dr. Chamales, I'm handing you what's

already been marked as Petit ioner' s Exhibit 40. Can you

identify that?

Yes, I can.

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. II 11-17-05 1

What is that?

This is my curriculum vita.

And is that correct and accurate?

That is correct and accurate.

498

we offer Exhibit 40.

MS. ODEN: Your Honor,

MR. OWEN: Actually Respondent's 40, Your

7 Honor. 8

MS. ODEN: I'm sorry, Respondent's 40.

MR. OWEN: No objection.

THE COURT: Admitted.

(By Ms. Oden)

Doctor, have you met the defendant

12 in this case, Henry Skinner, personal ly? 13

I have.

In fact, did you treat him in the emergency room in

15 Pampa on October 14th, 1993? 16

I did.

MS. ODEN: May I approach, Your Honor?

17 ,

1l 19

THE COURT: You may. Q

(By Ms. Oden) Doctor, I'm showing you a page from

20 an exhibit that's already been admi t ted, Respondent's 21

E xh i bit 3 8, P age 4 6 .

Is that the -- I don't know what

22 you would call it, but the medical records for Mr. 23 Skinner on that date? 24

Yes.

What stood out to you about treating the defendant

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

499

EVIDENTIARY HEARING, VOL. II 11-17-05

1 in October of ' 93? 2

Say what?

What stood out to you about treating Mr. Skinner --

Well, this was a once in a hundred thousand hours

for me.

When Mr. Skinner presented to the emergency

6 room that night he was complaining that he fell that day 7

on a tool box and injured his ribs.

I examined him and

8 there was no bruis ing, no contusion, no break in the

9 ribs where he said he was hurting.

10 He asked for some pain medicine, Hydrocodone.

11 As I always do, I prof i Ie the ir al lergies . Anyone that 12 comes in wi th any kind of trauma, or complaining of

13 migraine headaches, or back pain, and I saw that he was 14 allergic to Codeine, Vistaril and Toradol. 1S

Let me stop you right there. When you say you saw

16 that he was allergic to those three things, how did you

17 know he was allergic to those things? 18

Well, I don't know. You know, there's no way to

19 know if someone is allergic. In fact, when I say I 20 profile people, I look at these because many times drĂ&#x2122;"g

21 seekers come in and they will put down specific things

22 that they are allergic to. 23

I'm sorry, let me stop you right there.

Those

24 three things, were those self -reported allergies of Mr. 25 Skinner? BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. II 11-17-05 1

Well, he reported them as allergies, yes.

And what were those three drugs again?

Codeine, Vistaril, which is an

500

antihistamine , and

4 Toroidal, which is an 1M inj ection similar to Ibuprofen. 5

When you say that you profile someone, tell us what

6 you mean by profiling someone? A

What I mean is when they come in with inj uries or

8 complaints that we cannot verify by x-ray or labs, such 9 as migraine headaches, back pain, an inj ury in which we

10 see no evidence that there was any inj ury there, they're

11 just telling us that, you look at -- I'll get their 12 allergies to see if they are directing me towards a single medication that they like.

Drug seekers many

14 times will like Demerol, some will like Nubain, some will like Stadol.

If they like Stadol they'll say

16 they're allergic to Nubain, or they say they're allergic 17 to Demerol, they'll say they're allergic to CodeĂŹne and "

1~ Hydrocodone, and we have -- and then we become a iittle

19 suspicious of these patients, especially when there's no 20

physical evidence that they have had an injury.

If it turns out later that there is physical

22 evidence of an injury, does that conclusively mean that 23 they were not drug seeking when they came in? 24

It makes us very, very suspicious, and if we have a

25 demonstrable inj ury present we will treat their pain to BETTY

TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

501

EVIDENTIARY HEARING, VOL. II 11-17-05

1 the point where they will have relief, absolutely.

2 Q So when he told you or when he told the nurse that 3 he was allergic to those three things, what was your

4 next step in healing him? 5

Well (inaudible) and we were getting x-rays of his

6 chest and of his ribs, and sometime pursuant to this we

7 observed him taking syringes and putting them on his

8 person. 9

And were you paying special attention --

Yes, we were paying special attention.

I asked the

11 nurses to watch him i I always watch them. 12

And what does taking those syringes in the

13 emergency room indicate to you? 14

It indicates that he is a drug abuser that uses

15 drugs intravenously. 16

Can you look at the previous page in those medical

17 records, page 45. What is the date on that page of 18 those medical records? 19

The date on that is September 21st.

Is this part of the medical records that you were

21 asked to review in preparation of your testimony today? Right. A 22 23

Do those records confirm your opinion that Mr.

24 Skinner is probably a drug seeker and addicted to drugs? 25

MR. ROB INSON: Obj ect ion, Your Honor. First

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

502

EVIDENTIARY HEARING, VOL. II 11-17-05

1 of all, he's not given such an opinion, and second of 2 al I, he's not ~ - I see no indicat ion that he's qual i f ied

3 to give such an opinion. All he has testified to is the 4 one incident where he saw some syringes taken by Mr.

5 Skinner, and he's testified generally about looking for 6 poss ible drug abusers, but he has not given an opinion

7 that Mr. Skinner is a habitual drug abuser, and I just

8 don' t think he's qualif ied to do so. THE COURT:

(By Ms. Oden)

Sustained. Doctor, is part of your training as

11 a emergency room physician, and your pharmacology and

12 pharmacy training, is that geared to help you identify 13 when people are seeking drugs because of an addiction

14 and not because they're suffering pain? It is part of our training certainly in the

emergency room.

States now because there's a whole class of drug abusers

1g~

in which just come to the emergency room.

buying street drugs, and they come for emergency room

physicians to be their drug dealers, and it is a huge

It is a huge problem in the United

They're

not

21 problem, and we have to be very careful about it because 22 unfortunately if we give medication to one person that

23 is a drug abuser and there is a network out there, then

24 the next month we pay for it with multiple drug abusers 25 coming through our emergency room. BETTY TATE, 3101 TOWNBLUFF DR.

#923, PLANO, TX. 972-596-9442

503

EVIDENTIARY HEARING, VOL. II 11-17-05

Q And is that just your opinion or is that something

you've also learned in your continuing medical --

A Continuing medical education and experience, and

from all the other emergency room doctors that

to. In fact we - - as the medical director, I bring them

in and tell them they will not give narcotics unless

there is a demonstrable reason of course,

the ones that come in and work one day a month, because

we pay for it the rest of the time that they do that,

I talk

and especially

and they'll actually call back in and say, "Is Dr. So

and So there," because they want to come ~nand see that

doctor that gave him some narcotics, or drugs that they

were seeking, and we do not give addicts drugs.

Q Based on your training and your experience, and

your education, are you abLe to form an opinion as to

whether Hank Skinner was seeking drugs or was addicted

to drugs in coming to you for pain killers?

A From my experience he was a drug seeker.

Q Does the page of records

to, Page 45, does that medical report conf irm your

opinion?

A It certainly adds on to my opinion, yes, mostly

substantiates it, yes.

Q Can you tell us what the symptoms of an allergy to

Codeine, or if a person is allergic to Codeine ,what

that I asked you to'refe~

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. II 11-17-05

504

1 symptoms would be demonstrated if they took Codeine? 2

usually if you have an allergic reaction to an

3 opiate narcotic, any of them, it's usually a urticarial 4 or hives type reaction, and that can also happen in the

5 stomach. When they take it they'll become nauseated and 6 vomit, but that's the main reaction because all narcotic

7 opiates, if taken in high enough doses, will cause a

8 release of histamine and you'll get a urticarial reaction. That is the most common reaction. 9 10

What medications would not be appropriate to

11 prescribe to a person who had a Codeine allergy? 12

Either natural or a synthetic opiate of any kind if

13 they were allergic to Codeine. 14

Would that include Hydrocodone?

It would include Hydrocodone.

IS that also called Vicodin?

17 "

Vicodin, Lortab.

Are you familiar with a medication called Talwin?

I am.

And is Talwin in that class of opiates?

It's a synthetic narcotic and I wouldn't give it to

22 someone who is allergic to Codeine. 23

Would you expect to see a similar reaction to

24 Codeine as you would to - - I'm sorry, to Talwin or 25 vicodin that you would see to Codeine in someone who is BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

505

EVIDENTIARY HEARING, VOL. II 11-17-05

1 legitimately allergic to Codeine? 2

I would.

did you

I did.

And based on your reading of that affidavit, was

part of the records that review an affidavit from

I asked you to review, ~

a lady named Lori Brim?

7 her description consistent with Mr. Skinner being

8 allergic to Codeine? 9

It's possible that it could have been a Codeine

10 allergy, but it's also possible and not well known but 11 it's certainly right in the PDR, that there's a compound 12 in Tylenol and Codeine called sodium meta-bisulfate.

13 It's the same bisulfates that we hear in the lay press

14 that you get in Chinese food and other things, and you 15

can have a very allergic reaction.

I just wanted to say

16 that having read this, there's no substantiation that he 17 had an allergic reaction. This is a lay person who

18 called a nurse, who said over the telephone this i.s an allergic 19 allergic reaction. That does not make it an

20 reaction. As a dermatologist and expert in allergic 21 reactions, I can tell you that out of 100 people 22 allergic to penicillin, possibly one of them are truly

23 allergic. Most of the reactions people have were virile 24 symptoms they had while they were simultaneously taking

25 this, so this is not true if he had an allergic BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

506

EVTDENTIARY HEARING, VOL. II 12-i7~05

1 reaction. Codeine, in fact - - what she describes here

2 is a perfect reaction which you get to sulfides, and 3 with the duration of only 45 minutes that even more 4

substantiates the issue.

If he was going to have an

5 allergic reaction to Codeine it would last much longer

6 than this. 7

How long would you expect an allergic

reaction

8 to 9

Well, at least until he gets treatment.

So it wouldn't go away on its own?

No, it would not go away.

Would an allergic reaction in Codeine make a person

13 demonstrate symptoms much like that of alcohol 14 intoxication, for example, dizziness or slurred speech? 15

It could if they were having difficulty swallowing.

16 Don't forget when you have urticaria or an anaphylactic 17 react ion, you can't breathe because you get water in u 1~; your lungs, your throat swells, and you can't talk, 19 so - - and that would be a slurred speech. 2 a Q Would you expect them to be dizzy or staggering?

21 A It's possible. 22 Q Would that also be a possible reaction to taking 23 alcohol and Codeine together? 24

That's possible, yes.

And lastly I'd like to talk to you a little bit

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

507

EVIDENTIARY HEARING, VOL. II 11-17-05

1 about the effects of Codeine on the body. Did you 2 review the testimony that was adduced at trial from the

3 expert, Dr. Lowry, who talked about the blood Codeine 4 level at 5: 48 in the morning, and the blood alcohol

5 level at 5: 48 in the morning? 6

Yes, I did.

I looked at those numbers.

I didn't

7 hear his testimony.

8 Q Does knowing what the blood Codeine level at 5: 48 9 in the morning was tell you what time they took the

10 Codeine?

11 A Absolutely not. 12 Q And so from looking at those later blood tests can 13 you, wi th any reliable certainty, predict what the blood 14 Codeine level was at a point earlier, say midnight? 15

You cannot.

