November 18, 2005 - POST CONVICTION APPEALS by Justice4Hank

POST CONVICTION APPEALS

FEDERAL DISTRICT COURT EVIDENTIARY HEARING TRANSCRIPT VOLUME 3 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 professìonals

testing. . . the professionalìsm

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

prìmer 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 trìangles

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. 111 11-18-05 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS AMARILLO DIVISION

* NO.2: 99 - CV - 4 5

HENRY W. SKINNER

Petitioner,

* * * *

vs. ,

(ê(Q~W

DIRECTOR TDCJ-ID GARY *

JOHNSON, et al ** Amarillo, Texas Respondents.

* November 18, 2005

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

MAGISTRATE

(VOL. I I I) APPEARANCES:

For Peti tioner:

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, Texas 78704 For Respondents:

MS. KATHERINE D. HAYES Office of the Texas At torney

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

579

EVIDENTIARY HEARING, VOL. 111 11-18-05

MS. MARGARET SCHMUCKER

Of f ice of the Texas At torney General postconviction Litigation Div.

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

580

EVIDENTIARY HEARING, VOL. 111 12 -18 -05

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

4 5

DEBBIE ELLIS Vol. Direct by Mr. Owen......... ~ . . . . . . . ..- I CrosS by Ms. Schmucker............... I Re-Direct by Mr. Owen................ I Re-Cross by Ms. Schmucker............ I Re-Direct by Mr. Owen................ I

Page 21 34 47 50 52

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

I I I

54 65 70

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

I I I

73 77 78

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

I I

79 91

HAROLD COMER Direct by Mr. Robinson............... Cross by Ms. Hayes...................

178

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

209

ANDREA REED Direct by Mr. Owen................... I Cross by Ms. Hayes.................... II Re-Direct by Mr. Owen.............~.. II

225 257 290

DR. WILLIAM LOWRY Direct by Mr. Robinson................ I I

Re-Direct by Mr. Robinson............ II Re-Cross by Ms. Oden................. II Re-Direct by Mr. Robinson (Rebuttal). III

291 315 372 379 817

WILLIAM THOMPSON Direct by Mr. Robinson............... II Cross by Ms. Oden.................... I I

385 407

7 8 9

11 12 13

14 15

KENNETH W. FIELDS

18 19 20

Cro s s by Ms. Oden..................... I I

21 22 23

24 25

BETTY TATE, 3101 TOWNBLUFF DR.1 #923, PLANO, TX. 972-596-9442

581

EVIDENTIARY HEARING, VOL. 111 11-18-05 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................ II

444 459 486 487 488

DR. WILLIAM SHIELDS Direct by Mr. Robinson............... Cross by Ms. Oden....................

538 600 630 634 707 713 715

DR. MICHAEL CHAMALES Direct by Ms. Oden.................... I I Cross by Mr. Robinson................ II Re-Direct by Ms. Oden................ II

495 509 532

DR. WILLIAM WATSON Direct by Ms. Oden................... III

4 5 6

7 8

III Robinson . ., . . . . . . . . . III Re - Cros s by Ms. Oden................. III Re-Direct by Mr. Robinson (Rebuttal). III Voir Dire by Ms. Oden................ III Re-Direct by Mr. Robinson (Cont'd.).. III Re-Direct by Mr .

WITNESSES CALLED BY RESPONDENT 10

11 12 13

Cros s by Mr. Robinson.......... ~ . . . .. I I I

Re-Direct by Ms. Oden................ III Re-Direct by Ms. Oden (Rebuttal)..... III

638 680 705 716

JOHN MANN Direct by Ms. Hayes.................. III Cross by .Mr. Owen.................... III Re-Direct by Ms. Hayes............... III

721 740 745

GERRY DOUGLAS

749 '

17 t'

J ~

1'~

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

754

20 HAROLD COMER

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

756 768

CONNIE LOCKRIDGE Direct by Ms. Oden................... III

Re-Direct by Ms. Oden.....~.....~.... III

769' 784 787 789

22 Cros s by Mr. Owen.................... I I I Re - Cross by Mr. Owen................. I I I

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

EVIDENTIARY HEARING, VOL. 111 11-18 - 0 5

582

TERRY YOUNG Direct by Ms. Oden................... I II CrosS by Mr. Robinson................ III

790 798

CONNIE NEIGHBORS

Direct by Ms. Oden.................... -'I I I

799

KATIE GERHARDT Direct by Ms. Hayes.................. III Cro s s by Mr. Owen.................... I I I

813 820

TRACEY JENNINGS Direct by Ms. Hayes................... III Cross by Mr. Owen.................... III Ms. Hayes............... III

822 828 829

4 5 6

7 8

Re-direct by

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

583

EVIDENTIARY HEARING, VOL. 111 11-18-05

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

PETITIONER'S EXHIBITS

1 Affidavit of Andrea Reed dated 9-27-97

224

7 Let ter to Comer from Skinner dated 6 - 2 5 - 94 8 Letter to Comer from

133

141

223

9 Court Order for Release

223

223 223

6 Letter to Skinner from Comer dated 6-24-94

Skinner

of Records

10 Medical Records of Coronado Hospi tal

25 GeneScreen report dated

III

110 223 223 304 310 223 635

26 McMinn letter to GeneScreen

II I

635

638

III III III III

636

676 636 636 385 388

679 637 637 405

405

Sus

II II II

405

Sus.

405

305

311

I I

89 89

11 Inmate Jail Records 10

11 12 13

14 15 16

17 l,

itf 19

20 21 22

299 311

311

to police

II II

Marked Admitted 297 d

2 Statement of Andrea Reed 4

Vol.

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 2-6-01

7-20-00

28 Orchid Cellmark Disc. Response

29 Affidavit of Dr. Shields 30 CV of Dr. Shields 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 Letter 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 II

311 312

Sus. 305 311

Sus. 638

Sus.

312 312

Hearing

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

584

EVIDENTIARY HEARING, VOL. 111 11-18-05 1

73 75

76 3

77 78 79

5 6

80 81

Aff idavit of Harold Comer

Dr. Shields Max Courtney's Report Aff idavit of M. Kent Sims Morse Burrough's Report dated 1-1-94 Sketch by Dr. Thompson Excerpt from Robert

Springsteen Trial

1 Andrea Reed Recanting

Statement to police by

Jessica Reed's statement dated 1-1-94

Af f idavi t of John Mann

13 15

CV of Max Courtney Mitchell's police Report dated 1-3-94 Notes of Connie Brainard, Brainard Police Report dated 1-6-94 Affidavit of Wm. Watson CV of Dr. Wm. Watson Dr. Peacock's Protocol Let ter to Gene Screen dated 7-20-00 Letter to J. Mann 11-21-00 Statement of Facts Statement of Guilt Bad Acts List Video of Skinner Statement Transcript of Videotaped

Affidavit

15 16 17 18

25 26 27 28 30 32 33 34 35

35-A

38 40

41 42

627

223 313 377

223 313 441

III

441 703

441

Vol.

Marked Admi t ted 258

III Supplemental Inv. Report III Supplemental Report by

RESPONDENT'S EXHIBITS

16 17

Sus.

Morse Burrough's

223 639

Andrea Reed 1-1-94

II II II

II II

258

III

811 8 1 1

756 Sus.

III III III III III III III III III III III II I III

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

639

III

778 779 776 777 782 784 679 679 641 641 723 724 585

727 727 737 738 738 739 735 745 795 796 795 796 305 311 497 498 656 656 809 810

24 25

BETTY TATE, 310i TOWNBLUFF DR., #923, PLANOI TX. 972-596-9442

EVIDENTIARY HEARING, VOL. 111 11-18-05

585

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

1 2

THE COURT: Good morning.

MS. ODEN: Good morning.

MR. ROBINSON: Good morning.

THE COURT: Please continue.

DIRECT EXAMINATION (Cont' d. )

8 9

10 BY MR. ROBINSON: 11

Good morning, Dr. Shields.

Good morning.

Dr. Shields, I think we left off last night with me

14 about to ask you to construct for the Judge how you put 15

together Exhibit

Plaintiff' s Exhibit 76.

Okay. No. 7E is just a transcription of what

17 appears available in the sequence files that are printed (,

ii that I received in discovery for this case. Threeof 19 the -- (inaudible) I1D-2 hair, 027 known sample for Mr. .,~

Skinner, and 019 known sample for Twila Busby. Okay?

21 So what these are is the sites (inaudible) with a couple

22 of exceptions in the report (inaudible). THE COURT: We are talking about Exhibi t 28?

23 24

(Inaudible) 28.

(Inaudible). Those - - anything that has

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

EVIDENTIARY HEARING, VOL. 111 11-18-05

586

1 ( in a u d i b Ie) 0 nth e Ie f t ( i na u d i b Ie) HV I, HV I I, tho sea r e

2 the things that are reported in that report (inaudible) 3 for those three samples and below.

4 Q Dr. Shields, if you'll keep in mind that we're 5 trying to create a written record here so that if you 6 could rather than saying below, if you could explain to

7 the Judge exactly the lines you are trying to refer to

8 just so we can have a record of that.

9 A Well, again, there's two rows that are associated 10 wi th HVI, and two rows that are associated with HVI I -11

THE COURT: The report or the file?

THE WITNESS: The report (inaudible) and the

13 report and sequence file. The first row is the report, 14 the third row is the report. The second row is the

15 sequence file and the fourth row. So when I say below

16 again -17

(By Mr.. Robinson)

I'm sorry again, Dr. Shields,

.18 but just for purposes of our record, were the report

19 lines for HVI and HVII -THE COURT: Counsel, I think it's clear in the

21 record and you're looking at the report. There's not 22 any doubt what he's talking about. MR. ROBINSON:

If you understand it, Your

24 Honor, that's all I care about. 25

But a sequence file is this transcription. So

BETTY TATE, 3iOl TOWNBLUFF DR., #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. 111 11-18-05

587

1 anybody who has copies of those sequence files can

table and exhibit themselves. All I'm

2 produce this

3 doing is attempting to report accurately what was 4 presented in both of those inconsistent reports and the

5 sequence files.

6 The circumstances are that there will be very 7 little way of differences for the two known samples

8 between the report and the sequence file. The only 9 differences is there are actual sites and they are 10 listed below in the HVII, 152 and 198, that were not

11 mentioned in the report, both of those two base pair 12 sites, so that's one difference between the two.

13 So then all I can do is report on the actual 14 base pairs that are found, or the base pairs that are 15 called by the computer and then called as a consensus

16 or the operator's consensus. THE COURT: Okay, 152 and 198 reports you

17 .ft:

1~ received in discovery showed no data, nothing? 19

THE WITNESS: Nothing.

THE COURT:

THE WITNESS: Yes.

Okay.

(Inaudible) sequence file?

So again, you see almost everything is going to be

consistent with

well, first off, anything listed as

24 inconclusive on IID-3, many of them are not inconclusive. (Inaudible). You can see that in the 25 BETTY TATE, 3101 TOWNBLUFF DR., #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. 111 11-18-05

588

1 first HVI, 16069, they're both C one and two, 27 and

2 this T (inaudible) 16126, there's an NCN and then a 3 handwrit ten notation that there's a T slash C which is

4 what's called heteroplasmy. The suggestion there is,

5 that both T andC are present but I don't have the

6 electronic data, right time table to look at the 7 (inaudible) in question. If the electropherogram 8 produces two peaks that are very close in heighf i one 9 wi th aT, one wi th a C, that would be an indication that

10 the person in question carries thirty percent T and 11 thirty percent C at that site. That would be considered

12 to be a heteroplastic subject. Therels nothing to tell 13 me one way or the other whether that's true or not 14 because I don' t have the electronic data. Although I i II 15 as sume it's the case that there's a heterop lasmy.. And two known subjects.

16 then there's a C at the

(By Mr. Robinson)

Dr. Shields, would you stop here

18 for a moment and go to Page 194 in Plaintiff's Exhibi t

19 28. Page 194.

20 A Okay. 21 Q Is this the underlying hard copy data for IID-2 and 2 2 HV I ?

Yes, it is.

And can you show the Judge where on that page you

25 found the NCN, parenthesis, TIC? BETTY TATE, 3101 TOWNBLUFF DR., #923, PLANO, TX. 972-596-9442

589

EVIDENTIARY HEARINGI VOL. 111 11-18-05 A

It's at the 16126 which is between the 100 and 110

2 computer generated and there's an actual 126 above it.