And if you don' t know what level the Codeine was in

17 the blood can you accurately describe what a person's

18 physical capabilities were at midnight? . 19

You cannot do that.

What is meant by tolerance?

Tolerance is what you build up when you take a

22 drug, and tolerance can be very fast. There's a term 23 called tachyphylaxis, which you get to like Codeine and 24 a lot of other medications, such as cocaine, Codeine, 25 amphetamines, methamphetamine, where you bui ld up a BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

50S

EVIDENTIARY HEARING, VOL. II 11-17-05

tolerance very quickly.

That's why addicts continue to

2 take it and continue to have to have increased amounts 3 of these medications in order to get the same effect,

4 euphoria, a high, or you know, stress decreases, and 5 yes, the longer you take them the more medication you have to take, and it's also for alcohol.

Exact ly why

7 alcoholics can drink a tremendous amount more alcohol S than other people because they have to have more alcohol

9 to get the same effect. 10

room

Have you treated alcoholism in your emergency

11 on a regular basis? 12

We treat them on a fairly regular basis.

If a person who drinks to excess on a regular basis

14 had a very high level of alcohol, for example in this 15 case Hank Skinner had a .21 arguably at midnight, would 16 he be incapacitated in the same way that a normal person

17 who doesn' t drink to excess regularly? Absolutely not. We see people come into our A 1l 19 emergency room wi th .4 and . 6 and walk in, sit down, and 11'

20 I don't even know they've had alcohol, but I'd be close ...... 21 enough to smell it on their breath, because if you're a 22 long time alcoholic you can have enormous amounts of

23 alcohol and still function. 24

Thank you..

MS. ODEN: No other questions.

Pass the

BETTY TATE, 310i TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. II 11-17-0S

sa9

1 witness. 2

CROSS EXAMINATION

ROBINSON:

5 BY MR.

Good afternoon, Dr. Chamales. My name is Douglas

7 Robinson and I represent the petitioner in this case.

8 Dr. Chamales, counsel called your attention to 9 Respondent's Exhibit 38, Page 46. Do you still have front of you?

10 that medical report in

Yes. (Inaudible) Page 46.

THE COURT:

MR. ROBINSON: MEDS 046, Your Honor.

(By Mr. Robinson) Now this form -- at the time you

15 were working at Coronado Hospital in the emergency

16 room - - is that correct? Yes, sir. A 17 18

And this form was a ~ - I've seen several of these

19 forms at different dates and different times, so I tak~ 20 it that this was sort of a regular form that was fillĂŞd 21 out what, every patient who came to the emergency room? 22

Yes.

And I see at the top part of the form there's

24 typewritten material, or computer generated material 25

writing.

Is that information that would have been

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. II 11-17-05

510

1 entered by the admitting official?

2 A It could have been put in by a clerk before he ever

3 came back. 4

That's what I - - when the patient comes in I take

5 it, based upon my experiences in going into the 6 emergency room, you first have to get past the admitting

7 clerk or whatever, and they take some information and in

8 this particular case at Coronado Hospital the clerk 9 would take this information at the top of this form, and

10 then be normal procedure.

I suspect so. That would

And then that would be passed on with the rest of

by the medical personnel 13 the form blank to be filled out

14 in the emergency room itself? 15

Yes, sir.

Now there is some handwriting that's under the

17 nurse's history, sol think that that would have been "

1l filled out by a nurse? 19

Yes.

And then below that it says - - what does that say? .... 21 Physician's -- I'm looking at the printed part of the

22 form there about five lines down below the nurse's 23 history. Was does that say there? Physician's H & P~s? 24 Is that what that says? Do you understand what I'm

25 looking at? BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

HEARING, VOL. II 11 - 17 - 05

EVIDENTIARY

Yes, Physician's H & P's.

What does that mean?

That means my evaluation, history and physical.

Now it looks to me like the handwriting on this

511

5 particular form is the same for both the nurse's history Do you agree with that?

and the physician's H & P.

Yes.

So does that look to you l~ke the nurse's history

9 sort of ran on into the physician's H & P section of the

10 report? 11

Yes.

Is that your handwriting, Dr. Chamales?

No, thatJ s not my handwriting.

Do you know whose it is?

I have no idea whose handwriting it is.

Would it be reflected by the --

The nurse down there isS-p-a-t-o - - I have no

18 idea. 19

Okay, I don't want you to speculate, but it's not

20 yours in any event? That's her's. A 21 22 Q And based upon usual procedures you would expect 23 that it's probably the nurse that wrote that information

24 in there? 25

Yes.

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

512

EVIDENTIARY HEARING, VOL. II 11-17-0S 1

There's a signature for a physician down there.

2 that your signature? 3

That's my signature.

And up above where - - - in the printed form where it

5 says the physician called an attending physician, I see

6 somebody else's name was there and then crossed out and

7 your name is added; is that correct? Up above the black 8 line across the page where it says "charge cluster

above that.

9 information," right

They're putting in the patient's primary care

11 physician, and they marked that out and put my name in

12 there, because I was the emergency room doctor. 13

Now, you testified that you worked over 100,000

14 hours in the emergency room, correct? 15

Yes.

And how long ~ - over what period time did that

17 begin? (j"

Since 1973.

So that would be roughly - - what is that, 32 years .

ago?

Yes.

A period of 32 years. All right. And so it's been

23 roughly eleven years since this report was entered, so 24 would it be fair to say that you've worked in the 25 emergency

room about 30,000 hours since 1994, at

the

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. II 11-17-05

513

1 time of this report? 2

You're a little low.

A little low, okay.

It builds up over time,

4 increasing over time, does it not? 5

Yes, sir.

And I take it then that you have examined thousands

7 of patients during that time period? 8

That's correct.

In i ight of the fact that you've examined thousands

10 of patients since then, do you have a specific 11 recollection of this -12

If it's

Wait until I finish the question. Do you have a

14 specific recollection of this particular event, or are 15 you relying upon the report that's been shown to you? 16

I am not relying on the report. He is the only

17 patient that has been caught stealing syringes, during

18 all this time. 19

Well, let me ask you this. Who caught him stealing

20 the syringes? Was it you or the nurse? 21

I imagine it was the nurse.

It wasn't you?

It was not.

So your knowledge of his stealing the syringes was

25 knowledge that came

to you from the nurse?

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

514

EVIDENTIARY HEARING, VOL. II 11-17-05 1

From the nurse.

Now, you testified, as I recall, and correct me if

3 I'm not summarizing this correctly, but you testified 4 that it's a common problem at hospital emergency rooms

5 of people seeking --people desiring drugs coming in

6 there faking inj uries or complaining about things that

7 are not real in hopes that they'll get prescribed some their drug habit i is that

8 kind of a drug to feed

9 correct? 10

That's correct.

And so it's important to make sure that

where

such a patient on hand, to make

12 you suspect you have

13 sure that they have the real inj ury as opposed to the 14 lower back pain is hard to pinpoint and hard to

15 diagnose, correct? 16

Yes.

All right.

said - - I'm trying to interpret here or decipher the

handwriting but I think it says that he came in

In this particular case the nurse has

he do

was found voiding while standing. 21 you see those words there? Am I reading that right? Is that what

Yes.

And patient complains of - - is that what n cion

..'

24 means? 25

BETTY

Yes, sir. TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX~ 972-59~-9442

515

EVIDENTIARY HEARING, VOL. II 11-1 7~05 1

PatĂŹent complains of pain to right lower rib cage

2 and bruising and redness and swelling to 3

That's "no bruising, no swelling."

Oh, I see, "no bruising, no swelling

And there was no swelling.

What does it say after "swelling?"

"To area of complaint."

Oh, I see. And then

"And warm."

"- - warm and dry.

"skin pink - -. Ă&#x; Chest sounds clear."

Is that

11 what it says? 12

Yes, sir. would you say that Mr.

So in this particular case

14 Skinner might be - - from that description might be in 15 this category of somebody who is complaining of an

16 inj ury that wasn't real?

17 A It's possible, certainly possible. 18

Could you turn to the next page, whi ch is MEDS - 4 7.

19 MEDS-47 says that it has -- it's says it's a Coronado' 20 Hospi tal x- ray report, Dr. Abindoneo, and it's dated -the 21 same date as the report

we were just looking at, Page

22 46, right?

23 A Correct. 24 Q Do you see where

it says "fractures noted at the

25 arterial lateral aspects of the right 4th, 5th, 6th and BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

516

EVIDENTIARY HEARING, VOL. II 11-17-05

1 10th ribs? II 2

Yes.

Broken ribs are painful, aren' t they, Doctor?

They are painful.

And so despite what the nurse wrote about there

6 being no bruising, no redness, no swelling, the 7 radiologist reported that in fact he did have four

8 broken ribs? 9

He had broken ribs.

And it would not have been inappropriate in that

11 case, drug user or not, to have prescribed some

12 medication for pain? 13

I would have, yes.

And in fact, did you?

He rece i ved a shot of Norf lex.

Is that your handwriting in that box where it says

17 MEDS? 1

18t'

No, that's again the nurse's.

Well, I suspect that medical people, who have a

20 reputation for not beĂŹng able to write well, 21 nevertheless have also the ability to read handwritings 22 tha t other people can't read, so maybe you can interpret 23

that for us.

Maybe if you'll just read into the record

24 what it is that's said in that box. 25

MEDS 046. It says IINorflex 2 cc' s."

(Inaudible)

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

517

EVIDENTIARY HEARING, VOL. II 11-17-05

1 nurse's name. That says "upper gluteal area is after 2 cc' s. 2 (inaudible) I do not know what that

3 (Inaudible) MS. ODEN: May I interj ect, Doctor? Could it

5 be per Dr. Chamales? THE WITNESS: Yes, it could.

(By Mr. Robinson) Anything else that you c.an read

8 in that box? 9

Yes, it says given in the "right upper outer

10 gluteal area of (inaudible) arm." That's telling where

11 they gave the shot. 12

What is Norflex?

Norflex is a muscle relaxer.

Is it a narcotic?

It is not a narcotic.

Is it an opiate?

It is not an opiate.

All right. Now, this wasn't the only occasion that

19 you had to treat Mr. Skinner, was it? 20

It was not.

Do you have a specific recollection -- without

22 referring to these documents do you have a specific 23 recollection of having treated him on other occasions? 24

I - - somewhere about a month and a half later,

25 early in the morning around 6: 00 a. m. BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. II 11-17-05

518

i Q And that was the night that he was arrested - - this 2 is the night that the capital murders at issue occurred,

3 correct? 4

That's correct.

Did you have occasion to treat him before this

6 event on 10-14-93? 7

Not to my recollection.

Could you turn, Dr. Chamales, to Page 26 in the

9 same exhibit? Here we have another Coronado Hospi tal

10 emergency room report, and if we look at the nurse's 11 history there we see your name there, do we not? 12

Yes.

Does that refresh your recollection as to whether

14 or not you had seen Mr. Skinner on a previous occasion? 15

No.

You have no recollection --

I have no recollection of this one.

1~:

And the date of this one - - the date of this report

is 7-4-93.

Uh-huh.

And this report says - - I'm going to do my best to

read it here.

Do you see that?

It says in the nurse's history -- there's

23 a first word there that's cut off in the copying, and-I

24 don't know what that is, but the next word is sutures 2S put in right hand times one. Does that mean one week BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

519

EVIDENTIARY HEARING, VOL. II 11-17-05 1

ago?

A One week. Q One week ago, and then there's another word cut off

at the beginning of the next line and then it says Dr.

Chamales' incision, reddened, swollen, white patches

along sutures, then I'm not sure what the last word is

in that line, and then the next line says - - probably

says cut it while sharpening a knife, and then I'm not

sure what it says on the next line ÂĄI'm not sure what

any of those words say on the next line.

So you have no recollection of actually

11 12

suturing Mr. Skinner's hand sometime in late June of

1993?

A No, sir.

Q And you don't have any recollect ion of that --

those sutures later -- red, the swelling, white patches

appearing along the sutures.

A I wouldn' t know that unless they specifically

mentioned it.

two days out of every week, and you know, unless they

brought this to my attention I wouldn' t have known. It

was taken care of.

Q Now, if we go to the other occasion that you saw

Mr. Skinner, I believe the report on that is at MEDS-35.

This one is

Ăş:

I drove from Lubbock to Pampa probably

dated 2-1-94.

This would have been the

BETTY TATE, 320l TOWNBLUFF DR. #923, PLANO, TX. 972-S96-9442

520

EVIDENTIARY HEARING, VOL_II 12- 17 - 05 1

morning following the murders.

Is this a hospital

2 report of the occasion where you saw him that night? 3

Yes.

And --

This is the first time I've seen this report.

I'm

6 sorry. 7

And you did not in fact treat Mr. Skinner that

8 night; is that correct? 9

No, he recognized me and didn't want me to suture

10 him. 11

And once again he had a cut in his hand, correct?

That's correct.

And do you recall specifically encountering him

14 that night, and his refusal to have you sew up his hand? 15

I recall that, yes, but not the one before.

It's

16 not very often that someone who has an emergency

17 refuses, unless they actually wanted their own doctor to u 1 ยกt: come in. 19

Well, did he express to you that he didn't want you

20 to sew up h~s hand again because you didn't do avery

21 good job the first time? 22

Well, I don't remember why he refused.

He jus t

23 refused. 24

Gi ve me a moment, Doctor.

I need to look for

25 another page... well, I don't think I really need to ask BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

521

EVIDENTIARY HEARING, VOL. II 11-17-05

1 you anymore questions about this exhibit.

2 Let me turn to some of the other things that

3 you've teBtified to. 4 Dr. Chamales, going back to your testimony 5 about being careful about giving unnecessary drugs to

6 drug users, it's also part of your job as a physician to 7 make sure that you are treating people who are truly ill

8 or injured; isn't that correct? 9

That's correct.

10 Q In fact, you take a Hippocratic oath to make sure 11 that you're providing medical care to those who are

12 seeking it, right? 13

I have taken an oath.

You testified about allergies.

I don' t see in your

15 background that you are an allergist. 16

I'm a dermatologist and

we see - - as well as an

17 allergist the dermatologist is probably the number two 18 for taking care of allergic reactions, if not nĂ&#x2122;mber one

19 with the allergist. 20 Q A dermatologist is a physician who specializes in 21 the treatment of the skin; isn' t that correct? That's correct. A 22

23 Q And is it the reason that you often see and deal 24 with allergic reactions is because one of the symptoms

25 is it manifests itself on the skin? BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

522

EVIDENTIARY HEARING, VOL. II 11-17-05 1

That's correct.

I am - - let me ask you this. Do you have training

3 in toxicology?

4 A We trained - - toxicology was a part of pharmacology.

It's usually the department of

(inaudible) , those names, and I

6 pharmacology/toxicology

7 certainly worked with Dr. Nash, who was our toxicologist

8 at the University of Texas, UT, the medical center when 9 I was in - - got my Master's degree in pharmacology. 10

And that would have been back in the early 1970' s?

Early in the '70's.

But since then you have not received any

'68 to '74.

13 specialized training in toxicology? 14

I have not.

And you have no specialized training in the

16 chemical composition of the opiate family, for example,

17 the narcotic family? t ;r

1 ยกJ,t

Oh, I certainly do.

You do?

To get a pharmacy you've got to have 44 hours of

chemistry. That's a lot of hours

it's like almost

22 two years out of five years of chemistry, and in 23 pharmacology and pharmacy school you had to memori ze 24

every drug formula.

I'm not saying I have them all

25 memoriz ed now, but to get through pharmacy we had -BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

523

EVIDENTIARY HEARING, VOL. II 11-17-05

1 every drug that was put out we had to memorize it and

2 ought to be able to write it. 3 Q Okay, I understand. That still though was more 4 than 32 years ago, isn't it? 5

It's been a while, yes.

Now, Dr. Chamales, as I recall you testified - - you

7 said something to the effect that T' m not sure my notes

8 are very accurate, so maybe we have to repeat it, but most people 9 you were saying something to the effect that

10 who think they are allergic to penicillin aren't really 11 allergic to Penicillin. Is that did you say

12 something to that effect? That's correct. A 13 14

Out of maybe a hundred people, one is really truly

15 allergic to Penicillin? 16

They did a study of 278 and I cannot recall the

17 study, where they took them in the hospi tal and actually

18 injected these people with Penicillin and contrĂ&#x2019;lled it, 19 and only four had an al lergic reaction out of 2 7~. 2 a Q Okay. And so there are people walking around w'hĂ&#x201C;

21 think they are allergic to Penicillin but they really

22 aren't; is that correct? 23

That's correct.

24 Q And they think they're allergic to Penicillin 25 because they maybe have had some kind of an adverse BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

HEARING, VOL. II 11-17-05

EVIDENTIARY

524

the past? 1 reaction to a Penicillin shot in

The main cause of this problem wi th allergies,

3 supposedly in Penicillin, is physicians giving 4 Amoxicillin to children without doing a blood count to

5 see whether they have a viral infection, hence the 6 children develop what we call a viral exanthem, which is 7 a very light and mildly red dermatitis on their body,

8 and most of these physicians, when someone calls and 9 says oh, my child has got a rash, they say well, you're

10 allergic to the Amoxicillin or the Penicillin, stop it, 11 or even if they see it they're not expert enough to know 12 the difference between a viral exanthem and an allergic

13 reaction. 14 And I hate to say that about some of my 15

colleagues, but that's the truth.

That's where they get

16 all this high number of allergies, supposedly, to

17 Penicillin. ,,

All right.

So even doctors, let alone lay people,

19 misinterpret the reaction to a particular drug and /

diagnose it as an allergy when it is not?

That's true.

But in any event, there are a lot of people walking

23 around who think they're allergic to Penicillin when

24 they are not? 25

That's right.

BETTY TATE, 3201 TOWNBLUFF DR. #923, PLANO, TX. 972-S96-9442

EVIDENTIARY HEARING, VOL. II 11-17-05

525

1 Q Suppose you had a patient who came into the 2 hospital emergency room and they were suffering from 3 some sort of an illness for which Penicillin would be 4 the normal treatment, or the recommended prescription,

5 for a person not allergic, but this person reports to

6 you that they are allergic to Penicillin. Does that 7 person then - - is that person then subj ected to some

8 kind of a test to see whether they're truly allergic to 9 Penicillin, or does the emergency room physician try to

10 prescribe something as a substitute? Do they take that 11 as a fact and try to prescribe something that isn't so

12 (inaudible)? 13

Yes, because we're very for.tunate to have

14 antibiotics now where we always have something that will

15 work instead of Penicillin.

16 If they absolutely need Penicillin and there's 17 no other way out of it, they can be taken into the 18 hospital under controlled conditions and very s~all 19 amounts inj ected into the skin and see if they're

allergic. That doesn' t happen very often, but there 21 case studies for that, but basically we use another

รกre

22 antibiotic. Yes, we take their words for it,

23 absolutely. 24

And it's just easier to do it that way, and much

25 less inconvenient for the patient. BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

526

EVIDENTIARY HEARING, VOL. II 11-17-05 1

More practical.

Much more practical and --

An d it' s sa fer.

And safer?

Right.

Okay.

Is the same true of other medications that

7 people might be allergic to, and let's just go to 8 Codeine as an example. There are people who are Codeine ; is that correct?

9 allergic to

There are people who have allergic reactions to

11 Codeine. 12

Are there people who think they might be allergic

13 to Codeine but there's no real evidence that they are? 14

That's also true.

And do people sometimes come in and report to

16 you - - do people with no apparent drug abuse history,

17 with real ailments, come in and report to you or other tr

1stf emergency room physicians that they are allergic to

19 Codeine? 20

A few.

And if they do come in and report

that they're

22 allergic to Codeine and they're suffering from some 23 ailment for which Codeine would be normally prescribed",

24 are they prescribed - - are they like Penicillin 25 patients, is their allergy to Codeine accepted as fact BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

527

EVIDENTIARY HEARING, VOL. II 11-17-05

substitute, or are they

1 and they're prescribed a

2 subj ected to some type of test to see whether they're

3 really allergic to Codeine? 4

We usually use something that is not a narcotic, a

5 Codeine synthetic or natural, to control their pain. 6

And what would be a substitute for Codeine to

7 control the pain that in your opinion would not create

8 an allergic reaction? 9

Well, i would use one of the what we call the non

10 steroidal anti-inflammatories, like Motrin, Naprosyn. 11

Now, you testified that if - - again I'm going to

12 have to maybe ask you to clarify what your testimony 13 was, but I believe you testified that if someone was

14 allergic to Codeine then it would be unsafe for that

15 person to take any other opiate - - the words I wrote 16 down here, natural or synthetic; is that correct? I would never prescribe it if they came in and told

me that.

I would never prescribe a natural or synthetic

19 opiate to anyone who is allergic to any other natural 'or

20 synthetic opiate, or gives a history of that. 21

Okay.

I believe you testified that Codeine -- that

22 Codeine is a natural opiate; is that not right? It's a derivative of morphine, which is a

derivative of Heroin.

semi - synthetic.

But it's not natural.

It's a

It has an acetyl group put on the

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

528

EVIDENTIARY HEARING, VOL. I I 11 - 17 - 05 1 morphine, and it's less potent than morphine. 2

And your testimony is that first of all the

3 Hydrocodone is a synthetic opiate i is that correct? Am

4 I saying that right? A

Yes, it's just a synthet ic opiate.

(Inaudible) ,

6 which is another product of morphine. 7

And it is your belief that if someone is allergic

8 to Codeine they are also allergic to Hydrocodone? 9

That is what I would presume.

And you presume that because they're both opiates?

Yes.

Before you came here to testify did you consult any

13 medical textbooks or anything to that affect to see 14 whether or not - - see whether or not in fact Hydrocodone

15 metabolizes into Codeine? 16

It crosS reacts with Codeine.

Explain that, sir.