3 And it's circled -- there's an "Nß which means it was an

4 inclusive and ambiguous result for one of those

5 (inaudible) and then a C, okay, for a second 6 (inaudible) and that "T/cn was handwritten in, I

7 presume, by the author. 8

Okay, let's go back to 176 then and continue wi th

9 your explanations. 10

Again, in the I1D-2 we have N, N, 16294 and a

11 little n for the IID-2 at 16294, the column that's

headed 16294.

16294 there's an N capital T, small n, so

13 again it's ambiguous. At the 16304 is aT, a large N 14

and a small n, so there's ambiguity there.

In each of

15 those two cases, this puts a lower case n at the end. 16

That last one is the consensus.

The first two

1 7 (inaudible) known - - yes, sir? ,

THE COURT: What (inaudible)? 126

19 (inaudible) ? .....

THE WITNESS: You've got to go to the next

21 page, Your Honor. And it's between the 270 and the 280.

22 You'll see the 294 there -23

THE COURT: The last three numbers are

THE WITNESS: Are on the second page.

THE COURT: No, I mean the last three numbers i TX. 972-596-9442 BETTY TATE, 3101 TOWNBLUFF DR., #923, PLANO

590

EVIDENTIARY HEARING, VOL. 111 11-18-05

1 fall -- what's the 16? What graph are you talking about

2 there? 3

THE WITNESS:

It's because they were all run "

4 two or three times. And then the 16304 is the first 5 line - - the first column on the next line, and you can And see that there's a T for one of them (inaudible) 6

7 there's a big N (inaudible) and then a little N 8 (inaudible), and that's different from the N 9 (inaudible), and so those are some of the differences.

10 I've marked the ones at 16304 because the only evidence

11 that is there was that it was aT. The computer calls

12 it a T once.

13 If it's a T, it is not consistent with your 14 client, but it would be consistent, for example, with

15 Twila Busby but lots of other people as well. But it 16 would not be consistent with coming from your client.

17 So there's one spot where there's at least evidence, 18 although not conclusive evidence in my opinion, that he 19 could be excluded of having contributed this hair.

20 I f you look at HVI I, again you can go across 21 all the way looking at the 27 and a 191 and I1D-2 in the

22 sequence file, which is the actual data rather than the 23 report, and the first thing I noticed when I looked at

24 this stuff was that 152 was not even mentioned in the

25 report, and thatl s an absolute exclusion. There is no BETTY TATE, 3101 TOWNBLUFF DR., #923, PLANO, TX. 972~596-9442

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EVIDENTIARY HEARING, VOL. 111 11-18-05

1 ambiguity about what was called there. There are no N' s

associated with it.

I think we'll find those on 196,

3 Your Honor. 4

(By Mr. Robinson)

Dr. Shields, would you go to

5 196. We do not have any handwritten numbers above the 6 sequence resul ts, so does that mean that they've used 7 the comput.er generated numbers to 10, 20, 30, or how do

8 we A

NO, actually there are handwritten numbers here but

10 they're in pencil, so I assume somebody from your office

11 did that. But not the handwritten numbers from the laboratory. But you can use it ei ther way.

152 is

13 the 14

What I need you to do is to tell us where 152 is

15 and how you conclude that that's 152. 16

We'd just have to count.

I'll show you -- I'll

1 7 give you onê and then you can count back. What I should I;/'

tof 1~ do - - and I'll tell you why the

electronic data is'

19 important. Turns out that you can have this printout 20 produce the actual numbers. All you have to do is reset 21 the

numbers . Your computer will have to be set to

22 produce the actual numbers of - - as they're classified 23 from mitochondrial DNA. A lot of labs a lot of times' 24 will put in the handwritten numbers instead, but once

25 you get a number all you have to do is count in any BETTY TATE, 3101 TOWNBLUFF DR., #923, PLANO, TX. 972-596-9442

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EVIDENTIARY HEARING, VOL. 111 11-18-05

1 direction in whatever way you want to find out what it

2 is, but the one that's listed here as computer 80 is

3 152. 4 And you can see that there's three C' s 5 there -- so they're both C's, there's no ambiguity, 6

there's a C, and the Anderson there is aT.

If you then

7 were to go to the same one that's associated with No. 8

27, you will see that it's TT -- T.

There's no

9 ambiguity whatsoever. And that would have been

10 considered when this was first (inaudible) in the ' 95-96 11

as an absolute exclusion.

It is now considered by

12 itself evidence that you can' t include or exclude, but

13 that's not the only evidence.

14 Shall I continue? The next one is the 15

27 and the 110-2, at 185.

consistency between the

16 consistency at 189, again a potential inconsistency at 17 198, which is not mentioned at all. There we have the 18

ambiguity and ambiguity and aT. We have three~

them, an ambiguity, one of them aT.

Two 0 f

The only direct

20 evidence is a T, and then a small n, which, which listed 21 as ambiguous, and therefore could not be used to exclude 22 or include. But there is some evidence there to suggest

23 an exclusion. 24

The 200, 228, 263, 295 are all consistent

25 between those two samples, the IID-2 and 27 (inaudible) BETTY TATE, 3101 TOWNBLUFF DR., #923, PLANO, TX. 972-596-9442

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EVIDENTIARY HEARING, VOL. 111 11-18-05

1 The 309.1 and 315.1 -- it's a different kind of place.

2 It produces what's called late heteroplasmy regularly

3 and (inaudible) and because there were no good results 4 from the known sample, it's not suitable for comparison, 5 but if you look at the actual resul ts, as represented

6 through those hard copy results, there is some puzzling 7 phenomena there

as well. That puzzling phenomena is

that in fact the I1D-2 shows no 309.1.

It shows an

but 9 absence of 309.1-C. That appears to be present

sure 10 again you can' t say for

because it was ending there

11 in the 27. That's another poss ibi i ity but I didn' t mark 12

it because it is less - ~ it's more ambiguous

13 (inaudible) .

14 So the bot tom line is that in the comparison 15 between IID-2 and 27, there is one absolute difference 16 and another two differences on the face, which makes me

17 believe that it's more likely that this is an excluaion ,lr

1% than not, that this particular hair didn' t come from Mr.

19 Skinner. I can say with even stronger conclusion that 20

all you need to do is look at the 019 known sample and

21 compare it to the I1D-2 where there are no ambiguities,

22 never mind the ambiguous placesi but where there are no 23 ambiguities, and Twila Busby is absolutely excluded from 24 having produced the DNA that was found in the hair 25 the mitochondrial DNA, and presumptively the other two BETTY TATE, 3101 TOWNBLUFF DR., #923, PLANO, TX. 972~596-9442

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594

1 victims who were her sons, would also be excluded

2 because they should have the same blood type or

3 mitochondrial DNA. The reason why is again, all you have to do is

5 you can start with 16069 and if you go down to the 6 sequence files you see that she's a T and in fact IID-2

7 is a C. Then we go to 162351 she's a Gand the hair's go to 185, she's an A, the hair is a GC,

8 an A. You can

9 there's no A up there at all, and an N but that's an 10

ambiguous N, you don' t need those.

189, she's a G, and

11 the hair's an N. 200 she's a G, and the hair is an A.

12 At 28 she's an A, the hair's a G. There is consistency 13 at 263 - - almost every human on earth has G there. But 14 I think if you go back to the 73 they'll be the same,

15 they're all G's because almost every human has those as

16 G's. 17 And finally she does have a very consistent 18 309.1 C and a 350.1 C. 19

That 309.1 C, would that be .a clear difference

from

20 IID-2? 21

From IID-2, but not necessarily from your client

22 because his was ambiguous. 23

All right. So in your opinion should GeneScreen'

24 have reported at a minimum that there was a - - that 25 Twila Busby and her two sons were excluded as BETTY TATE, 3101 TOWNBLUFF DR., #923, PLANO, TX. 972-596-9442

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EVIDENTIARY HEARING, VOL. 111 11-18-05

1 contributors of hair IID-2? 2

Absolutely.

And in your opinion should GeneScreen have reported -,

4 at a minimum that there was evidence that Mr. Skinner 5 was excluded as a contributor of IID-2, although not the 6 same degree of clari ty as Twila Busby? A

What I would say they should have done in that

actually report the actual results.

8 particular case is

9 Then in their conclusions, they can make what

10 conclusions they draw. My conclusion would be that the 11 evidence is more consistent with an exclusion than an

12 inclusion, but I also state that based on today's 13 standards it would be rational, although I think wrong, 14 based on what I saw, to say that you couldn't make the 15 decision to exclude or include, but I think anybody a reference to what's more likely than not.

16 could make

In other words, i would not exclude him from

1~' attributing that hair myself, not in that sort of sense, 19 but I believe it's more likely to exclude than includè. 20

Okay, just to review here, you've - - on this

21 exhibit you have marked wi th dark of black triangles to

22 the right those areas where there is evidence either of of a 23 a clear difference or at least some evidence

24 difference with some ambiguity. 25

Yes.

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EVIDENTIARY HEARING, VOL. 111 11-18-05 1

And that would be under 16304 under HVI and 152 and

2 198 under HVII. 3

That's correct.

And again to review, under 304, for example, and

,.v.

5 198 where you have some ambiguity, the last number 6 there, or the let ter rather of the last number - - eXCuse

7 me, the last letter, which is a lower case n, would be 8 an instance where the operator had change.s, whatever is

9 there to a lower case n to indicate the consensus was an

10 ambiguity? 11

That's the standard way to put that software works.

In your judgment .and experience is the let ter that

13 the computer generated as the consensus different from

14 the n in each case? 15

It would be unlikely for an operator to change a

1 6 cap ita i N to a sma i In. 17

And then 304 where you have a T, capital N, small

18 n, do you have a judgment or an opinion as to whether

19 the computer likely generated (inaudible)? 20

I would predict aT, but i'd have to look at the

21 electronic data to see. 22

What would you predict under 198?

The same thing.

Let's just finish this up by going to Plaintiff's

(Inaudible) .

25 Exhibit 31. What is Plaintiff's Exhibit 31, Dr. BETTY TATE, 3101 TOWNBLUFF DR., #923, PLANO, TX. 972-596-9442

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EVIDENTIARY HEARING, VOL. 111 11-18-05

1 shields, when you get there. This is dated March 15, 2004.

It is the analysis

protocol, actually it's revisions as well.

( Inaudible)

4 mi tochondrial DNA analysis protocol used by the FBI and

5 their DNA II unit. 6

And what does that FBI protocol say about how many there should be before you call an

7 points of difference

8 exclusion in mitochondrial testing? A

Two.

It talks a lot about heteroplasmy and how one

10 deals with having some heteroplasmy, and that's two

11 where there's known evidence that one of those two could

12 be a heteroplastic type. 13

And in 1995 what was the standard?

One difference, one absolute difference is an

15 exclusion. Actually the first published protocol was in 16 April or May, , 96, but that's what that protocol was 17 while they were doing their validations. All right, Dr. Shields. Those are all the isl Q 19 questions I have on direct. l

I pass the witness.

MR. ROBINSON:

THE COURT: Before you start (inaudible).

22 HVII, the numbers that you said relate to (inaudible) 192 and 107 (inaudible). 194 and 195, 23 24

THE WITNESS: HVII is 196 and 197, Your Honor.

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

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598

THE COURT: Corresponds with the computer

2 numbers or -THE WITNESS: No, they correspond with the

4 actual numbers. THE COURT: How do I come up with actual

6 numbers? 7

THE WITNESS: 121 is (inaudible).

THE COURT: Is 121 an actual or is 193

9 (inaudible) ?

10 THE WITNESS: 198 is not (inaudible).

11 THE COURT: What's 198 (inaudible).

12 THE WITNESS: (Inaudible). 13

THE COURT: 121 on the computer (inaudible).

THE WITNESS: Is 198. 152 (inaudible).

THE COURT: NNT (inaudible). How did you get

16 those actual numbers (inaudible)? 17

THE WITNESS: The actual ones? The sequences

18 of mitochondrial DNA (inaudible) computers (inaÜdible)

19 computer says I (inaudible). 20

THE COURT: And I guess - - why have computer

21 numbers at all? 22

THE WITNESS: (Inaudible).

THE COURT: (Inaudible).

MR. ROBINSON: I'm sorry, Your Honor, I

25 have -- I do have one or two more questions. BETTY TATE, 3101 TOWNBLUFF DR., #923, PLANO, TX. 972-596-9442

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599

THE COURT: Go ahead.

1 2

(By Mr. Robinson)

I forgot to ask you about your

3 af f idavi t you've submitted in this case, Dr. Shields. 4 That's Exhibit 29. Could you go there?

5 Is this an affidavit that you prepared and 6 signed earlier in this case? 7

Yes.

Is there anything in that affidavit that you would

9 care at this time to correct? 10

Yes.

ì 1

What would you correct in that affidavit?

On the bottom at

No . 7, and I would like to thank

13 Mr. Watson for pointing it out. On 16296, it should be 14 crossed out and 16304 should be put in. 15

And if you had the affidavit to do over again would

16 you have added any additional information in that 17 paragraph? lr

When I did the affidavit I had not looked at í98 --

19 and 1521 so I would have added those as other instanc~s. All right. 20 Q

MR. ROBINSON: That's all I have, Your Honor.

22 Thank you. 23

THE COURT: Cro s s ?

MS. ODEN : Yes, sir.

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EVIDENTIARY HEARING, VOL. 111 11-18-05 CROSS EXAMINATION

1 2

3 BY MS. 0 DEN: 4

Good morning, Dr. Shields.

I believe we met

5 yesterday but I i m Georgette Oden with the Attorney

6 General's Office, and let me see, where do we start?

7 You were hired for this case or are you pro

8 bono? 9 A It started out pure pro bono when I was originally 10 hired but I've taken too many vacation days.

11 Q Okay.

12 A So a nominal fee. 13 Q Professor, first I'd like to ask if a sample that 14 is going to be tested for mitochondrial DNA is 15 contaminated during mitochondrial sequencing, what are

16 the possible outcomes? 17

They're threefold. You can get the resul ts from a

18 contaminant, you can get a result that's, the mixture 19 from a contaminant and the original part of the 20 mi tochondrial DNA. You can also get a strange result

21 which I've seen in the validation studies done by Lab 22 Corps in North Carol ina. For example you can get a 23 contaminant in HVI and the target of HVII, which would 24

be a different kind of mixture.

It's a mixture where DNA but

25 there's no mixture within the two parts of the

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601

1 there's a mixture of DNA across the two. 2

You're familiar with the FBI's guidelines obviously

3 because you suggested that they include a page from the

4 FBI's guidelines on interpreting sequences? 5

Yes.

Are you familiar with the FBI's guidelines on

7 interpreting mixtures? 8

Yes.

And if a contamination event occurs, should you

10 interpret the mixture? 11

It depends on the kind of contamination.

Should you interpret a mixture that in, for

13 example, you're given a sample that has DNA from two

14 people, and I'm assuming it's not because there was a 15 lab contamination, but is a sample that originated with 16 two people's DNA? 17

If it' a - - yes, you should interpret, and can

1l interpret. 19

Okay. You mentioned that GeneScreen was using a

20 different kind of primer as to do part of this process. ..... 21 Are you aware that the FBI was using the same primers at

22 that point in time? 23

What point in time?

At the point in time this testing was done.

When this testing was done?

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EVIDENTIARY HEARING, VOL. 111 11-18-05 1

Yes.

They would have had these primers to use on

3 pristine samples, but don' t use them on hairs. 4

And are you suggesting that their results are also

5 inaccurate because they used a different primer? 6

No, I'm suggesting that they get different resul ts

7 when they use different primers. When you use primers 8 that are called micro primers, you get smaller pieces.

9 Q Hold on one second. My quest ion to you is are you 10 suggesting that the results are inaccurate because they 11 used different primers? 12

No.

But you said that they were different results, so

14 which resul t would be accurate? Both of them can be accurate, both of them can be

inaccurate.

It has nothing to do with the primers. The

17 primers 18

No, hold on a second, Doctor, I'm sorry.

I need to

19 ask the questions so that the record is clear.

20 My question to you is if they're both 21 different results how can they be both accurate? 22

Are you going to let me answer this time?

THE COURT ~ You can answer that quest ion.

THE WITNESS: Thank you, Your Honor.

THE COURT: (Inaudible). BETTY TATE, 3101 TOWNBLUFF DR., #923, PLANO, TX. 972-596-9442

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EVIDENTIARY HEARING, VOL. 111 11-18-05

They're both accurate because one them does a

2 smaller piece of the DNA and the other one does a larger

3 piece of the DNA, and they overlap. They may produce "

4 the exact same answer. The difference is the one that larger piece of the DNA may not work as

5 produces the

6 well, may not produce the result if the DNA is degraded

7 (inaudible) . 8

(By Ms. aden)

So your answer is if you use the

9 primer that produces a larger result, a longer chain, it

10 may not be an accurate resul t? That's not what I said. A 11 12

Is it your argument that because they were using a

13 primer that produced a longer chain, their results may

14 be inaccurate? 15

No.

You mentioned that in certain places the operator

17 changed the result and asa result whatl s noted is a r'

1~ lower case n. Would you agree that it's an industry 19 standard for operators to do overrides when their 20 judgment indicates that the result the computer called' 21 may be inaccurate? 22

It is.

And that's because the operator can see visually' in

24 the results that the computer's resul t - - or the 25 computer's call may not be correct; is that right? BETTY

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EVIDENTIARY HEARING, VOL. 111 11-18-05 1

604

That's one possible interpretation, yes.

2 Q And you would agree with me that when you're 3 talking about the report, which if I'm not mistaken 4 if you'll look at the big exhibit, which is Exhibit 28,

5 Page 141 - - we've killed an awful lot of trees in this 6 case 7

Okay.

So Page 141 is the first page of the report that

9 GeneScreen produced on the mitochondrial DNA testing; is

10 that right? 11

Correct.

And this is the report that you're talking about

13 when you say a certain result was or was not mentioned

14 in the report? 15

Correct.

16 Q The report mentions those sequences that are 17 different from the Anderson or the Cambridge sequence;

18 is that right? 19

Not exactly.

How am I incorrect?

It mentions those base pairs which are different

22 from the Anderson sequence, in any person of interest, 23 so sometimes it mentions base pairs that are not

24 different from -- it gives a result that's not different 25 from the Anderson sequence. BETTY TATE, 3101 TOWNBLUFF DR.1 #923, PLANO, TX. 972-596-9442

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EVIDENTIARY HEARING, VOL. 111 11-18-05 1

So for example in this case where we're comparing

2 the unknowni IID-2, with two knowns, 27, which was the 3 defendant, and 19, which was the victim, in some cases "

4 the result was the same as the Anderson but because 5 we're still comparing all three, it'll mention that i£

6 anyone of those three samples differed from the 7 Anderson sequence?

8 A Correct. 9 Q So would it be correct to say that when the test 10 was run on those three samples, the unknown and the two 11 knowns, if one was ambiguous and the other two could be 12 calledi were unambiguous, but they didn' t differ from 13 the Anderson sequence, they wouldn' t be mentioned in the

14 report? 15

I think that's a reasonable approach.

The problem

16 is 17 "

Hold on, hold on, I'm not asking you what the

problem is.

Thank you.

Now at site 152, was the defendant's sample'

the same as the Anderson sequence?

Yes.

And you know that because - - let me see, let's

refer to Plaintiff's Exhibit No. 76.

I'd like you to'

24 refer to the third line where it's report HVI I, under

25 152, there are three sets of little dashes and you said BETTY TATE, 3101 TOWNBLUFF DR. ,#923, PLANO, TX. 972-596-9442

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606

1 that was because cite 152 was not mentioned in the

2 report? 3

Correct.

The next row, the sequence file results.

Correct.

And if you wanted to see the actual data, the hard

7 copy data i for sample No. 27, which belongs to the

8 defendant, you would turn to Page 176 of Exhibit 28;

9 isn' t that right? I know, too many trees. Go ahead,

10 it's the big exhibit, Page 176. 11

Yes, that's 27.

12 Q Let me see if I can clarify something for my own 13 mind. When you start sequencing at HVII, what is the 14 numb e r 0 f the fir s t i 0 c us? It' s 73, is n ' tit? 15

(No response) .

In any mitochondrial

You're using the words improperly for an answer to

18 that question. Please tell me --

Correct me.

You don' t use the word "locus" for mitochondrial

21 DNA. There are loci in them but these are not loci. 22 "Base pair" - - that's the best way to say it. 23

Okay.

73 is the first one you're interested in, If 25 because that's the standard for forensic use. Actually

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1 you will start - - the sequences will often start before

2 73. 3

Fair enough, but when you're interested for

4 forensic sequencingi you start at No. 73? 5

Correct.

So when you're looking at Page 176, even if

7 somebody hadn't already written on it, you would know 8 that the first result was No. 73 i is that correct? 9

The way these are printed out, yes.

So MS. ODEN: And Your Honor, I don' t know if on

12 your copy you have handwritten numbers on Page 176, but

13 if you -14

THE COURT: In the far left.

MS. ODEN: And then ever ten it goes --

THE COURT:

MS. ODEN: Okay.

10'"

(By Ms. Oden)

83,93,103. So if we were on a page that didn't

19 have those numbers but we knew it was from HVI I, we 20

would know

we could write 73, 831 93?

It would be better if you numbered them 2-PGCN, and

22 then you'll know that this really did start at 73. 23 Q Okay.

24 A And usually it's going to start at 73, but there 25 are actually labs that will produce results that begin BETTY TATE, 3101 TOWNBLUFF DR., #923, PLANO, TX. 972-596-9442

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608

1 before 73. 2

But in this case, and looking at these results --

I can tell between the two of those things that it

4 is 73. 5

Okay.

So back to figuring out what Mr. Skinner's

6 resul t was at place 152, even if we hadn't known --

7 because you told us that computer No. 80 was spot No.

8 152, we'd be able to count out that at that spot he was

9 T? 10

Correct.

And now if we wanted to see what the viet im' s

12 result was at that spot, the victim being sample 19,

13 you'd agree with me we'd turn to Page 192? 14

Yes.

But her locus at No. 152 is also No. 80 as the

16 computer counted, correct? 17

That's correct.

And that would be the same for any sample tested?

Excuse me?

That would be the same whether we were testing'-"'

Oh, 80 is --

Her sample or his sample under this --

The way that these are printed out that is

I'm

24 not going to guarantee because I haven' t looked to check

25 to make sure, but yes. BETTY TATE, 3101 TOWNBLUFF DR., #923, PLANO, TX. 972-596~9442

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EVIDENTIARY HEARING, VOL. 111 11-18-05 1

So we look at the closest 152, our spot or place

2 152 for her sample and we see she is a T as well? 3

That's correct.

And if you're looking at this data, this hard copy,

she does not differ from the Anderson

5 you can tell that

Page

6 sequence at that place becau.se if you're looking on

7 192 for spot 152, Line No.6, it's the Anderson

8 sequence, isnl tit? A

Yes, it is.

MS. aDEN: Judge, do you see where I'm talking

11 about, Line No.6? 12

THE WITNESS: HVI I.

MS. ODEN:

'¡

It's the numbers in the far 1

14 left-hand column and it's the second row of the results. THE COURT: And it's going to be in the far

16 left -hand column? MS. ODEN:

17 lf

Its a y s II 6 HVI I 73 - 3 4 0 . II

THE COURT: Got it. All of those (inaudible)?

THE WITNESS: Yes. When it's the other one 'it

will be HVI.

16024 and 163 --

(By Ms. aden)

Let's not confuse it. We're just

22 talking about this one, and if you ran your finger all 23 the way over to the right -hand side of the page you 24 would see that at that spot the Anderson sequence is a

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

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610

correct.

2 Q And if you go immediately above that you see a 3 little dash, do you not? 4

Yes.

And that dash means that the results above it match .

6 the Anderson sequence?

That's correct. 8 Q Now I'm looking at the very bottom of this page,

9 just for an example, in the bot tom right -hand corner

10 you'll see one place where there is a little star 11 instead of a dash. 12

Yes.

And that means that the result above it did not

14 match the Anderson sequence, doesn' tit? That's correct. A 15 16

And so when we talk about things that do or do not

17 show up on a report, we're talking about whether or not 18 the tested samples match the Anderson sequence? 19

Correct, and 152 does not match the Anderson

2 0 sequence -21

We'll we

-- at IID-2.