Well, I mean if there's a -- there's a cross --

1~(

19 possible cross reactivity. 20

You say possible cross reactivity. Does that mean

21 that it might sometimes happen and might other times not

22 happen? That i S correct. A 23 24

And you base that on consul ting medical texts

25 before you came here to testify? BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. II 11-17-05 1

Correct. Did you consult - - or what did you consult?

Pharmacology Textbook of Pharmacology."

And when did you consult those textbooks?

This

Just after you were contacted by the Attorney

529

week .

7 General's Office to come and testify in this case? 8

Yes.

Do you know whether it's the practice of other

10 physicians to not prescribe Hydrocodone for a patient 11 who reports an allergy to Codeine? 12

Smart physicians don't. There may be some out

13 there. We had an incident just this week where one of

14 our phys icians has to go for a peer review who gave a said they were allergic to aspirin, gave her

15 child who

16 Lodine, which is a non steroidal, an aspirin base 17 medication, and he should have known better. 18

But we're talking about a different drug

We're talking about an allergy --

- - correct?

It's the same principle. Cross re-activities

between all the opiates.

If you're allergic to one,

23 there's a very high chance you're going to be allergic

24 to another, or all of them. 25

So it's your belief that all good physicians would

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

530

EVIDENTIARY HEARING, VOL. II 11-17-0S

1 follow your practice, which is not to prescribe 2 Hydrocodone to someone who is allergic to Codeine? 3

The same practice.

And you're sure that that's the accepted practice

5 across the medical profession? 6

Should be.

I didn' t ask should be.

I want to know whether

8 that is the -A

I don't know that that is a policy.

I know at

10 least the ones I have worked with don' t do it. 11

THE COURT: Anymore questions?

MR. ROB INSON : Yeah, I do, Your Honor.

THE COURT: Let's speed it up at this time.

14 It's too long a pause. MR. ROBINSON:

I'm sorry, Your Honor.

I can't

16 think as fast as some of the other lawyers in the room, 17

I guess.

I apologize,

THE COURT:

( Inaudible). You need to speed it

19 up a little. 20

(By Mr. Robinson)

You testified about having

21 reviewed the affidavit of Lori Brim?

22 A Yes. 23 Q And you testified that there was no substantiation

24 from appearing from that affidavit that there was in 25 fact an allergic reaction. BETTY TATE, 31U1 TOWNBLUFF DR. #923, PLANO,TX.972-596-9442

531

EVIDENTIARY HEARING, VOL. II 11-17-05 1

That's true. No medical personnel ever saw him

2 when he was having this reaction. 3

But that doesn't mean, though, that he didn't have ~

4 an allergic reaction, does it? 5

It does not.

It's just not substantiated by a

6 medical person. 7

I understand that, but it does not mean that he

8 didn' t have an allergic reaction? 9

No, it does not.

And isn't it the case that many people who think have never had

11 they have an allergic reaction to a drug

12 it actually substantiated by a physician? 13

That's true.

In fact, we just went over that with Penicillin,

correct? I need an audible answer.

I'm so r ry , sir if

16 I 17

Yes. MR. ROBINSON: Your Honor, let me con~ult with

second .

counsel for just a

I may be done now. (Short Pause)

MR. ROBINSON: That's all I have, Your Honor.

22 Pass the witness. 23

THE COURT: Any re-direct?

MS. aDEN: Briefly.

25 BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

532

EVIDENTIARY HEARING, VOL. II 11-17-05 RE-DIRECT EXAMINATION

1 2

3 BY MS. aDEN: 4

Doctor, I'd like you to look at his medical

5 records. Do you still have them up there? 6

Yes.

Go ahead and look at Page 29. These are the

8 prescription records for the defendant from Sharp 1993 it looks 9 Pharmacy, and I see that on June 26th of

10 like you prescribed some Talwin to the defendant 4 11

Yes, I did.

Would you have prescribed Talwin for him if he had

13 told you on that date that he was allergic to Codeine? 14

Probably not.

I also see that two days later he was prescribed

16 more Talwin from a Dr. sisk; is that right? 17

That's what this record shows.

Back on the line where it's your prescription, prescribed 15

19 where it says ß QTY 15, ß does that mean you

20 individual tablets for him? 21

15 tablets, yes.

Would you expect a person to need more than 15

23 tablets of the same drug to last two days, or to last 24 four or five days? 25

That's a huge list of tablets. One every four to

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

533

EVIDENTIARY HEARING, VOL. II 11-17-05

1 six hours with a maximum of six. That is, if he was

him through the

2 taking them around the clock to get

3 night. 4

So if he was taking one every four to six hours,

day, 1S tablets would have lasted him three days?

5 six a

6 Is that about right?

7 A Approximately. 8

Is it consistent with your experience and your

9 training if a person who is a drug seeker and possibly

10 addicted to drugs, that they will saek out different 11 doctors to prescribe pain killers for them, perhaps in 12 an overlapping fashion?

13 A Yes, they will go to different emergency rooms and 14 different doctors. 15

So when you look at this part icular page of

16 pharmacy records and you see that he was getting Talwin

17 and then Talwin and then Darvon and then Darvon,would consistent with telling you that he was seeking

18 that be

19 pain medication for their addiction? MR. ROBINSON: Obj ection, calls for

21 speculation, Your Honor. THE COURT: He can answer. Overruled.

22 23

In my opinion that was a lot of narcotics within' a

24 fairly short period of time. 25

(By Ms. Oden)

Go ahead and turn

to the next page,

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

534

EVIDENTIARY HEARING, VOL. II 11-17-05

1 Page 30. Do you see anything on this page of pharmacy

2 records, which looks like it'.s from a different 3 pharmacy, Dean's Pharmacy in Pampa, Texas. Do you see 4 anything over these dates or these medications that

5 would confirm your opinion about Henry Skinner? A

Well, on the second line, on 7-4, Henry Skinner got

7 20 Hydrocodone, and then got evaluated by Dr. Sisk on 8 7 - 6 he got 20 Darvocet - - no, that was Dr. Jude, and

9 then on 7-6 he also went to see Dr. Sisk and got six

10 Lortabs. 11

And what is Lortab? Is that a narcotic pain

12 killer? 13

Yeah, that's a Hydrocodone.

And can you

It's Darvon.

Is that also a narcotic pain killer?

It is a narcotic.

And at the bottom, the Hydrocodone, that's also a

tell us what is Propoxyphene?

1',.

19 narcotic, if I remember correctly. 20

Yes.

Go ahead and turn to Page 31. This

is from the

22 Wal-Mart Pharmacy, and it starts in September of '92 and 23 goes to October of ' 93. Do you see anything in this 24 list of drugs prescribed to Henry Skinner that confirms

25 your opinĂŹon? BETTY TATE, 3101 TOWNBLUFFDR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. II 11-17-05 1

535

Well, also in this same time period from June to

2 early July here's 60 Hydrocodone tablets on the 29th. 3

The 29th of?

Of June. On the 28th he got 24 Talwin, so the next

day he got 16.

In that period he had an enormous amount

6 of narcotics, drug medication. Can you look on Page 31, the entries for June 8th

of '93 and June 11th of '93.

Can you tell us what is

9 Toradol? 10

Toroidal is a non steroidal anti - inflammatory.

Is that one of the medications that Mr. Skinner

12 told you or told the nurse that he was allergic to? 13

Yes.

Are any of the questions that defense counsel asked

15 you make you to reconsider your opinion? 16

No.

And I guess the last question isif a person gets

18 an ~nfection around some sutures, is that an inaication 19 that the doctor that gave them the

sutures didn't do ~

20 good job the first time? 21

People who abuse drugs and alcohol or Codeine we

22 see an increased - - it is toxici ty, so we see an 23 increase in infections, just like a person who has

diabetes, has an increase in infections. Right now 25 emergency rooms allover the Uni ted States are seeing 24

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

536

EVIDENTIARY HEARING, VOL. II 11-17-05

1 multiple what we call furuncles or carbuncles, which are

2 little boils, and people come in with those. We run 3 drug screens on them mainly because most of them are 4 a high maj ori ty of them are dope users. So they get

5 infections easily if they are abusing drugs. 6

So would the fact that Mr. Skinner's stitches

7 didn' t heal and in fact became infected, be another

S factor that confirms your opinion that he was addicted

9 to drugs and -10

It certainly one of the factors, yes.

So the ~-

Because I very seldom have infections in sutures.

Okay, thank you, Doctor.

MS. ODEN: No more questions. Pass the

15 witness. 16

THE COURT: Any re-direct?

MR. ROBINSON: No, Your Honor. ll

THE COURT: A couple of questions. What is

1St(

19 Xanax? THE WITNESS: Xanax is a diazepam.

It's a

21 sedative. Helps people with anxiety and nervousness. 22

THE COURT: And taken with alcohol it would

THE WITNESS: It would potentially add on to

24 alcohol. 25

THE COURT: And I don't know -- you testified BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-3442

537

EVIDENTIARY HEARING, VOL. II 11-17-05

1 as to tolerance (inaudible) that you've had people in

2 the emergency room at .40. THE WITNESS:

.40 (inaudible) highest.

them walk in all the time with a .40.

I have

.6 is about the

5 highest we see when they're walking. THE COURT: Now I've heard that .4 or .40 in

7 death... THE WITNESS: Only if they're not used to it.

9 You take a child and put him in a .3, he's going to be 10 out of it. The first time

they drink. When they come

11 in -- children come in at oh, 15, 1~, 17, their first

12 time out to go to a party and drink, if they're .3 they 13 are usually very (inaudible), out of it, or else they're 14 sedated; they'll go to sleep. They're out of it. But 15 people who drink a lot of alcohol their consumption

16 level is 17

THE COURT: Above. 40?

THE WITNESS: You wouldn' t go above .40.

THE COURT: Anything else as a follow up?

MR. ROB INSON: No, Your Honor.

MS. ODEN: No, Your Honor.

THE COURT: May this witness be excused?

MS. ODEN: Please.

MR. ROBINSON: Yes.

THE COURT: All right, you're free to go. BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

538

EVIDENTIARY HEARING, VOL. II 11-17-05

1 Call your next witness. MR. ROBINSON: Dr. William Shields, Your

3 Honor. THE COURT: State your name and spell your

5 last name for the record, please. THE WITNESS: william Shields, S-h-i-e-l-d-s.

WILLIAM SHIELDS, Cal led bv Pet it ioner (Sworn)

8 9

DIRECT EXAMINATION

10 11

12 BY MR. ROBINSON: 13

Dr. Shields, where do you live?

Syracuse, New York.

How are you employed?

I'm a professor of biology at State Ã¼ni versity of

17 New York, Col lege of Environmental Science and Forestry ll

1~ at Syracuse University. 19

And what is it that you teach there?

The main course I teach is animal behavior.

I've

21 taught for the last 26 years graduate courses in

22 conservation genetics, evolution and systematic, 23 ornithology. Graduate courses in genetics

behavior . . My

24 wife and I teach a course in Australia (inaudible) 25

Does any of your academic work relate to the

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

539

EVIDENTIARY HEARING, VOL. II 11-17-05

1 subj ect of DNA? 2

Yes.