That's not my question to you. My question to you

24 was the tested sample - - and perhaps I should clarify 25 it, that were able to produce a result. BETTY TATE, 3101 TOWNBLUFF DR., #923, PLANO, TX. 972-596-9442

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611

There's a quite clear result at I1D- 2.

THE COURT: You'll have a chance (inaudible).

3 Just answer her questions. THE WITNESS:

I said I1D-2 is the result. She

5 said those that produced a clear result, Your Honor.

6 Al i three of them did. One of them does not match the

7 Anderson sequence. THE COURT: Well, you'll have a chance

8 9

(inaudible) . Q

Go ahe.ad and ask another question.

(By Ms. Oden) My next question kind of gets into

11 the basics. You were asked only to review the

12 mitochondrial DNA testing in this case? 13

In detail, yes.

And you did not review any nuclear DNA testing?

I briefly looked at it.

But that's not the basis for your opinion today - ~

Correct, it isn't.

And to the best of your knowledge, the

19 mitochondrial testing that was done is reflected in that 20

report that we just talked about on Page 141; is that

21 right? 22

Yes.

That's the summary, if you will?

Right.

And that testing - - the report was dated February,

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EVIDENTIARY HEARING, VOL. 111 11-18-05

612

1 2001?

2 A I'll accept that that's true. 3 Q And you understand that Mr. Skinner was convicted 4 in 1995?

5 A Yes. 6 Q And you understand that the testing that we're 7 talking about and the testing that you're evaluating was

8 post conviction testing? 9

I do understand that.

Okay. Do you also understand that it was testing

11 ini tiated by the state, by the prosecutor? 12

I did not know that.

Now you agree completely with the report is final

14 interpretations of everything, except for I1D-2? 15

Yes.

And I1D- 2 was the second hair from the victim,

17 Twilal shand? what it says.

That's

You would agree that many people are heteroplasmic,

20 or can have two different base pairs in their 21 mitochondria, or at certain parts of the ir mitochondria?

22 A Heteroplasmy occurs frequently and probably 23 everybody has at least one or two heteroplasmic types ~

24 Q And you would agree with me that there are greater 25 levels of heteroplasmy in hair than there are in blood? BETTY TATE, 3101 TOWNBLUFF DR., #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. 111 11-18-05 1

Again. that's not quite

That hasnl t always been your testimonyi has it?

Yeah, it has.

MS. ODEN: May I approach, Your Honor?

THE COURT: You may.

(By Ms. Oden)

613

I'm showing you the transcript from

7 California vs. Scott Peterson and this is a hearing that

8 was held on November 1st, 2002. This is your testimony 9 at a pretrial hearing, and I'm going to be reading from

10 Page 547, Lines 24 through 27, and when I get through,

11 tell me if I read it correctly. "Question: What does that mean? What's much

more likely to be heteroplasmy.

"Answer: We get greater levels of

heteroplasmy in hair, for example, than in blood. n

Did I read that correctly?

You read the answer correctly. But it is out of

l' 1'8 context.

That's not my question.

I know.

Now you previously concluded

the differences of one

22 base pair are not sufficient to exclude; isn' t that

23 right? 24

I have not concluded that.

I was reporting on the

25 current protocol s of mi tochondrial laboratory test ing. BETTY TATEI 3101 TOWNBLUFF DR. i #923, PLANO, TX. 972-596-9442

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EVIDENTIARY HEARING, VOL. 111 11-18-05 1

That hasn't always been your testimony, has it?

Wha t ?

That has not always been your testimony, has it?

What has not been my testimony?

That differences of one base pair may not be enough

6 to exclude? 7

One, I just said I reported on a laboratory

8 protocol, so I don' t know what you're trying to say that

9 I've said, but why don't you just say it? 10

Doctor, I believe I did.

Is it your opinion the

11 differences of one base pair may not be enough to

12 exclude? 13

Yes, it is my opinion.

And in fact you --

One base pair may not be enough to exclude.

MS. ODEN: Objection, nonresponsive.

THE COURT: Overruled.

(By Ms. aden) And in fact, the FBI changed their

19 protocol in 1998 because heteroplasmy was causing a

20 significant number of false exclusions. That's false. A 21 22

In fact, that hasn' t always been your testimony

23 either? 24

No.

I said that because it could cause false

25 exclusions you would change the protocol, in order to BETTY TATE, 3101 TOWNBLUFF DR., #923, PLANO, TX. 972-596-9442

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EVIDENTIARY HEARING, VOL. 111 11-18-05

1 assure that heteroplasty would not result in a false

2 exclusion. 3

MS. ODEN: May I approach, Your Honor.

THE COURT: You may.

Page 523, Lines 17 to 20~

(By Ms. aden)

"What I

suggested back then in a variety of

places was that in fact heteroplasty would result

in a significant number of false exclusion with

that protocol.

"Answer: They certainly agreed with me because

they changed their protocol. ß

Did I read that correctly?

12 13

No, you didn' t. You read one sentence very long.

Did I read the sentence correctly?

Sure.

You teach at the State University of New York?

Correct.

And it's in the College of Environmental Science

19 and Forestry? -

Correct.

And you've described your area of expertise as

22 evolutionary biology? 23

Yes.

Now, you don' t personally do molecular

biology for

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

EVIDENTIARY HEARING, VOL. 111 11-18-05

616

That happens a lot.

And the principle courses you teach are - - I think

3 you've already said, were principles of the animal

4 behavior? 5

That's one.

And behavioral ecology in the rain forests and

7 reefs of Australia? 8

And then grad courses that are called topics in

9 evolution and topics of conservation biology.

10 Q Sorry, I missed those on the web site. I didn' t

11 see those. 12

Because they're graduate courses and they change

13 titles almost every year (inaudible). 14

You do supervise the work of graduate students

15 there; is that right? 16

That's correct.

And your graduate studentsi none of them do any

18 work with human forensic DNA? 19

Correct.

They work wi th --

Former graduate students do. Current graduate

22 students do not. 23

Do you supervise the work of former graduate

24 students? 25

No.

Just talk to them on the phone (inaudible).

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617

Do you supervise the work of students working on

2 wolves? 3

Yes.

And Madagascar lemurs?

She's a former student and she's a professor.

(Inaudible)

The behavior of captive tanagers in

7 zoos? 8

Yes.

The work you personally do at the University of New

10 York is very different from the work the FBI does, for 11 example, inhuman forensic DNA work? 12

It's different in varying degrees, but yes.

And you would say that about half of your research

14 and teaching is in bird and mammal behavior? 15

In behavioral ecology and conservation biology.

Would you say that half of your research and

teaching is in bird and animal behavior?

1~!

A Used to be. Now I would say it's more probably

two-thirds in mammalian behavioral ecology and one-third

in (inaudible).

.. ~

You only rate yourself as a hemigod in the field of

22 population genetics, and I know you knew that was

23 coming. 24

It's been a long time since (inaudible).

But it's true, you only rate yourself as hemigod?

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EVIDENTIARY HEARING, VOL. 111 11-18-05 A

Absolutely.

2 Q Only since 1990 have you started doing a little bit

3 of forensics; is that right? A

In terms of the actual research and reading and

5 stuff, yes. 6

But that little bit brings in about a third of your

7 income? A

No. Back then - - it depends on the year.

i f you

9 go back to the early years when I was an ass istant

10 professor, actually I think I started doing this when I 11 was an associate. 12

Hang on one second. Back in 2003 would you say it

13 was a third of your income? 14

2003? It might have been in 2002, but I don't was in 2003, and I know it wasn't in 2004 and

15 think it

16 2005. 17

How much is it now?

Less than 20 percent.

As a professor, as you already said, you supervis'e

grad students.

Is that because they benefit from yduf

21 input? 22

I hope so.

And you have experience and training and you can'

24 help them in their work? 25

Yes.

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

EVIDENTIARY HEARING, VOL. 111 11-18-05

619

You can often help them catch mistakes?

Yes.

Even someone who has a graduate degree can benefit

4 from that kind of collaboration or oversight? 5

Everybody can.

It's important for scientists to get feedback from

7 other professionals in their field? 8

Yes.

It improves the quality of your work?

Yes.

Improves the quali ty of their work?

Correct.

That's why we need things like peer review

14 journals? 15

Yes.

You double check ideas?

Yes.

18f

Double check methods?

Yes.

Exchange ideas?

Yes.

Making sure everybody is becoming more proficient?

Yes.

And you'd agree it's a good thing to have the

l¡

25 opinion of other professionals in the same field on your BETTY TATE, 3101 TOWNBLUFF DR., #923, PLANO, TX. 972-596-9442

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EVIDENTIARY HEARING, VOL. 111 11-18-05

1 work? 2

Yes.

The majority of the professional societies you ø

4 belong to deal with the study of birds, or ornithology,

5 or the study of evolution, or conservation biology;

6 isn' t that right? 7

Yeah - - all of those, absolutely.

You don't belong to any forensic science societies?

Tha t ' s correct.

You don' t supervise any graduate students in the

11 field of mitochondrial DNA or forensic work? 12

Correct.

And you don' t teach any semester or year- long

14 courses on human DNA forensic analysis? 15

Correct.

And you don' t work with any colleagues that review

17 your work, your forensic DNA work? 18

Yeah, I do.

Your colleagues at the State University of N~w Y6rk

20 in the Department of Forestry and Environmental Sciènce

21 supervise your work? 22

They don't supervise. You said review.

Okay, your colleagues at the University of New York

24 in the College of Forestry and Environmental Science 25 review your work in human forensic mi tochondrial DNA BETTY TATE, 3101 TOWNBLUFF DR., #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. 111 11-18-05

621

1 analyses? A

They do. We all use the same sequences, and we all

3 use the same chemistry. DNA is DNA, and they can easily 4 take a look at any sequence data that's produced by 5 anybody and make their own judgments about how good it

6 is or how bad it is. 7

Now you would agree with me you don' t work in a lab

8 with anyone that does human forensic DNA analysis? 9

That's true.

And you're familiar wi th Dr. Mitch Holland?

I am.

You would agree he's done a considerable amount of

13 fine research in the area of forensic mitochondrial

14 analysis? 15

Yes.

And he's of the view that forensic mi tochondrial

17 analysis is robust, and reliable, and validated? rt

i1§

Yes.

You are aware that at least one court has found you

20 are not an expert in human population genetics but were ...... 21 just an lIenvironmental science professor presently

22 concerned with non human animals?n 23

You're - - that court found me to be an expert.

24 testified in that court. 25

But they did find that you were not an expert in

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EVIDENTIARY HEARING, VOL. 111 11-18-05

1 human population genetics, you were just "an 2 environmental science professor who was presently 3 concerned with non human animals;" isn' t that correct? 4

That's a direct quote from the opinion, if I

5 remember correctly. 6

And you are aware that other courts have found that

7 your testimony was unreliable, not credible, or at least

8 insufficient to overcome Frve. 9

I've never seen that one.

You're unfamiliar with the results of California v.

11 Pappas? 12

It's not California, it's Connecticut.

Excuse me, I misread my writing. Are you familiar

14 wi th Michiqan v. Hol tzer? 15

Yes, I am.

And are you familiar wi th Tennessee v. W.are?

Yes, I am.

You haven't written any books --

Are you ~-

On forensic- DNA analysis or chapters?

No, I haven't.

On human forensic DNA analysis?

Yes.

What chapter was that?

All you have to do is look in my CV.

Chapters, yes.

It's the one

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EVIDENTIARY HEARING, VOL. 111 11-18-05

1 that studies done as a (inaudible) proceeding. 2

That's a book?

Yes.

What's the title of the book?

(Inaudible) Concepts, 1992.

(Inaudible) Human

6 identification. I'm sorry, I was looking for (inaudible) book

titles rather, and a few conference papers.

9 apologize.

10 Now you haven't published anything relating to 11 human forensic DNA analysis in a peer review journal in 12 the last five years, have you? 13

That's a false statement.

What was the peer review journal that you published

15 about human forensic DNA analyses? 16

Journal of Forensic Science.

And when was that?

ifl

This year, 2005.

I apologize. You presented a paper at the Triple'

20 AAAS Publishers of Science Meeting, but you didn' t

21 publish it; is that correct? 22

I have not.

And that's because you are, quote, "Not a forensic

24 scientist and it's not in your ballpark to make it II 25 right.

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

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EVIDENTIARY HEARING, VOL. 111 11-18-05 1

No.