How does it relate to that subject?

4 A DNA is the genetic material and somebody who has 5 spent half of their (inaudible) teaching and reading in

6 genetics, looking at the fundamental principals 7 associated with what DNA does, how it's transmitted, and 8 how it's distributed among individuals (inaudible) which

9 is population (inaudible). In addition, in the last 15 10 years I have done a lot of, quote, research and have DNA analysis.

11 practical experience in forensic

What is your forensic experience in DNA analysis?

I don't do forensic science myself.

that does animal genet ics.

other kinds of animals.

But you do have a lab that does DNA analyses?

Yes. We do some of the same sorts of things that

I have a lab

I only do DNA using the

(Inaudible) .

18 forensic scientists do with humans and we also do some

19 of the same sorts of things that are used forensicalli 20

on animals.

For example, trying to ident ify which

21 species is which from meat to the freezer, looking at 22 caviar eggs, to try to determine which species they came

23 from and things like that, that uses the same techniques 24 (inaudible) as used in other forensic labs that you 25 would deal with (inaudible).. BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

540

EVIDENTIARY HEARING, VOL. II 11-17-05 In addition, I consulted and testified in

2 numerous cases over the last 15 years, and as part of

3 that I also spent time with the literature, and also 4 looking at the actual data that was produced by forensic

5 laboratories in terms of case work and in terms of

validation studies particularly, in term s of the kinds of studies they do to show that they do what they say they would doi so I spend a lot of time at different

7 8

9 laboratories around the country looking at all the

basic research that they i ve done.

1D fundamental

In addi tion, I teach methodology courses,

12 scientific methods courses, which are also relevant to

13 (inaudible) do forensic work (inaudible). 14

You teach courses in forensic DNA science?

I taught courses, CLE courses i also given short

16 courses i lectures, to other groups, including legal course over 17 groups regular science groups in part of a

1iÂĽ the summer where we teach high school teachers that

19 teach forens ic science in high school, as a way of 20

slipping high school students, chemistrY1 physics and

21 biology without

them realizing that that's what's going

22 on. 23

Dr. Shields, I hand you what's been marked as

24 Plaintiff's Exhibit 30 and ask you if that's your

25 curriculum vitae? BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. II 11-17-05

541

It is.

This is a fair representation of your background

3 and experience over your professional care~r?

4 A It is, except it is dated July 7th, 2005, so there

5 are additional (inaudible). 6 Q Anything that you would add that is pertinent to 7 your testimony here today?

8 A A few more indications at (inaudible). 9

If you turn to the last page of that exhibit, it

10 describes I believe - - I don't have it in front of me 11 but it describes, I believe, your experience in 12 testifying and consul ting in forensic cases i correct? 13

It does.

How many times have you testified in a case

15 involving DNA?

16 A Over 150 and I've stopped counting. 17 Q And have you consul ted in other cases where you 18 weren't called upon to testify but you did coni~lt for 19 your forensic views and opinions? 20

At least 100 more times.

All right. Dr. Shields, what was it that you were

22 asked to do in this case? 23

You asked me to review mitochondrial DNA testing.

24 associated with your case. 25

Describe for the court what mitochondrial DNA is

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. II 11-17-05

542

1 and how it might differ from other forms of DNA. 2

Mitochondrial DNA is found in mitochondria.

3 Mi tochondria forms a part of advanced animal and plant

4 cells that are found when energy is released from cells.

5 The current best guess as to what happened is, early in 6 the evolution of life, mitochondria matured a separate 7 life form (inaudible) cell, which is what we're made of,

8 and it became a symbiotic relationship, such that 9 mitochondria has stopped (inaudible), so what they have

10 is their own separate DNA. That's (inaudible) that's

11 found in a circle instead of in a chromosome. That DNA

12 codes for a variety of chemicals that are in what we 13 call respiration production of energy by cells, and it

14 also has a non coding region whose function is unknown 15

(inaudible) .

of that circular chromosome, but it varies sufficiently

when you look at that part of the chromosome to look for

1g'

identity and relationships among individuals.

19 20

They also have some (inaudible) as a part

The part of the chromosome that varies divides into two parts by which we know them as HVI and HVII

21 It's defined as the beginning of the circle and the end

22 of the circle. Those two parts of mitochondrial DNA

23 (inaudible). Also part of what's examined by other 24 scientists that use mitochondrial DNA for other 25 reasons - - for example, in my case we did some research BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

543

EVIDENTIARY HEARING, VOL. II 11-17-05

1 on the Mexican wolf looking to see whether the Mexican

2 wolf population that was in captivity had been

3 contaminated by dog (inaudible). New Mexico Game & Fish gave us a grant

or gave me a grant.

at that using

to work with me to look

5 colleagues

I hired some

6 mitochondrial DNA, and we looked at it in terms of how

7 it talks about the relationships among individuals in

8 populations.

Are there There are other aspects (inaudible) that are

different as well (inaudible).

It's transmitted

12 primarily almost exclusively maternally. There's only millions of base 13 26,000 and change base pairs versuS

14 pairs that are found in nuclear DNA.

15 It does not recombine the segment as nuclear 16

DNA does.

It's a single chromosome, So it doesn' t have

17 some of the other properties, and we discovered the 18 difference from nuclear DNA in the sense. that

19 individuals can have more than one kind of mitochondri~l 20

DNA in the same individual.

The notion is that if yOti

21 take chromosomes from a different cell your body or my 22 body -- it's nuclear DNA, they'll be the same. But if 23 it's mitochondrial DNA they can be different. In fact,

24 each of us (inaudible). I f you could look at all the 25 mi tochondrial DNA of an individual you would find that BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. II 11-17-05

544

1 we all carry different mitochondrial DNA, because we

2 have huge majority of one type and have slightly 3 different much smaller number of a different type.. 4

Does mitochondrial DNA - - is it capable of

5 distinguishing between DNA of people who are related to

6 each other? 7

Yes and no.

Explain that.

Paternally related, no, especially if they are

10 close paternal relatives. A woman will give her DNA to 11 all her children, male and female, and her daughters

12 would pass that same mitochondrial DNA on to her

13 grandchildreni both male and female, but her sons will 14

not pass that on because it's maternally inherited.

15 that even though she's related to the children of her

16 son, the grandchildren's (inaudible) they don' t have the 17

same.

So some relatives will have different

1~: mitochondrial DNA and some relatives have the same.

19 Q If a woman has say four offspring, some male and

20 some female, will they all have the same mitochondrial 21 DNA as the mother? 22

Wi th rare exceptions. There's always the

23 possibility of mutation and when I say that's one way

24 there can be a difference between a mother and anyone

25 child. But that's not common. You can also have what BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

545

EVIDENTIARY HEARING, VOL. II 11-17-05

1 we were talking about earlier heteroplasmy. The mother 2 may actually have, f or example, two kinds of

3 mi tochondrial DNA. She can give both kinds to some of

4 her kids, one kind to a different kid, and the other 5 kind to the fourth kid, so there can be single - - what

6 we would call single digit (inaudible). (Inaudible) 7 maybe also be good for me to use that SO you know what

8 the sequence of DNA looks like.

9 Q Feel free to do that. THE COURT; Feel free to use that (inaudible)

11 (Witness at easel drawing and is inaudible). 12 A (Inaudible) so what appears is (inaudible) specif ic 13 alleles (inaudible). So if each of these is called base 14 pairs, what can happen is, is that an individual who has 15 this particular sequence, could produce only individuals

16 with one or the other (inaudible) site, but 17 mitochondrial DNA, an individual may carry this sequence 18

and may also carry this sequence.

So the difference

19 here (inaudible) compared to both of them, and her

20 children could actually end of having both kinds, or one 21 could end up with this kind and another one end up with that' s how you get (inaudible) "base 22 this kind, so

23 pairs" and what a sequencing react ion does, it looks at

24 the chromosomes along a certain number of the base pairs 25 (inaudible) literally just find out

BETTY TATE, 3101 TOWNBLUFF DR. #923,

(inaudible) . PLANO, TX. 972-596-9442

546

EVIDENTIARY HEARING, VOL. II 11-17-05

Dr. Shields, you testified that there can be

differences between a mother and her offspring.

Is that

3 what you would normally expect to see, or would you to see that their mitochondrial profile

4 normally expect

5 would be the same? 6

Normal expectation is they would be identical.

Because of

that is it

is it one of the

8 limitations of mitochondrial DNA that it is typically 9 unable to distinguish between people who are maternal

10 relatives? 11

It's a limitation if you're trying to distinguish

12 among people who are maternal relatives, but it's not a

13 (inaudible) . 14

Well, let's say that if you have a particular hair

15 and you're trying to determine whether it came from the 16 mother or a daughter, those are the only two people 17 you're interested in determining, would you expect that tl

1Ml mi tochondrial DNA test ing would produce any useful.

19 results? ....

He would not under most circumstances.

Now, is it also the case that mitochondrial DNA

22 test ing is capable - - that gives science i or sc ient ists 23 the capability to test biological material that could24 not be tested under normal nuclear testing methods? 25

Yes.

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

547

EVIDENTIARY HEARING, VOL. I I 11 - 17 - 05

r' t~:,

that

Q What kind of DNA is capable of being tested

nuclear testing can't deal with?

A Biological material that doesn't have nuclear DNA.

It's tested and it's primarily hair shafts. So you

don't need the root to the hair if you want to find out

something about itt s DNA, if it's mitochondrial DNA.

The second maj or use of mitochondrial DNA is for very

old and very degraded samples. The way that the current

DNA technology works is it uses what we call primers,

the way you look at spec if ic (inaudible) DNA

(inaudible). Those primers only look for part icular

sequences of a certain number of base pairs. When DNA

is in the environment, it's heated, the bacteria heated,

when ultraviolet light gets at it, it breaks, so that

segment that' sa thousand or two thousand base pairs

long will be cut in half and then in half again, and it

finally gets small enough but it's degraded away, it1s

no longer detectable, and that happens in things that we

do and things that are exposed to environment, SO the

second major class of tissue that is tested with

mitochondrial DNA that sometimes

old bones and old teeth (inaudible). Also it's used

almost exclusively in what is called ancient (inaudible)

that takes on the name of some ice fields in Switzerland

and (inaudible) mitochondrial DNA became the other DNA

BETTY

will not (inaudible) is

TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

548

EVIDENTIARY HEARING, VOL. II 11-17-05

1 (inaudible) . 2 ( Standing at easel and inaudible) 3

Dr. Shields, I'm going to bring up to the witness

4 stand, if I could, a couple of exhibits that I'm going

5 to ask you to refer to during your testimony.

6 I've opened the book to Exhibit 25, and I' 11 7 ask you if Exhibit 25 is something that I asked you to

8 review before you gave your testimony? 9

Yes, it is.

And did I ask you to focus particularly on the

last - - I think it's four pages.

here.

I'll just make sure

I f you go to Page 9, and the handwritten numbers

13 are on the upper right - hand corner - - do you see there a

14 laboratory report dated February 6, 2001? 15

Yes.

Is that the port ion of Exhibit 25 that I asked you

17 to focus on? It

1~'

Yes, it is.

And did I also ask you to review prior to your

20 testimony Exhibit 28, Plaintiff's Exhibit 28? I reviewed recently parts of that.

reviewed qui te somet ime ago.

Parts of that I

I got the parts of it that

23 were associated with mitochondrial DNA testing quite

24 some time ago, but not the material that's associated 25 with the nuclear testing, so the answer to the question BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. II 11-17-05

549

1 is yes, but two different times. 2

And it is - - only a portion of the materials in

3 Exhibit 28, only a portion relates to the mitochondrial

4 DNA testing? 5

Correct.

And

it ' s that portion that you have focused most of

7 your review on? 8

In essence almost exclusively focused on.

Now, is there anything else I asked you to review

10 before you came here to testify? 11

Yes.

Wha t ?

An affidavit by a Mr. Watson. this case.

14 responses associated with

Pleadings and

Did those pleadings and responses have to do with a

16 motion to do DNA testing in this' case? 17

Yes.

Permission to do it, and a motion al16wing --

18 not necessarily allowing it but...

19 Q Did I ask you to review any electronic data? 20 A Yes. 21 Q And describe that electronic data that I asked you 22 to review. 23

Well, the way I worked this

I asked you to get some

24 electronic data after I read this originally. Because 25 associated with any DNA test is electronic data. Both BETTY TATE, 3101 TOWNBLUFF DR. #923,

PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. II 11-17-05

550

1 nuclear DNA testing and mitochondrial DNA testing is the

2 same kind of machine, their sequences. They originally 3 were developed and invented to (inaudible) sequencing 4 but it turns out that they sequence by looking at size fragments of DNA that are created by

5 differences among

6 the process itself, and that means (inaudible) available

7 to look at size differences among the fragments of DNA S that are created by the PCR process on nuclear DNA, so 9 the process is done on the same kind of machinery and it

10 produces a result that allows one to look at sequences.

11 It also allows you to look at the 12 fragmentation by nuclear DNA, so I received from you a 13 CD that was purported to be the electronic data that's material that I received. On

14 associated with the

15 that 16

Was it represented to you to be material that had

17 been received by me from GeneScreen? .!

1St:

Yes, it was.

And representing the underlying electronic data to

20 Plaintiff's Exhibit 28? Yes. There are four fi les on it that are files A 21 22 associated wi th the nuclear DNA testing, which I didn't

23 even look at.

24 There is a file that's noted to be 25 mitochondrial DNA. Inside there are two files that are BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

551

EVIDENTIARY HEARING, VOL. II 11-17-05

1 listed as being HVI and HVII, and I did look at those,

2 using a program called Sequencer, which contains sequence navigator files from any ABI "

3 (inaudible )

4 sequence, whether it's (inaudible) or not. There are 5 two kinds of sequences, which reallydoesn' t matter, and actually look at those directly, and take that raw

6 we' 1 1

7 data and produce electropherograms and produce SEQ 8 files, which is what I did receive in the initial papers

9 (inaudible), which are written representation of the

10 sequence produced by sequencing chemicals and the

11 sequencing machinery that are used for these things.

12 Those files were openable but not 13

identifiable.

In addition, there were not enough files

14 in there to account for all of your reactions that are 15 presented in these paper SEQ files, so it's partial at 16 best that I was not able to figure out which samples

17 went to which data file, but yes, I did receive the 18 electronic data. 19

So did you find the electronic data that I gave yĂ&#x2013;u

20 useful or unuseful in trying to understand the written. 21 material I gave you in Plaintiff's Exhibit 28? 22

Unuseful.

Now Dr. Shields, if you could just briefly explain

24 to the Judge what goes on when a piece of biological

25 material is subjected to that mito testing. Just BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. II 11-17-05

552

1 physically what goes on in the laboratory to - - from the

2 samples coming in from whatever source it comes into the

3 lab from to the lab generated report. A

You know, it depends on the kind of test ing and

5 it'll depend on the kind of sample ,but typically what

6 happens is biological material comes in and there's a

7 chain of custody associated with it. We put it into a 8 locker, or a refrigerator, whatever, and remove one piece at a time.

What you're supposed to do is always

10 remove evidence before known samples because known 11 samples have lots of DNA and evidence samples may have not very much, so you want to prevent contamination.

13 that's the order you're supposed to take it out.

is , you in essence

14 Whatever it

15 burst it; make it open up, whatever cells or

16 mi tochondria existing, to release the DNA (inaudible) 17 it's cell DNA (inaudible). t

18('

How is that done?

Is it ground up or -- how is it

19 released? 20

You put in chemicals that literally burst the cells

21 and then you put in chemicals that wash what's been 22

opened up.

It's reinvolved, the cell parts (inaudible)

23 proteins and in essence it just leaves in the test tube 24 the DNA by itself, and when you do that effectively,

25 that's all that's left in that test tube. BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. II 11-17-05 1

553

Then you get to the second part of the

2 process, which is (inaudible) chain react ion

3 (inaudible) which is the Xerox everybody talks about

4 (inaudible) That can take a piece of DNA from a larger 5 DNA, take a smaller piece out of that DNA, make a copy 6 and continue to make copies of the copy, to the point 7 where you can produce billions of copies (inaudible)

S It's a very effective process for taking very tiny 9 amounts of DNA and making enough copies (inaudible) that

10 these copies will produce a result. 11 The danger associated with mitochondrial DNA 12 is that it uses more cycles of this reproductive event

13 than other kinds of DNA testing. Typically you use 28 14 cycles to produce DNA from evidence of a known sample in

15 nuclear testing. You use the same to produce it from a

16 knOwn sample of mitochondrial testing, but you can use

17 up to I think the FBI says 38 cycles, 1/Sth of a hair. lS

Most places use 4 cycles.

It could be as low as 36,

19 could be as high as 40, but that's on the laboratory

20 that does it. 21 And because you do more of them there's a

22 greater chance, and everybody agrees wi th this, that 23 there could be a contaminat ion event because it just 24 takes a little tiny bit of DNA external to the case in

25 question, whether it got there through the pick up of BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. II 11-17-05

554

1 evidence at the crime scene, or whether it happened in 2 your lab itself where somebody's DNA is floating around 3 literally or it's on a particular tool that you're using 4

to do these processes.

It can get into those samples

5 and cause the contamination event, so you have to be 6 much cleaner when you do a mitochondrial DNA than when 7 you're doing nuclear DNA in most circumstances, al though

8 you should (inaudible) always be.

9 The next stage ,after the chain reaction is 10

done with primer sets.

It will take specific pieces of

11 DNA (inaudible) and by having the particular sequence on

12 the primer it will attach to the DNA at a particular 13

place.

It will then roll the DNA out from that primer

14 to the other end so that you end up

with a piece of DNA

15 (inaudible) and that 1 it tle fragment (inaudible). 16 The way that mitochondrial DNA usually works 17 is there are sets of what might

be called micro

II (inaudible) look at 150 or 200 base pa.irs of that 19 region,

talking about 700. There will be another that .

overlaps wi th that and produces half of stain one, and

21 then you move down to the molecule base pair (inaudible)

22 and try to get the entire 700 (inaudible).

23 So by using these multiple overlapping primĂ¨rs 24 you're actually getting a test to make sure you get the 25 same results (inaudible) same particular place. The way BETTY TATEt 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

555

EVIDENTIARY HEARING, VOL. II 11-17-05

1 those places are annotated1 if you will, is they each

2 have a number, the entire mitochondrial genome

numbered (inaudible).

From base pair one to base pair

4 16,300, and whatever it is, and those numbers are

5 consistently used when one is looking at the 6 mi tochondrial (inaudible), so for example, the base

7 pairs between 73 and about 360 are HVII sets, HVI cites

8 are between 1,624 and 1,600 -- hold on. Further down

9 the line. 10 Those cites are where these primers will 11 produce the extra copies. At the end of that, you take 12 those and you put them into a Sanger reaction, which is 13 a way of looking at the actual sequence of these pieces,

14 and that's actually a very - - I think it's one of the 15 most eloquent things that anybody has ever designed in if you put in 16 molecular biology. When you realize that

17 base pairs have automatic stops on them the way the

18 react ions work is you put in a whole bunch of

19 (inaudible) by themselves wi th the associated chemicals 20 to allow them to be built into a DNA molecule and ife you

21 put in a whole bunch of them, you also put a whole bunch

22 of them that had stops in them which prevent the chain

23 react ion from going on through, so what could happen . 24 then is if you end up with the first one stops with only

25 (inaudible) data points, the next one would be three, BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. II 11-17-05

556

1 the next one would be four, the next one five, the next 2 one six, seven, and you'd end up with pieces of DNA that

3 are two base pairs long, two base pairs, and so forth 4 and so on (inaudible) down the line, so you've got the

5 (inaudible) . 6 The way that the sequence reaction works is it

7 does not work well from a live (inaudible), if you will, 8 at the beginning of that process, nor does it work well at the end of that process.

It works well in the middle

10 so that when you get a sequence you usually have to cut 11 off the two ends in order to look at the middle, because

12 you've got overlapping sequences at the end with respect 13 to the (inaudible). And that's. in essence in capsule

14 the (inaudible) tools that are used. Then when this information is generated has it been

through a

produced in a report to your client

You can literally -- the first thing you're going

1~l

to do is, you know, look at it.

It's presented again,

19 in two different ways. - ~

I'm trying to shorten this up, but I just want to

21 get - - I think we need to condense this part of the

22 discussion, but at least get to the point where we've

23 finished the process -24

The finished process is a graph that has peaks.

25 Associated wi th those peaks is the computer labeling BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

557

EVIDENTIARY HEARING, VOL. II 11-17-05

1 those peaks with A, C, T or G. That's the 2 electropherograms. That's what the electronic data is 3 presented to the person who is looking at it. It will 4 also output what I saw from your case - - this is called

5 SEQ file, as in two files, which is a written version 6 without the actual electropherograms with the limits of the

computer or by

7 the base pairs that were culled by

8 the operator of the computer instead of the computer,

9 and it's just a sequence of letters, A, C, T and G

10 (inaudible) used for various purposes. That's the two

11 outputs; that's the actual data. 12 And you can then compare samples and look at a

13 sample and say this sequence that's produced is by this 14 consistent with the sequence that was produced

15 sample, therefore I cannot rule out the possibility that 16 this person donated the sample. Or this sample is

17 absolutely inconsistent with this sample, and therefore 18 I can rule out this person as a potential donor for this

19 sample.

20 So if I have a piece of hair, or a piece bf21 tissue, I can say mitochondrial DNA is consistent with

22 or inconsistent with (inaudible). 23 THE COURT: How much longer are you going to

24 be? 25

MR. ROBINSON:

It'll be another half hour or

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

558

EVIDENTIARY HEARING, VOL. II 11-17-05

1 45 minutes, Your Honor. THE COURT: How many more witnesses after this

3 one do you have? MR. ROB INSON:

This is our last witness.