The reason I didn't publish it is because I

2 didn' t submit it, because it was, and I quote, II The

3 targets of that particular article, which was a

4 criticism of the FBI's foundation studies on

5 mitochondrial DNA. n I

Hold on one second, Doctor.

I'm not talking about

why somebody else declined to publish it.

I'm talking

8 about what you said in People versus Herman Hobbs about

9 why you did not publish that paper. Did you not say 10 that you did not publish it because, quote, IIYou are not

11 a forensic scientist. It's not in my ballpark to make

12 it right. II 13

Yes.

No, Doctor, that's all of my question. Thank you.

But that's not all I said --

15 In fact, only once have you published, except for the

16 Journal of Forensic Science that you just mentioned. 17 Have you published anything on this subj ect in a peer

18 review publication? 19

Just the two.

And the one you were just commenting on someone

21 else's work, along wi th five other authors? That i s the one we were just talking about, yeah. A 22 23

Isn' t it true that most of the worki if not all the

24 work that you did in mitochondrial forensic analyses is 25 looking at somebody else's work? BETTY TATE, 3101 TOWNBLUFF DR., #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. 111 11-18-05 1

Absolutely.

Now you mentioned already the article that you

625

3 wrote criticizing the FBI's validation studies? 4

Yes.

But it was rej ected for publication by at least one

6 peer review journal. 7

Just one.

And you never submitted it for publication to

9 Jurimetrics. 10

Correct.

Have you submit ted it anywhere else?

No.

So it hasnl t been accepted

for publication by any

14 peer review journal? 15

No.

Do you testify an average of once a month?

Again, that's decl ined recently.

But at least over 150 times?

Yes.

And only six of those times for the prosecution?

Five.

Only five. And not once in the last ten years have

r I"

......

23 you testified for the prosecution? 24

That's correct.

And you've never been employed by a lab doing human

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EVIDENTIARY HEARING, VOL. 111 11-18~05

626

1 forensic DNA analyses? 2

That's correct.

And it would be fair to say you haven' t been in the

4 lab for the prosecution since 1995?

5 A I've been in the lab for the prosecution - - I don't 6 think I've ever been in the lab for the prosecution.

7 What do you mean in that question? I'm sorry. 8

When

you testified for the state ten years ago, had

9 you been in the lab or did you just testify for the 10 state on the makings of results that you were unfamiliar 11 with? 12

Results I was familiar with.

But you hadn' t actually been in the lab.

14 A I've been in lots of labs and I've watched people

15 doing these tests 16

But not on behalf of the prosecution?

That's correct. That's what was confusing me.

In fact, you never personally extracted DNA and do

19 a mitochondrial DNA test yourself? Of a human. Be careful. A 20 21

Of a human.

Correct.

And you've never amplified mitochondrial DNA?

Of a human.

So you've amplified mitochondrial DNA of the

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EVIDENTIARY HEARING, VOL. 111 11-18-05

627

1 wolves, and the lemurs, and the caviar? 2

Yeah, the caviar, absolutely.

You've never used mitochondrial DNA probes

Of humans.

of humans, and you've never tried to quantify

6 mitochondrial DNA yourself? 7

I've viewed it.

And you never -THE COURT:

(Inaudible) I think we've

of his expertise as an animal as

10 established enough

11 opposed to a human. 12

(By Ms. Oden)

Professor Shields, is it true that

13 the samples that you use in your lab, or your students, 14 are different than the samples gathered by forensic

15 institutions? 16

Most of the time, yes.

You don't do mixed samples in your research?

1 fir

We hope not because if we do it's contaminat ion.

For example, you're not t.aking several different --

lemurs' blood and trying to figure out which blood is

21 which lemurs i ? 22

Tha t ' s correct.

In fact, when you do population studies you are

24 taking a rather pristine sample from an animal to see

25 it's ancestry, I suppose? BETTY TATE, 3101 TOWNBLUFF DR., #923, PLANO, TX. 972-596-9442

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EVIDENTIARY HEARING, VOL. 111 11-18-05

Sometimes it's ancestry and sometimes it's

decendency, it's parentage.

Sometimes just who is

3 related to (inaudible). 4

In your lab you would take an animal and draw its

5 blood and you would run it, and if you've got a problem 6 you can run it again because you still have the animal

7 right there? 8

NO, we get the material in the field.

I may not

9 have the animal there. We usually have more than enough

10 of it to run it multiple times. 11

work in

And that's also different from forensic

12 humans, isn' tit? 13

From any forensic work, it may be different.

14 That's a (inaudible) sample when we're talking about

15 forensic samples in evidence. 16

Now obviously forensic samples can be degraded, but

I'm not talking about that. 18 be mixed; isn't that true?

Yes.

It can also be not just degraded or mixed, .

small to begin with.

20 but they can also be

Forensic samples can. also

Sure.

And you would agree with me that in forensic

22 human DNA work there's more at stake if you assume that

23 human life is more important than animal lives, than 24 there would be for getting the

right results from a

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

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EVIDENTIARY HEARING, VOL. 111 11-18-05 1

I would.

You don' t have as much a problem with the evidence

3 because as you described, you have a larger sample and "

4 it may be of better quality, in your work? 5

Yes.

And in your work if you need to, you could go and

7 get another sample if you had to? 8

correct.

Would you agree with me then that your work in your

10 system can tolerate a higher rate of error? 11

It can, in my opinion.

Just three more kind of big picture questions.

13 guess it's just two. Let's assume that you are correct, 14 and hair IID-2 came from neither Twila Busby or any of

15 her maternal relatives, or from the defendant. You're 16 not here telling the court you know whose hair that was? 17

I am not.

Nor can the DNA analysis tell us that if you're

1§

19 right and if it is somebody else's hair, that that

20 person was in any way involved with Twila' s murder? 21

I cannot say that.

MS. aDEN: No other questions.

THE COURT: Re-direct?

MR. ROBINSON: Just a few questions, Your

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

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EVIDENTIARY HEARING, VOL. 111 11-18-05 RE-DIRECT EXAMINATION

1 2

3 BY MR. ROBINSON:

4 Q Dr. Shields, when DNA analysis ,mito DNA analysis 5 is documented and reported, in a proper report should

6 the report report all of the places at which all of the 7 samples tested differ from Anderson? 8

Differ from Anderson and each other.

And if one of them differs --

If they differ from each other, then one of them

11 has to di f fer from Anderson. 12

In fact, is that why Anderson is used as a frame of

13 reference? If none of the samples differ from Anderson

14 then by definition, they're not going to differ from

15 each other? 16

Correct, and it reduces the number of trees you

1 7 have to ki I I to produce a report. 18

Now Dr. Shields, if we bring that down to our

so hair~, 19 situation here, here we had a half a dozen or

20 plus two known samples, one of Twila Busby's and on&of

21 Skinner, correct? 22

Yes.

And is it your opinion that to properly report,

24 GeneScreen should have reported at all of the base pairs 25 or points at which any of those, including the known BETTY TATE, 3101 TOWNBLUFF DR., #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. 111 11-18-05

631

1 samples and the unknownsamplesJ differ from Anderson?

2 A It is my opinion that you should provide all of the 3 evidence that could be interpreted (inaudible). 4

I would ask you, sir, to turn to Exhibit 28, Page

5 196. 6

Okay.

7 Q I think we've clearly established at this point 8 that at computer generated .80 is actually base pair

9 152? 10

Yes, sir.

And as you look at that data there, does that data

12 show that there is a difference from Anderson for 1iD-2 13 at base pair 152? 14

Yes. The asterisk shows that it's different

15 (inaudible) in 1 1D- 2 . 16

Now, Ms. aden read to you a couple of passages from

17 your testimony in the Scott Peterson trial, and one had 1i to do with whether heteroplasmy is more likely to be

19 found in hair than blood, and I don't have the quotation ./

here, but you indicated that what she had read was out

21 of context. Could you give the court the context?

22 A The way you asked the question is different than 23 the way that she asked the question and that's exactly 24 the problem. Heteroplasmy is more likely to be found if

25 you look at multiple hairs. It appears that BETTY TATE, 3101 TOWNBLUFF DR., #923, PLANO, TX. 972-596-9442

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EVIDENTIARY HEARING, VOL. 111 11-18-05 heteroplasmy occurs, when it occurs, in blood.

It gets

2 expressed in there more, but if it is not in the blood 3 to begin wi th, it's not going to end up in hair.. The

4 fact that hair grows and is continuously replaced allows sample all the different base pairs that are found

5 it to

6 in all the different sequences. So you end up with a

7 greater probability of discovering it -- it's not that 8

there's more heteroplasmy.

It's more observable in

9 hair. And I think the entire context (inaudible). 10

And then with respect to the change in the FBI

11 protocol i and your tèstimony about that at the Scott 12 Peterson trial, again you said that that quotation was

13 out of context. Could you give the court the context.

14 A The context was asking why -- first off, it asked 15 as is often the case, from previous I believe testimony 16 (inaudible) the fact that I had argued that heteroplasmy

17 caused problems for interpreting likely interpreting 18 mitochondrial DNA. And I said it does and it can, and 19 one of the ways that it does itJ it would create a

20 greater probability of false positives if you use the~ pair difference 21 original protocol, which was one base

22 meant an exclusion. Given that heteroplasmy exists and 23 given that we found out between 1996 and 1998 that it-

24 occurs much more frequently than was originally thought

25 by the forensic laboratories, the FBI changed their BETTY TATE, 3101 TOWNBLUFF DR., #923, PLANO, TX. 972-596-9442

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EVIDENTIARY HEARING, VOL. 111 11-18-05

1 protocol to take heteroplasmy into effect to reduce the

2 probability, but alII was saying is that I thought that's one of the reasons they changed the protocol.

4 didn't talk to them (inaudible). 5

All right. Dr. Shields, finally she alluded to an

6 article that was originally rej ectad for publicationJ

7 then not previously submitted for publication, and some 8 testimony you gave about that article., and again I

9 believe you indicated that whatever it was she quoted

10 was out of context. Do you want to give the court the 11 context? 12

It's a simple context. The paper was submitted for

13 publication, as I did produce it at a talk (inaudible) 14

and I submi t ted.

It was a critique as well as a

15 suggestion on how to do some of these validation 16

statements with greater statistical rigor.

I submitted

17 it to the journal, the journal sent it out for review, u

l' got positive reviews, asked for a revision, I revi~ed it

19 and sent it back, and then the editor said well, because 20 the original papers you are criticizing weren't 21 published here, but (inaudible) published them, but it 22 took me six months to do all these things, and I said, 2 3

that 's fine, I don't care, because what I do at school

24 is really what I get paid for at school, and that's to 25 write grants,

to work with tigers (inaudible) i and

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1 that's to write papers on birds, and lemurs and 2

(inaudible) .

I said it's not my job to fix the way that

3 the forensic scientists do this. That's forensic 4 science's job. They heard what I had to say and i'll

5 let them worry themselves. 6

MR. ROBINSON: That's all I have, Your Honor.

THE COURT: Re-cross?

MS. aDEN: Very briefly, Your Honor.

RE-CROSS EXAMINATION

12 BY MS. aDEN: is your opinion that 110-2, the unknown hair, is

13 Q It

14 more likely to exclude Twila Busby?

15 A Much more likely to exclude Twila Busby. 16 Q And because this is mitochondrial DNA, we're

17 talking about DNA that is inherited exclusively on the 18 mother's side? 19

As I stated, almost exclusively.

Almost exclusively on the mother's side.

There is evidence

But you would agree with me that paternal leakage

for some paternal leakage.

23 happens less than one in a million? 24

A good proportion, probably less than that, yes.

So almost exclusively the mitochondrial DNA, if it

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EVIDENTIARY HEARING, VOL. 111 11-18-05

1 does exclude Twila Busby, would also exclude any of her

hair?

2 maternal relatives as a donor of that

Yes.

MS. ODEN: No further questions.

MR. ROB INSON: Nothing more, Your Honor.

THE COURT: May this witness - - he's not under

7 the rule so ~ - does anybody want to hold him? MR. ROB INSON :

I'm holding him for possible

9 rebut tal, Your Honor. 10

THE COURT: Then you may step down.

MS. aDEN: Judge, I'm sorry, I'm going to need

12 two minutes to get the overhead proj ector out of the

13 jury room and get it set up. THE COURT: Take a five minute recess.

(Short Recess)

15 16

MR. ROBINSON: Your Honor, may we approach?