5 We'll rest after this witness, Your Honor.

THE COURT: And how many wi tnesses do you

7 have? MS. HAYES: Very short recall on two, we've

9 got at least seven lay wi tnesses, and our expert.

THE COURT: And who - - I don' t know how much

11 we can accommodate everybody, but who has obligations? MS. HAYES: Well, we do need to get our expert

12 13

out

as soon as possible in the morning.

He's lost the

14 flight tonight. We're going to re-book for tomorrow

15 morning, or early afternoon. 16

THE COURT:

You haven't done that yet?

MS. HAYES:

No, not yet.

MR. ROBINSON: Your Honor, I understand that

19 we have an agreement that we would take DNA as a piece

20 here,so Dr. Shields will be our last witness, and Mr. 21 Watson will be her first witness, her DNA expert, and

22 then we will take Dr. Shields out of order if we need 23 to, for any rebuttal of Dr. Watson. We'll just finish 24 up all the DNA and let those people leave the

25 (inaudible) . BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

559

EVIDENTIARY HEARING, VOL. II 11-17-05

THE COURT: Okay, we'll go tonight.

I t sounds

2 like we're going to go another hour and a half or two

3 hours. MR. ROB INSON: Like I say, I think 45 minutes

5 or so, hopefully will finish up (inaudible). 6

MS. ODEN: You're probably right, Judge.

THE COURT: All right, we'll go on with this

8 witness a little longer. 9

(By Mr. Robinson) Okay. Dr. Shields, let' sturn

10 back to Plaintiff's Exhibit 25, and that page is 9 and 11 10 of that exhibit. Did GeneScreen test some hairs, test

13 mitochondrially, hairs that were found at the crime 14 scene in the Skinner murder case? 15

Yes.

And are those results presented on Pages 9 i 10 and

17 11 of Exhibit 25? 18

The results are that presented on 9- and 10 has

19 statistical recitations on the next page.

20 Q And actually would it be fair to say that the 21 resul t s are at the bottom of the Page 9 and the top of 22 Page 10? 23

And there are conclusions on 11.

Now if we look at the table at the bottom of Page

25 10 -- well, first of all, what's the difference between BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

560

EVIDENTIARY HEARING, VOL. 1111-17-05

1 the table at the bottom of Page 10 and the table at the

2 top of Page 11? A

I think we've got different numbering.

(Inaudible) .

Those are just tables of the results,

5 comparative results, for HVI and HVII -- the two

sections of the control ( inaudible) region of

6 different

7 mi trochondrial DNA, and they are presented in a

8 particular fashion which make sense. When you think surface , it's going to look funny --

9 about it on the

10 presented as the difference that are seen in the samples 11 that were tested that differ from what's called the Anderson control, the Anderson sequence.

It's on

13 something called the Cambridge sequence as well, which 14 was the first sequencing of the mittochondrial DNA as

15 used as the standard that everything gets compared to, 16 so instead of having 700 base pairs, you only have to

17 look at 8 or 10 or 15. t;

The i terns that have numbers here, these items' are

19 mostly hairs except for two instances; is that correct~ 20

The ones that are here, yes.

The ones that were mitro.chondrially tested?

Correct.

And the two known samples were samples of what?

One was definitely blood and the other one was the

25 mitochondrial

DNA .

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. II 11-17-05

561

And which numbers - ~

One's a Dalchem kit.

Looking at the table at the bottom of Page 9, which

4 item is -- which of the two items are the known samples? 5

027 is a known sample from your client and 019 is a

sample from the victim in this case, being the

6 known

7 f e ma 1 e vi c t i m . 8

And is your understanding that those two known

9 samples were then compared against these various other

10 hairs on this table to see where one or the other of

11 those two people are contributors or might have been

12 contributors of those hairs? 13

And the hairs would be compared against each other

14 as well. You compare all of the samples that were

15 actually tested. 16

Okay. Did GeneScreen find that most of these hairs

17 that were tested were consistent with having the

18 conclusion that they were contributed by Twila Busby or

19 her sons? 20

Yes, they did.

And did they conclude that any of these hairs were

22 consistent with the result of having been contributed by

23 Henry Skinner? 24

Not in the final report s .

I saw an earlier version

25 that they said. BETTY TATE, 3101 TOWNBLUFF DR.

#923, PLANO, TX. 972-596-9442

562

EVIDENTIARY HEARING, VOL. II 11-17-05 1

as you

Okay. But this was the final reporting,

2 understand it? 3

Yes.

And I'm asking you about the final report. Do they

find that - - do they conclude that Skinner

Mr.

6 Skinner was a potential contributor of any of these

7 hairs? 8

They did not conclude that.

Now, did you ~ - let's go back to Exhibi t 28. You

10 were testifying earlier about the data produced from the

11 mitochondrial testing and you had it in two categories, 12 electronic and - - you didn't use the word hard copy but

13 I understood you read a hard copy data that was produced as a result of mitochondrial testing.

Is that the data

15 that is in Exhibit 28 that comes after Page 165, or 166?

That i S one kind of hard copy data that usually is 17 associated with a mitochondrial case, but it's missing

1f all of the electropherograms. There1 s no

19 electropherograms presented in this case. 20

So this is just a - - these are just partial

Hard copies.

__ partial hard copies, and did you find missing

23 from these hard copies, actually even hard copies that 24 were associated with some of the hairs that were 25 reported tested on Plaintiff' sExhibit 25? BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

563

EVIDENTIARY HEARING, VOL. II 11-17-05 1

Yes.

All right. Well, were you able to draw any

3 conclusions -- well, before I ask you that .question,

4 let's go back to 25. There were two hairs that appear 5 on 25, Page 9, the bot tom table, where GeneScreen

6 reported inconclusive results all the way across at all

7 of the various points that are listed in the tables, and 8

other hair was 011D-2.

one was hair oio and the

Do you

9 see what I'm referring to? Bottom of Page 9, the table

Page 9 --

10 at the bottom of

Now I see it.

Do you see two hairs there where GeneScreen

13 reported that at all points in the table the results 14 were inconclusive? 15

Yes, hair No. 10 and 11D-2.

And do you see the same with respect to the same

17 two hairs in the table at the top of Page 10?

18 A Correct, the HVII position. to 010 were you able - - did you

19 Q Now with respect

20 have any information at all from the GeneScreen 21 discovery production, Exhibit 28, or the electronic data 22 that allowed you to determine whether or not GeneScreen

23 appropriately concluded that the results on 010 were

24 inconclusive? 25

There's no hardcopy data and there are no

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

564

EVIDENTIARY HEARING, VOL. I I 11- 17- 05

1 electronic data associated with that particular item, so 2 I can' t say anything about it. 3

Now, with respect to 011D-2, did you find any hard

4 copies or electronic data that related to that 5 particular hair? 6

Yes, I did.

And did you find any electronic data?

It's a possibility that some of the electronic data I cannot

9 I have could be associated with that test1 but

10 tell. 11

But did you find hard copy data?

There's hard copy data but it's not all of the hard

13 copy data that should be associated wi th the testing. 14

Does the hard copy data that relates to 011D~2, is

1 5 t ha t found at Page s 1 9 4, 1 95, 1 9 6 and 19 7 and 1 9 8 ?

Yes.

And did you analyze those pages to try to reach a

1l conclusion as to whether or not you agreed or disagreed 19 with GeneScreen's conclusions with regard to hair 11D-'2

20 (inaudible) ? 21

that

I analyzed all of this hard copy data to do exactly (inaudible) to see whether they were consistent

23 with the conclusions that were represented in this

24 report. 25

And what did you conclude with respect to - - well,

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

565

EVIDENTIARY HEARING, VOL. II 11-17-05 1

before I ask you that question, there are other hairs

where GeneScreen reports results, for example, 11D- 1,

14D, 19 ~ - excuse me - - 19 is the known sample of Twila

Busby's, so that's not hair, 23, 24-1, 24-2.

understand that GeneScreen did produce results with

respect to those hairs?

A I have hard copy data that suggests there are

results for those hairs.

Q Was there a conclusion in their report that those

Did you

hairs were - - that Twila Busby could not be excluded as

a contributor of those hairs?

A That's correct.

Q And did they conclude that Henry Skinner could be

excluded as a contributor of those hairs?

A That's correct. That 1 s what they cone luded.

Q Now did you examine the hard copy data to try to

determine and form your own opinion from that data as

best you could whether those results with respect to

those hairs we've just been talking about were correct?

A Assuming that the hard copy data are correct,

reliable representations of the underlying electronic

data, I would have reached the same conclusion as the

laboratory did.

not a real serious one, is that one of those hairs

that's really only one base pair represented as hard

The only potential exception, and it's

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. II 11-17-05

566

1 copy data, that matched the vict im in this case, but

2 there was no evidence to suggest that it was anybody

3 else's. 4

Okay. Now, you've indicated that you didn't have

5 any data to reach a conclusion with respect to 010. Now

6 let i s focus on 0 11D- 2, that part icular hair. Did you 7 analyze the hard copy data to try to reach a conclusion 8 as to whether or not GeneScreen' s reported result wi th

9 respect to that hair, which was inconclusive at all of

10 the points of reference? Did you reach a conclusion as 11 to whether or not the underlying data supported that

12 result? 13

In my opinion it did not.

And why did you reach the conclusion that that data

15 did not support that result? 16

All I

did was look

at the explicit positions where

17 it seemed declared inclusive and looked to see if there L

1~ was an inconclusive result in the hard copy data, and in 19 most of those pos it ions it was not inconc 1 us i ve. 20

Dr. Shields, have you prepared an exhibit that has

21 helped explain to the court when you reached your

22 conclusion? 23

Yes.

If you' 11 look in your book there to Exhibit 76

25 (inaudible) . BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. II 11-17-05

MS. ODEN: Could you say the page number

again? MR. ROB INSON: Exhibi t 76. Your Honor, do you

have Exhibit 76? It is one of the supplemental

exhibits. THE COURT:

(By Mr. Robinson)

(Inaudible) .

I s this the exhibit that you

prepared, Dr. Shields, to help explain your conclusion

with respect to hair No. 11D-2?

A Yes, it is.

Q Well, I'm going to turn it over to you, Dr.

Shields, to explain to the Judge why it is that you

disagree with GeneScreen's conclusions with regard to

11D- 2.

A We need to start at a different place. We need to

go to either 194 or one of the other ones; it doesn't

matter which one.

Q You' Tereferring to Exhibit 28?

19 20

A Exhibit 28, Page 194. Because to understand what I did on this representation of the three - - just threĂŠ

samples1 you need to understand what these hard copies

are saying. So as you look at - - you can just start on

that first set. Notice that there are lines and there's

1, 2, 3, 4, 5, 6 different sets. Those are the

sequence.

t,\I:

567

Each of the sets is a part of the sequence

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

568

EVIDENTIARY HEARING, VOL. II 11-17-05

1 and it runs from left to right, and it keeps on going

2 left to right as you go down the page.

3 And you can see that there are hand drawn numbers above certain of the base pairs.

That's the

5 actual numbers that the mi tochondrial DNA standards 6

would say that these were.

they are.