THE COURT: You may.

1~:

(Sidebar Conference)

MR. ROBINSON: Your Honor, before we get to

respondent's case, I just wanted to say at this point

...

21 that there's a stack of exhibi ts that we need to get 22

into evidence before petitioner rests his case.

I would 1

23 like at this time to move the admission of Plaintiff's

24 Exhibit 25, the GeneScreen report under cover letter 25 dated 2-6-01 Amber Moss to Rick Roach. BETTY TATE, 3101 TOWNBLUFF DR., #923, PLANO, TX. 972-596-9442

636

EVIDENTIARY HEARING, VOL. 111 11-18-05 THE COURT:

Any obj ection

MS. HAYES:

No, Your Honor.

THE COURT:

Admitted.

MR. ROBINSON: This is not an exhibi t we

talked abouti but we can agree on this. I'll ask in a

moment and see what the State has to say. I move to

admit Plaintiff's Exhibit 26, which is a letter dated

7-20-00 from Bill McMinn to the GeneScreen Forensic Lab.

It's a letter sent by which Bill McMinn of the District

Attorney's Office submitted

THE COURT: Any obj ection?

MS. HAYES: No, Your Honor.

THE COURT: Admitted.

,, (t..

to 25?

MR. ROBINSON: I would move to

admit

Plaintiff's Exhibit 28, which is the lengthy GeneScreen

discovery response (inaudible).

MS. HAYES: No obj ect ion.

THE COURT: Admitted.

MR. ROB INSON: I move to admit Plaint iff's

Exhibit 30, which is

THE COURT: Admitted.

MR. ROBINSON: I move to admit Plaintiff's

Exhibit 31, which is an excerpt from the FBI

mi tochondrial protocol.

MS. HAYES: Obj ect on the rule of optional

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1 completeness, and on hearsay. MR. ROBINSON: We've been talking about

3 (inaudible) -4

THE COURT: Admitted.

MR. ROBINSON:

MS. HAYES: Your Honor, if I may) we also

(Inaudible) .

7 believe that excerpt is also missing pages on how to 8 interpret mixtures, which is important, and that's why

9 we're objecting on completeness grounds. THE COURT: This is something published by the

11 FBI laboratories? UNIDENTIFIED SPEAKER: It's their procedural

13 manual. THE COURT: I'll admit it and allow you to

15 supplement one with any additional papers. MR. ROB INSON: And Your Honor, I move to admit

17 Plaintiff's Exhibit 76, which is Dr. Shields' summary l,

1 Ít. report.

THE COURT: Admitted.

MR. ROBINSON: And then I have one question,

.....

Your Honor.

I show that 77 has been admitted but --

THE COURT: 77, yes.

MR. ROBINSON: That is the Max Courtney

24 (inaudible) . 25

THE COURT: If not admitted, it is now. BETTY TATE, 3101 TOWNBLUFF DR., #923, PLANO, TX. 972-596-9442

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rests .

MR. ROBINSON: Petitioner

THE COURT: You may proceed.

MS. aDEN: Thank you, Your Honor. Respondent

4 calls William Watson.

THE COURT: William Watson.

5 6

WILLIAM WATSON. Called by Petitioner (Sworn)

7 8

DIRECT EXAMINATION

11 BY MS. aDEN: 12

Go ahead and introduce yourself to the court and

13 spell your last name for the record. 14 A My name is William Watsoni W-a-t-s-o-n. 15 Q And Mr. Watson, can you tell us where you are 16 currently employed and how long you've been working

17 there? 18 A I i m currently the forensic laboratory dire~tor at 19 OrchidCellmarkin Nashville, Tennessee and I've been-

20 there since June, 2001. 21

Where were you previously employed?

Previously I was the senior forensic scientist at

Orchid Cellmark in Dallas.

I left there in June of 2001

24 and I had been there since October of 1997. 25

You don't have to recall the exact years or exactly

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1 when, but can you tell us where you worked before you

2 worked at Orchid Cellmark as a senior forensic

3 scientist? Before that I worked for the Fort Worth Police

Department Crime Laboratory in Fort Worth, Texas.

I was

6 there two years, and prior to that I was at the Dallas

of 7 County Medical Examiner's Office, Southwest Institute

8 Forensic Sciences in Dallas, Texas. 9

And what did you do there?

Well, my title was forensic DNA Technologist and I

11 believe scientist, and prior to that I was at UT l

Southwestern Medical Center in Dallas as a research

13 associate. 14

Can you tell us a little bit about your education.

Yes, I have Bachelor's Degree in biology, from

Southwest Texas State Uni versi ty, San Marcos, Texas, and

a Master's in biology from University of North Texas in

II'

1 ö".

Denton.

û¡

Are you currently pursuing further education? ..

Yes, I am pursuing my Ph. D. at the University of

21 North Texas.

be in?

Molecular Biology.

Do you belong to any professional societies?

i do.

And what will your Ph.D eventually

I am Fellow of the American Academy of

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1 Forensic Scientists, I'm a member of the American 2 Society of Crime Laboratory Directors i I'm also a member

3 ofSWAFS - - Southwestern Association of Forensic 4 Scientists, and a group called AFDAA, which is the 5 Association of Forensic DNA Analysts and Administrators. 6

Have you had any publications in pure review

7 journals? A

I have.

I have two publications in peer reviews.

save the court reporter, I'm not going to

9 Q And to

10 ask you to say the long words in the titles. Were they 11 related to your dealing with DNA analyses? 12

They were remotely related to DNA analysis, yes.

Have you made any presentations to professional

14 societies regarding your apti tudes? 15

I believe so.

Can you tell us some of the associations you've

17 made presentations to? 18

Yes, I have presented at the Promega International

19 Symposium on human identification, the Louisiana

20 Association of Forensic Scientists Meeting, the American 21 Academy of Forensic Sciences meeting on 22 qualifications - - and I should say the Promega

23 International meeting on human identification. 24

Have you ever made a presentation to either

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have made presentations to both.

Have you been certified as an expert by any court?

II ve been certified as a expert in ten states.

Did you testify for the State or the defense?

I've testified for the State and the defense.

And about how many times have you been certified as (inaudible) ?

7 an expert and testified in court or

Approximately 50 times.

Do you have with you a copy of your curriculum

10 vitae? 11

I do.

MS. ODEN: May I approach, your Honor?

THE COURT: You may.

(By Ms. aden)

I'm showing you Respondent's 26.

15 this a complete and accurate copy of your curriculum

16 vitae? 17

Yes. My office gave you the same one. This one

" 1l just printed differently. MS. aDEN:

19 20

Your Honor, we move to admit

Re spondent 's 26.

MR. ROBINSON: No obj ection, Your Honor.

THE COURT: Admitted.

(By Ms. aden) What are the (inaudible)

24 requirements for being a DNA forensic analyst? 25

Well, you have to have a Bachelor's Degree in what

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1 is called hard science. That has to be biological 2 chemistry, biochemistry. You have to have completed 3 course work in molecular biology, biochemistry, 4 genetics ,and course work for additional (inaudible). 5

Is it relevant for determining someone's

6 qualifications to be a forensic scientist to know when

7 they studied, for example, molecular biology?

8 A It certainly could be, because most of the

9 techniques that we use for forensic scientists - - if 10 you're a forensic scientist now -- were developed in the early '90's. Molecular biology

11 mid to late '80' s i

12 courses prior to that time being need to be reviewed to

13 insure that they cover suff icient material (inaudible). 14

I'd like to talk to you about the analysis that was

15 performed in this case. You reviewed the documents that

16 have already been produced in evidence, the 17 mitochondrial testing that was done in 2001, have you 18 not? 19

I have.

when you looked at the documents as a whole did

you

21 come to a conclusion that any mistakes were made in this 22 case?

23 A Well, the one that - - the only mistake that I have 24 seen that I wish I could go back and correct was that I' 25 was asked to provide a preliminary verbal result on BETTY TATE, 3101 TOWNBLUFF DR., #923, PLANO, TX. 972-596-9442

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EVIDENTIARY HEARING, VOL. 111 11-18-05

1 testing that was done in the laboratory prior to the

2 completion of all the testing. 3

in that binder by your

I'm going to refer you to

4 elbow, it is Petitioner's Exhibit 28, and I'd like you 5

to look at Page 20.

In the synopsis of a conversation

6 that took place in December of 2000, is that your

7 handwriting? 8

It is.

And tell us a little bit about why you feel your

10 preliminary report was a mistake. 11

Well, what I

told Mr. Mann at the time was that the

12 profile from 11D-2, was consistent with the suspect, but words , this sequencing 13 partial at that time. In other

14 hadn't been completed. That would require resequencing 15

but I did not expect the results would change.

I said

16 that no profiles were inconsistent with either the 17 victim or the suspect. , And why did you feel that that was a mistake?' iti Q Because at the time it's normally inappropriate,

and in fact it wasn't appropriate at this time to

21 release preliminary results prior to all of the data 22 being completed because something in the data that is 23 generated after you release this information might

24 conflict with that. 25 In fact, that's essentially what happened, and BETTY TATE, 3101 TOWNBLUFF DR., #923, PLANO, TX. 972-596-9442

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1 the results that we obtained were inconclusive. 2

Was it a mistake in the sense that the profiles you

3 obtained were inconsistent with both the suspect and the

4 victim? 5

Well, the profile from the hairs that I was able to

6 interpret those results did not change, those were 7 consistent with the victim, and I can't say whether or

8 not, hair 11D-2 was consistent or inconsistent with 9 either the victim or the suspect because by definition

10 it was inconclusive.

11 Q I i d like to ask you one big picture question before 12 we get into the specifics of the analysis.

13 Bottom line, if William Shields is correct, 14 and hair number 11D-2 is not from Twila Busby or from

15 Henry Skinner, do the results on l1D-2 prove anything 16 about who killed Twila Busby?

17 A They do not. 18

And why not?

DNA evidence, like al i other evidence, has to be

20 taken in context wi th the big picture, so it cannot 21 indicate the gui It or innocence; it's just evidence. jury

to decide.

22 Guilt or innocence is for the

Perhaps we haven't all heard that there is an

24 architypal case where a hair was found in the throat of 25

a four year old child. BETTY TATEJ 3101

Is that one of the cases where

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EVIDENTIARY HEARING, VOL. 11111-18-05 or innocence? 1 DNA would more strongly indicate guilt

Well, it would certainly be something that would

3 need to be explained.

4 Q How does that differ from this situation?

5 A Well, the throat of a child, I suppose the example 6 is - - let's say a hair is found in the throat of a

7 child, and it's not supposed to be there clearly, so it would need to be explained.

It would have higher

9 evidentiary value than say hairs collected in a men's

10 room, or hairs collected in -- from a çarpet in a home, 11 or any high traffic area. Mr. Shields' complaints failed to take - - did they

fail to take something into account?

A I'm not sure what you're --

When William Shields is talking about the results

16 that were obtained, you're familiar with his complaints 17 that 11D-2, in his opinion, should have been conclusive. ,,

1~ Do his complaints fail to take something into account? 19

They do.

I believe they failed to take into

20 account that the sample is a mixed sample. 21

Well, can a mixture of mitochondrial DNA be

22 interpreted? 23

Well, certainly it could be interpreted. The

24 question probably is better asked "should it be 25 interpreted, ~ and the forensic community at this time BETTY TATE, 3101 TOWNBLUFF DR., #923, PLANO, TX. 972-596-9442

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EVIDENTIARY HEARING, YOLo 111 11-18-05

1 has basically answered that question uno." It is not 2 appropriate to interpret a mixed specimen because of the

3 possibility of interpreting the profile incorrectly. "

Can a mixture of nuclear DNA be interpreted?

Nuclear DNA mixtures can be interpreted.

instances

In many

there are instances where they can also.

7 Typically they're a bit easier to

interpret just because

8 of the type or the system that you're testing. 9 Mitochondrial DNAJ due to how itl s inherited and how

10 it's tested, is a bit more complex; I believe, when

11 reviewing the data from a mixture than we would see from 12 nuclear DNA. 13

I want to make it clear, were you asked to review

14 any of the nuclear DNA testing that was done at the 15 guilty/innocence trial of Mr. Skinner? 16

I was not.

So when we talk about the testing that you did

18 review, which testing are we talking about?