That's the positions that

The numbers that are done by the computer,

8 the 10, the 20, the 30, the 40 are just 10., 20,30 and 9 40 for sequence during this reaction, so they're not the 10

actual numbers.

The actual numbers are the handwri t ten

11 ones, and you can count from any of the handwri tten ones 12 to figure out which one is next, as long as there's no

13 additions or deletions. The first one, the071-A-F2689-011D-2 is the

15 identifier that I was looking for in the electronic data

16 in order to be able to do this electronically, so A-F is 17 the A primer, based on what I can see from these papers "

1 k and what I did see in the electronic data I do have,

19 which I still can't associate with a particular sample,

20 forward reaction, and then the 2689 is the case number 21 assoc iated wi th thi s case, and the 11D - 2 is a number

22 that's associated with this particular hair. 23

So it gives you what reaction it is, and

24 notice that there is 1, 2, 3, 4 reactions, and below 25

those is something that says HVI 16024-16365~

That's

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

569

EVIDENTIARY HEARING, VOL. II 11-17-05 1

the base pairs within the mitochondrial DNA that are

being sequenced by these reactions, and they're being

sequenced independently by different prime~ sets.

That's what that AFAR -- that's the A primer set with

the forward and reverse, and the B primer set wi th the

forward and reverse.

So the

primers that this laboratory are using

are a little different than the primers that I've seen

in the other forensic laboratories.

It looks like

they're using primers that cover a bigger space.

one thing.

Tha t ' s

But that means that there should be four data

12 13

files for this particular individual analysis on that

seating.

Now, if we go over we'll see that we don't get

results from the two D reactions early in this

sequencing.

There are blanks next to it, and they start

(( 18

showing up over here at 120 - - the 120 that's mรกrked by

the computer. We start seeing a CT next to one another,

and all of a sudden you see all of them again, those

that they've overlapped. Now you see four results. So

those are separate sequencing reactions that are

producing a best guess at what the sequence is at a

particular point in time.

and you'll see the first two peter out, if you will.

And then it keeps on going

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

570

EVIDENTIARY HEARING, VOL. II 11-17-05

1 They end earlier than the end, and the bot tom two, the D

2 reactions, keep on going for a while longer.

3 Everyone of the samples should have the same "

sort of thing. All right.

So now we're looking at

5 forward and reverse reactions, with two different primer 6

sets. Where there are only two oÂŁ them we' 1 1 only get

two results.

If you'll look at the first one you'll see

8 that there's a T and aT, and it goes down to a T that 9

doesn't have a label.

That's called the consensus base

pair. That's what the computer wrote and interpreted 11 the results as being based on the two T's that it saw in

12 the two sequences that it looked at. And you can see 13 that it goes along and there is consensus all the way

14 across here for all those parts of this particular 15 sequence.

16 YoU get to a place where there's four of them 17

and you see four results that are consistent.

1tf

example, at 180 you wi 1 1 only see A' s .

For

There's an. A in

19 the consensus sequence and then there's an A in the 20

Anderson sequence that everything is compared to, so

21 there's no di f ference between this sample and Anderson 22

at that site.

the way they do the report.

That site will not show up on the report The only sites that will

24 show up is where this sample or one of the other samples 25 that1 s in the report differs from the Anderson sequence,

BETTY TATE, 3101 TOWNBLUFF DR.

#923, PLANO, TX. 972-596-9442

571

EVIDENTIARY HEARING, VOL. II 11-17-05

the base pairs that are in the report are

1 so that's why

2 just a selective number of these. Okay?

3 Finally, you will occasionally have results the process is not

4 that are confounding, if you will ;

5 perfect. The sequencing is never perfect, so you will 6 see things like between 150 and 160, Your Honor, you 7

might see T 174,5, 6, 7, 177 the actual number for this

mitochondrial DNA.

Actually though it's 16177.

You'll

9 see an A and then an N. The N is the computer speak for 10

ambiguous.

capital N means.

I cannot call a single base.

That's what a

see an N that means

So anywhere you

12 it's ambiguous.

13 But in this case we see that there is one A, 14 two A's, three A's, so we have three samples of a big A 15 and one N, and the computer says I'm going to trust that 16 the 3 A's that I see is the answer and I'm going to call 17 itA's, the consensus t and ignore the N, and that's what

18 the computer did.

19 You'll also see occasionally in these papers 20 places where there are lower case n' s in the consensus 21 line, which is the one that doesn' t have a label on the 22

left.

Lower case n' s, according to the computer speak

23 associated with these programs that use this machinery, 24 is where an operator has changed the call of the 2 5 computers. So the computer

had a cal 1

there and the

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. II 11-17-05

572

1 operator changed it to an n, turned it ambiguous. Don' t 2 know what the computer said at this stage because don' t

3 have the electronic data to run it and let the computer

4 tell me what it called. Okay? That's how you read these papers and that can

6 be translated into the three, interesting to me, 7 sequences that are reported, two knowns, one unknown,

8 where I think calling everything inclusive was at best

9 misleading. THE COURT:

I have two questions, Mr. Shields.

11 (Inaudible). At one point you referenced column 180?

12 Is that computer 180? THE WITNESS:

It was a computer 160, yes.

14 was a computer 180 as well. 177 is not the computer's 177?

THE COURT:

THE WITNESS: No.

and it

I said between 150 and 160

the actual mitochondrial 177.

(Inaudible) .

1 tll

THE COURT:

THE WITNESS:

THE COURT: You've got the A, your identifier

It's the A and A, yes, sir.

21 is (inaudible). Correct, Your Honor ~

THE WITNESS:

THE COURT: And you're saying that the

24 printout (inaudible)? 25

THE WITNESS: Right. BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

573

EVIDENTIARY HEARING, VOL. II 11-17-05 THE COURT:

So what I'm understanding

2 (inaudible) 1, 2, 3, 4, 7, 8, (inaudible). What are the 3 7 and 8 lines? THE WITNESS: There is no reading at 8 because

5 it's just a line that's not being used in this analysis.

6 THE COURT: (Inaudible) reading 7 7 THE WITNESS: 7 are what's called a consensus 8 view of the computer. The computer looks at the 4 when 9 there's actual data and says I believe, based on what I 10

see here, that the true resul t is a T or an N.

If it's

11 lower case, however, that's an operating overriÃ²e.

12 THE COURT: (Inaudible). THE WITNESS:

I' 11 show you one.

It's right

14 here at 15

THE COURT: 225.

THE WITNESS: You got it, Your Honor.

THE COURT: (Inaudible). What does operator

18 overriding mean? 19

THE WITNESS:

It means that there t saC and

20 second C and one N but for what reason, I don' t know 21 (inaudible) . It's overridden to an n. 22

THE COURT: (Inaudible).

THE WITNESS: Which it was above that. The'

24 computer says it's ambiguous. 25

THE COURT:

(Inaudible) .

So where' s

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. II 11-17-05

574

1 (inaudible) ? 2

THE WITNESS: Pardon?

THE COURT: ( Inaudible)

THE WITNESS: No, there's not two of each,

5 Your Honor. There's two C's and one N, so the C's -6

THE COURT; The lower case n.

THE WITNESS: The lower case n was not an N.

8 The computer called it something other than an N. THE COURT: Are there ever readings where

10 there's two A' s and two other (inaudible)? 11

THE WITNESS: Yes.

THE COURT: And when you get that, what does

13 it mean? THE WITNESS:

It depends on their shape and it

15 depends on why the N'S are N' s, and that's part of what's difficult about this.

If it happens at the

17 beginning or the end on one of these primers, N's are l,

1g easily ignored by the computer and the operator. THE COURT: Ask your next question.

(By Mr. Robinson)

Well, let's go back to 225,

21 which the Judge was just asking about, Page 194, where 22 you have a C, capital C, capital N, capital C. Are

23 those the results of the actual sequence that was run; 24 that is that three

of the four sequence run produced a

25 (inaudible) resul t; is that correct? Am I saying that BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

575

EVIDENTIARY HEARING, VOL. II 11-17-05

right? (Inaudible) ? That's correct.. A

resul ts here, 1AR.

One of the primer sets produced no

The other three primer sets produced

4 resul ts, two of which were C' s, one of which was

5 ambiguous N. 6

And then the bottom line with the small N is the

7 consensus result? 8

Correct.

But that t s not a sequence, it's just the

10 consensus -11

(Inaudible) And the small n means that something else was

13 generated by the computer as the consensus and the 14

operator changed that to an n.

Is that what small n

15 means? 16

Small n means the operator put in a

small n.

17 don't know what the computer did for sure but if it was 18 a big N the operator probably wouldn't have changed it. 19

Well, in this particular case then where you had

20 two C' s and an N in sequences and the operator has 21 changed whatever the resul t was to an N, what is your

22 belief as to what that -23

I think if I had the electronic data I'd probably

24 call it a C but I can't be absolutely certain until I

25 see the electronic data. BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. II 11-17-05 1

576

In any event, what's your opinion as to whether the

2 computer probably called this consensus before this was

3 changed to an n? 4

(Inaudible) All right. So now - - I don' t want to reconstruct

6 your Exhibi t 76 i tern by item and 1 ine by 1 ine, but are 7 we ready now to turn to 76?

8 A Yes, sir. 9 Q Let's turn to 76 then -~ THE COURT:

I think we probably ought to go

11 ahead and break for the evening. How much longer do you

12 have with him?

13 MR. ROBINSON: Well, I suspect I probably was 14 a little too optimistic. I'm hopeful another half hour

15 or so. (Inaudible) .

THE COURT: All right.

MR. ROBINSON: Yeah, I said a half hour to 45

1~ minutes and -19

THE COURT:

Nashville to Dallas?

MS. ODEN:

THE COURT:

Your witness has to go to

He has to fly to Nashville, Judge.

And you don' t know when - - you

23 haven't booked that yet? 24

MR. WATSON: It was booked at 6: 49 tonight.

MS. ODEN: We haven't re-booked his flight. BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. II 11-17-05

577

1 We're hoping to get him out tomorrow around lunch time.

2 He's supposed to meet his family and do a long drive to 3 Texas wi th the kids to be home for Thanksgiving.

4 THE COURT: We'll start at 8: 30 in the 5 morning. 6

MR. ROB INSON: Sounds fine to me.

MS. ODEN: Thank you, Your Honor.

8 9

(Hearing Recessed)

11 12 13

15 16 17 18 19 20

21 22 23

24 25

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442

II 11-17-05

EVIDENTIARY HEARINGI VOL.

2 **** 3

4 TRANSCRIBER'S NOTE: 5

6 Judge Averitte and his staff were unaware that the 7 electronic equipment in the courtroom was malfunctioning 8 and only the Respondent's microphone was operational.

9 Therefore, I was unable to transcribe much of the

10 proceedings. 11 12

Betty Tate

Court Transcriber

15 16

17 I, Betty Tate, certify that the foregoing is a correct

Vol . I I from the electronic sound

1i transcript of

19 recording of the proceedings in the above-entitled 20

....

mat ter.

21 22 23

January 3, 2006

~~/~ (j

BETTY TATE, 3101 TOWNBLUFF DR. #923, PLANO, TX. 972-596-9442