19 A I looked at - - some of the nuclear DNA testing that 20 was done in our laboratory in Dallas, and all of the in Dallas. 21 mitochondrial testing that was done

Do you have some overheads prepared that would help

23 you explain to the court your conclusions and your

24 analysis? 25

I think that they would help in understanding how

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EVIDENTIARY HEARING, VOL. 111 11-18-05

1 the testing was done and how a mixture potentially could

2 have happened. 3

Do you have those wi th you?

I do.

okay. Why don't you go ahead and step down to the

overhead. Let me give you a copy.

I don't know if

7 they're exactly in order. MS. aDEN: Your Honor, would you like a paper

9 copy whi Ie we're... 10

First let me say that Professor Shields did a

11 pretty good job explaining how mitochondrial DNA

(inaudible)

it's really helpful (inaudible). But I

13 thought that I may, wi th your permiss ion, Your Honor,

14 just cover a little bit (inaudible) sometimes

15 (inaudible) . THE COURT: We appreciate all the help we can

17 get. l.l-

is:

Basically you analyze about 610 base pairs of.

19 mitochondrial DNA. These are found in the (inaudible) '. 20 I don't think I need to cover that. Essentially what we 21 do is we take each of the samples separatelyi generate a

22 prof ile and then we compare them. Just like many other 23

types of

the other type of DNA analysis.

24 In order to compare them - - once again as Dr. 25 Shields noted - - we would compare them to a reference BETTY TATE, 3101 TOWNBLUFF DR., #923, PLANO, TX. 972-596-9442

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sequence that was published that covered the region of

interest and we only use this in order to quickly

describe where the samples differ from each other and

where they differ from the reference sample. In other

words, instead of having to put 610 A's, T' s i G' sand

C' s one after another in the report, we're just going to

put where it really is significant in the report.

Q Let me interrupt you and ask you is it the choice

of the person who's interpreting the results, which

resul ts get put in the report, the summary of the

results?

A No. Actually the appropriate procedure is the

procedure that we use and most forensic laboratories

that I'm aware of use, would be to include all the

locations on the mitochondrial DNA that vary from

Anderson in all of the samples that we interpret in a

profile.

Q So that is just the standard way of, putting things

in the report, it's not something "oh, I don't feel like

putting that in this report?"

A That' scorrect . Unlike the standard FBI analysis

that you may have dealt with in past cases, those

locations are set; they're not going to change, they're

clearly delineated, this is the location that we're

testing, this is the location we're testing, this is the

1 F

1;.~.

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1 location we're testing. There's mitochondrial DNA in

2 anyone of those 610 base pairs, or many of them, that 3 vary from the reference sample, so we would report them

4 that way. 5

And when you say vary from the reference sample,

6 are you talking about varying from the Anderson

7 sequence? A

That is correct.

I'm sorry - - from the Anderson

9 sequence. 10

Okay, please continue.

Just a quick demonstration of the PCR. We've

talked a little bit about it

extracting DNA in the

13 sample, purify it, then we'd run it through the PCR

14 process where it creates a chain reaction where we start or billions of

15 with a few copies and then make millions

16 copies. 17

Are you familiar with how many cycles were run of

(I'

1~ PCR to amplify the mitochondrial DNA in this case?' In this case there were 35 cycles run.

wanted to include this.

I just

It may not be exactly

21 representative of the procedures that we used in our 22 laboratory, but it's a good demonstration, or a good

23 guide (inaudible). 24

So essentially what we did is we take the two

25 regions, HVI and HVI I, and we break them up into two BETTY TATE, 3101 TOWNBLUFF DR., #923, PLANO, TX. 972-596-9442

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1 sect ions. 2

Let me interrupt you just one second for the

3 record. Go ahead and tell us what is the title of the 4 overheard you're looking at as you describe it.

5 A Mitochondrial DNA Amplification and Sequencing

6 Scheme. 7

Okay.

So this - - these regions - - the primers that are

9 used to do the PCR testing with amplification are

10 designed to break out the HVI and HVII regions in the ( inaudible) middle, and we sequence and add to 11 process

12 the (inaudible). We sequence forward on one strand and

13 reverse on the other, That's the "A" and the uR", and

14 then we match those to make sure that we got the 15 appropriate roadblock. i 6 We do that again with the (inaudible) section

17 down here, forward one-way, reverse the other way, and 18 then we take all those sequences together and determine

19 where they overlap, and when we put all that sequence 2 0 together, end to

end and trim off the parts that we

21 don't normally review, we would have a sequence for all 22 of HVI and HVII. This is all HVII. We would do the 23

same thing for HVI.

It's just a way a larger piece of

24 DNA can be analyzed into smaller pieces. 25

Let me ask you about the primer issue, Were the

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1 primers that were used to break up the DNA in this case i

2 breaking it up into such large pieces that an inaccurate

3 resul t would happen? A

No, I don't believe so at all. These are the

5 primers that were used in the FBI laboratory at that

6 time. Now they're designated differently in the FBI 7 lab. They had, what I consider to be a rather complex 8 scheme, for numbering and designating which one is

9 forward and which one is reverse, so we made it very simple and said HVI-A, forward, HVI-A reverse, and

11 that's the front part of HVI-A. HVII-B forward, and

Issue HVII-B reverse.

It just made it a little bit more

13 simple, but it's not a common way to reference these

14 primers. 15

Okay, please be continue.

Now, there are other primers sets that have been

17 developed and others that are used in their micro i

l' amplification primer sets that have been developed since 19 then, but at the time this was the most common set that /

we used for forensic cases like this.

And what's the next overhead that youJ re looking

22 at? 23

This is the dye-terminator, cycle sequencing.

24 don't know if you recall, but Dr. Shields referred to 25 this as one of the most eloquent things in molecular BETTY TATE, 3101 TOWNBLUFF DR., #923, PLANO, TX.. 972-596-9442

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biology that (inaudible).

(inaudible) .

I'11 agree wi th that

It's one of the few things in molecular

3 biology that does exactly what it's supposed to do. "

4 Very clean looking, it's actually very easy to

5 understand if it's displayed or if it's discussed

6 greatly. Essentially what happens is we've amplified

8 the DNA now, now I want to discern what the sequence is.

9 In order to do that, I'm going to label fragments of

10 this DNA

11 Q Do you need a pen? 12 A YesJ that may be a little bit better to use this 13 pen. So we take the DNA that we've amplified here and 14 denature it wi th these and we add another primer, and

15 this is called the sequencing primer, and it will bind

16 to the DNA, or the amplified product. Then we will put 17 it through the cycle sequencing process where that

18 primer will be extended. The base pairs' are 19 complimentary to this sequence of DNA. 20

As Dr. Shields pointed out, every now and then a base is incorporated that stops the process.

22 normally when we do PCR, we've got a primer, and then

23 you have the enzymes and the other components, and it' 24 just makes copies, copies, copies, the whole thing. For 25 this process you've added an additional chemical, which BETTY TATE, 3101 TOWNBLUFF DR., #923, PLANO, TX. 972-596-9442

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1 is incorporated and then it stops, and when it stops

it's got a dye on the end of it, duly labeled by us.

3 didn't have the appropriate colors so I just used what I

4 had, but here we have the dye. Now imagine this segment here, in each

6 instance being oneJ base pair one, (inaudible) the last 7 knowni and all being labeled with a dye that' B

8 appropriate to that base (inaudible). 9

Let me see if I understand you.

Is it the case

10 that it doesn't just stop randomly but it stops at the

11 appropriate place to show you whether it's an A or a C

12 or a T or a G? 13

Well, it stops at a place where that stock chemical l

14 was incorporated, and that corresponds to the A, T, G or

15 c. 16

So to show you what it looked like when you

17 look at data, actually this is the dye~terminated lr

products. In other words, each of those fragments' of 19 DNA now are one base pair longer than the last one, artd

they each would have a label dye on the end of it.

21 know it's difficult to follow what it looks like back 22 there, but let me show you.

23 This is what sequence DNA essentially looks' 24 like, so you've taken those products that have all been you've run it 25 labeled with different colored dyes that

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iout on the sequencing, and the laser strikes that 2 chemical that's on the end of that fragment, maybe it's

3 white, (inaudible), a variety of different wave lengths. 4 There's a camera that picks up that light. It converts 5 it to digi tal information, then you get these nice

6 colored peaks that you can sit here and look at, and say

7 okay, well, all the C's are going to be blue, and all 8 the T's are going to be red, and all the A's are going 9 to be green, and the G' s wil I be black, so you could

10 look at it .and say, oh, label it C, C, A, G, T, A, and

11 your copy is virtually black and white, so of course 12 you're not seeing this.

13 Now, let us say we type two different samples 14 that we know of two different individuals, and look at 15 them and we find that there's a variation between the 16

two.

There's an example of that right here.

We've got

17 the top sequence being one individual and the bottom 18 sequence being from a different individual and

they

19 don't match at this location, so there's our C for this 2 0 individual, and a T for this individual and (inaudible).

21 That's it when you're dealing with clean pristine simple 22

samples.

You get a nice profile in most instances, it

23 comes up with these colored peaks, and you can tell, you 24 know, what the colors should be, so you go on and string 25 let ters saying A, T, C, G, whatever, and compare that BETTY TATE, 3101 TOWNBLUFF DR., #923, PLANO, TX. 972-596-9442

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1 between - - initially compared to the Anderson reference

2 sequence, and then you get a list of where these things

3 differ from Anderson.

4 Then you compare that back to the other sample 5 if you want to, and you see where it differs from 6 Anderson and you'll know whether or not the samples

7 match. 8

Which portion of what you showed us is the

9 electronic data that Mr. Shields was talking about? 10

Well, the electronic data - - it's actually all

electronic. I mean none of this is generated by hand. 12 There are typically hand locations that are put on 13 there, but the SEQ files are the strings of letters. 14 The electropherogram data, the data comes off of the

15 sequencer or color peaks. MS. aDEN: And Your Honor, at this time I'd

17 like to introduce these documents, but I'm lettering J,l:r

1 l them because I couldn't remember where we were, so. it's

19 Respondent's Exhibits A through G in the order that they ..

were presented by Mr. Wat son.

THE COURT: (Inaudible)

MS. aDEN: (Inaudible) and if you want to put

23 a number on it we can call it whatever number A through

24 G. 25

THE COURT: Would it help - - the government

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1 doesn't have anything after Respondent's No. 41? 4 a

2 was -3

MS. aDEN: 40 was Dr. Chamales' vitae.

THE COURT: Right. 41 -A through what?

MS. aDEN: G.

MR. ROBINSON: No obj ection, Your Honor.

THE COURT: They're admitted. Are you through

8 wi th the proj ector? MS. aDEN: For right now.

it for a moment.

I'd like to leave

I think we may refer to it in just a

11 moment.

12 Q (By Ms. aden) Go ahead and have a seat, al though 13 you may end up just hopping right back down. I'm sorry. whether a mixture

14 When we were talking about

15 of mitochondrial DNA can be interpreted versus should be

16 interpreted, does looking at this diagram help you 17 explain the difference between can and should?

18 A Certainly. 19 Q All right, step back down. Sorry. 20

We're reviewing the clean sample and this is the

21 type of data we would expect to see. 22 Q Let me pause you right here. What do you mean by a 23 "clean sample?"

I mean (inaudible) There's going to be 25 contaminated DNA that's introduced (inaudible) or it's

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1 not a sample that started out mixed or something like

2 that. 3

Two bloods mixed together?

Yeah, two bloods or tissue from the crime site

5 could be mixed. 6

So go ahead and tell us what would you see if you

7 had a mixture? A

What we typically see when we have a mixture is you

9 will have peaks that underlie the peaks that you have

10 here, so for example, let's say 11

THE COURT:

THE WITNESS:

THE COURT:

THE WITNESS:

THE COURT:

I need to ask you something.

Yes, sir. You've got the colors on here.

Yes, sir.

That's the (inaudible). I'm sorry? THE WITNESS:

THE COURT:

colors or the peaks?

19:

THE WITNESS:

Do you make your readings from the

Well, it's a

combination because

there are instances where you could have a peak --

THE COURT: Here' swhyI' m asking that.

22 You've got C and T on -- where you show it -- show the

23 differentiation. 24

THE WITNESS: Right.

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1 two T' s and you've got a high peak and you've got a low

2 peak. THE WITNESS: That's a good question. But the

4 peak height - - assuming these are unmixed samples, the

5 impact is based on a variety of things. The efficiency 6 of which that stock chemical gets incorporated in the

7 sequencing reaction, that could impact how high that

8 peak will go. THE COURT:

It's not so simple as just looking

10 at peaks. THE WITNESS: That's right - - well, I made out

12 this well, really the color is the issue. Anything 13 that is labeled wi th a dye (inaudible) in this example, 14

the dye that is going to be cut off the loop.

It's

15 going to be a C~ so if you have a peak and it's b1ue,

16 it's a C. 17 Now, let's say for example that the top table 18 here was actually mixed with DNA from the bottom sample.

19 What you might see is a peak like this come in 20 underneath, and when that happens i one of two thing~ ~an 21 happen. The software sometimes will call the highest

22 peak. It will just say "oh, this is a C." It will not 23 notice the lower peak. And sometimes it will see a 24

lower peak and say, "Uh-oh.

There's a problem here.

25 I'm going to designate this as aN." BETTY TATE, 3101 TOWNBLUFF DR., #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. ILL 11-18-05 1

659

(By Ms. aden) And when you sayan N do you mean a

2 capital N or a little N? A

It's a capi tal N. The software makes a

4 determination that it cannot interpret what this means.

5 They're the two colors there, they're close enough

6 together, or over lying each other exactly, so it's just

7 going to say I can't do it. 8

Mr. Watson, for the record's sake, can you describe

9 for us what you drew to represent a mixture? 10

Yes. What I drew was a red peak that underlie the

11 blue peak in the top sample of this example.

o¡e ¡

So if you see that once, somet imes even twice

13 in rare instances, that can be an example of

14 heteroplasmy, so that's the example that Professor 15 Shields gave where you actually have mi tochondria that

16 have di f ferent types (inaudible) on bottom. You see it 17 many timesi that's much more indicative of the mixture li

1* than it is of heteroplasmy.

19 So in an instance like that, it's 20

inappropriate to interpret that profile.

one that it is?

A Well ,for the reason that Your Honor brought up~

Why can't you just say well, the taller peak is the

24 The peak height is not always dependent on - - the peak 25 height cannot be used to interpret the data because the BETTY TATE, 3101 TOWNBLUFF DR., #923, PLANO, TX. 972-596-9442

660

EVIDENTIARY HEARING, VOL. 111 11 - 18 - 05 1 ability for that dye to be incorporated - - the

2 efficiency with which it's incorporated can vary, so 3 let's say wi th this example - - let's say that the red

4 peak actually was higher than the blue peak in our 5 example, because for whatever reason, the efficiency in 6

which that dye is incorporated was higher.

I f the

7 instrument interprets that now as aT, that will be 8 incorrect, because you don't know, it could be a T or it

9 could be a C, and so in that instance, it i s 10 inappropriate to interpret the profile. 11

OkaYJ thank you. I think you can s it down now.

12 And when you take your seat, I'd like you to look at

13 that big binder that's on your left, an I'd like you to 14 look at Exhibit No. 28, Page 195. 15

Yes.

And I'd also like you to look in the ot.her binder

17 and you'll see their summary exhibit, which is

18 Plaintiff's Exhibit No. 76. 19

I have that also.

Okay. One of Dr. Shields' complaints was that the

21 hair, 11D-2, when it was

reported, was called

22 inconclusive. Why was hair l1D-2 called inconclusive?

23 A Because there were mul t iple instances where there 24 were peaks that underlay other peaks and so it was my 25 interpretation of the data that this was a mixed sample, BETTY TATE, 3101 TOWNBLUFF DR., #923, PLANO, TX. 972-596-9442

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EYIDENTIARY HEARING, VOL. 111 11-18-05

1 and therefore inappropriate to interpret. 2

So tell us what we're looking at at Page 195.

We are looking at a portion o£ the sequence data ..,..

4 from HVI on Sample 11.

5 Q And just for an example, on summary exhibi t, No. 6 76, the top line where it says "Report for HVI, II for

7 place No. 16294," can you tell us if that shows up on

8 Page 195 and where it does? 9

It does.

Okay. Where would place 16296 be on Page 195?

16296 would be three base pairs after the computer

12 generated No. 270. 13

So that is No. 296 then?

Tha tis 296.

And tell us what results were called by the

16 computer and what results you interpreted? 17

The computer called an N for the forward primer

l.,

1~ sequence of 11D-2 and it called a T for the revers~ 19 primer sequence of 11D-2. 20

Why did you put down a small

case N on the third

21 line? The software is not the same software that

Professor Shields used, or viewed.

say it's probably not as highly developed.

It is not -- let me It's a much

25 older software package, originally designed by the BETTY TATE, 3101 TOWNBLUFF DR., #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, YOLo 111 11-18-05

662

1 manufacture of the sequencer, and it could interpret a 2 sequence and say this should be called a T because one 3 of the directions gave a clean - - what it considered to

4 be, a clean profile of a T, whereas the other direction

5 did not. 6

Do both directions have to match, or provide a

7 compliment for you to be able to consider it a good

8 result? 9

Yes. Actually the requirement for reporting any

10 base pair location is that the sequence data must match

11 going in both directions. In at least two of the prime 12 sets, so if it was in that region that overlaps between 13 the A forward and reverse and the B forward and reverse,

14 that center section, if I had two that matched up. Now, 15 if I had several lower n' s in there, or something like

16 that, it would look like it was a mixture and it's still 17 cal ling it aT, even though there's a T and C present,

18 then it may be interpreted as an n by me, even though would have called it aT.

19 the software

Would you consider the operator override that you

21 did at that location to be increasing or decreasing the

22 accuracy of the results? 23 A I would actually consider it neither because I 24 don't consider this to be an interpretable result. 25

If I understand you correctly, you're saying

that

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EVIDENTIARY HEARING, VOL. 111 11-18-05

1 IlD-2 was called inconclusive at all places in the 2 report because at some places it was inconclusive; is

3 that right? 4

That's right.

Why can't you just call the places that are

6 conclusive and then leave the other ones inconclusive? 7

Because the error in that mind set is that the

8 places, as you described that are conclusive, are in

as 9 fact ,not conclusive and they are inconclusive just

10 the other location where there are N'sJ or there's an N 11 and one letter, or whatever, but they're inconclusive,

12 and by definition when a profile is mixed, I will not

13 interpret the data as conclusive. 14

When we talk about these different places, you're

15 not talking about different samples, are we? 16

NO, we're not. We're talking about different

17 locations on the DNA within the

lt,

same sample.

And so if part of the sample is a mixture, whcit

19 happens to the rest of the sample? ...

Well, it's -- by definition if part of it is a

mixture, then all of it's a mixture.

It just may be

22 that you' renot seeing all of the areas where the 23 mixture occurs because of that idiosyncratic part of the 24 dyes being incorporated in the cycle sequencing 25 reaction, because there can be more efficient at some BETTY TATE

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

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EVIDENTIARY HEARING, VOL. 111 1i-18-05

1 locat ions than others, because the dyes themse I ves or the sequences around it, or a variety of reasons.

3 confuses the issue, even in locations where there do not

4 appear to be an issue. 5

So at a place where the computer was able to make a

6 calIon the sequencing file, which is the second and the 7 fourth line on this side, is it your opinion then that 8 it still should be called an inconclusive sample across

9 the board? 10

Yes.

Is it possible for you, when you look at these

12 results, to reasonably conclude that hair 11D-2 did not

13 come from Twila Busby or one of her relatives?

14 A Once again, I have to refer back to the fact that 15 it is inconclusive profile. The way that I would have

16 interpreted the statement then, now, is the same -- it 17 is an inconclusive profile. 18 Q And I hate to belabor a point but I'd like to go 19 through

some of the results that he discussed

20 specifically.

21 When we look at the first result on his 22 Exhibi t No. 76, which is in the report I ine for HVI, 23 Place No. 16069, and we're also looking at the sequence 24 file made up for thati which is right below it, where 25 would we look to see what the sequence was for 11D- 2 and BETTY TATE, 3101 TOWNBLUFF DR., #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. 111 11-18-05

665

1 the two known samples? Would we look in the pages of 2 this report that have all the letters, like the C, A, C,

3 T, G? 4

You mean in the actual data or --

Yes, in Exhibi t 28.

You would look at Page 194.

So let's talk about what that Page 194 is. Tell us

8 what data that is showing. A

That is more HVI - - the sequence from the HVI

10 region of Sample 11D-2. 11

And I see there's some handwritten numbers on here.

12 Are those numbers that you put in? 13

They are.

So tell us where Spot No. 16069 is on this page.

15 Did you note that? 16

I'm not sure if I noted it or not. Let's see...

I don't know if you see it on your copy. Do you

1g see a handwritten 064 on the second--

19 A I do, i do. 20

So how would we find Spot No. 69?

Count off from that.

And what results did you obtain for 11D-2 at 16069?

16069, let's see, it's C.

But we know that if it's part a mixture it's all a

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

EVIDENTIARY HEARING, VOL. 111 11-18-05

666

That is how it's interpreted, that's correct.

And is that why you noted that it was inconclusive,

3 even though the computer thought it was a C at this

4 place? 5

That's correct.

So when you look at his summary file under sequence

7 file, he says at spot 16069 the defendant for Sample 27

8 was a C. I'd like you to turn to Page 178. 9

Okay.

And can you tell us where - - is 69 in the same

11 position on that page? 12

It is.

And are we looking at the data for Sample No. 27?

We are.

What does the computer call there?

It called a C.

And if you wanted to see the victim's sample, which

18 was No. 19, let's look at Page 172. 19

Okay.

And again, is 16069 in the same position on the

21 page? 22

It is.

Did you in fact note that on the page?

I did.

And so we get the complete picture at that point

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EVIDENTIARY HEARING, VOL. 111 11-18-05

667

1 that the victim's sample was called as aT; is that

2 right? 3

That's correct.

The next example that he commented on, and I don't

5 believe we have to go through page by page, but on his 6 summary exhìbi t in the second i ine for sequence file

7 under spot 16126, he comments that the computer called 8 it an NCN. Why

does that not mean that 11D-2 - - you

9 can't call that, can you? 10

No. As a matter of fact, when I looked at it, as I

11 noted on the sample, for the page for 11D-2, it was 12 actually a double peak and there was a T and a C there,

13 but the computer called it as aC. 14

So that is one of the cases where you visually

15 noted both peaks? 16

That's -- I just -- that was one of the first ones

17 that I looked at on the sample, so as I'm going through

if:" the sample, I noted that one, and I did a notation. As

19 I went further through the sample I saw more and more

20 instances of that, and that's when I realized this is a 2 1 mixed sample and I cannot interpret it.

2 2 Q So let's move down on this summary exhibit to spot

23 No. 16294 under the sequence file data for the hair, 24 it's a large N, large N, small n, and I think that's

25 found on Page 195. BETTY TATE, 3101 TOWNBLUFF DR. ,#923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. 111 11-18-05

668

That's correct.

Why does

Well, I noted a small N there, and to be honest, at

it say large N, large N, and then small N?

4 this point in time I couldn't tell you why I did that. 5

Did the computer put in the two large N's?

It did.

And that indicates to you what about 11D-2?

That it could not interpret the profile either

9 direction, forward or reverse. 10

So let's talk about Spot No. 16296, which is the

11 next place on the summary exhibit. For 11D-2 you saw a

12 capital N and a T? 13

That's correct.

And you put a small n because --

Because that T was interpreted by the software but

16 the sample was actually a mixture and there was another

17 underlying T, so it would be inappropriate to leave that

18 labeled as aT. 19 Q Under 16304, which is the next column of data, same

20 thing? Exact same.

Q So let's go down to HVII, which is the next two

rows on hi s summary. He has an issue wi th Spot No. 152.

Tell us why there was nothing noted in the summary

25 report, which is Page 141 of Exhibi t 28. BETTY TATE, 3101 TOWNBLUFF DR., #923, PLANO, TX. 972-596-9442

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EYIDENTIARY HEARING, VOL. 111 11~18-05

WellJ once again, we include all the locations

2 where the sample of interest varies from the Anderson

3 reference sequencing. However, if we cannot interpret 4 the sample, we do not include that location, even if it calls it as a clear C, 5 comes up~ - even if the software

6 there's no doubt about C, we can't use that information,

7 so it's not included on the report.

8 Q So if we're looking at the summary under Spot 152 9 of the sequence file data, he says that the computer

10 called a C for llD-2, so let's look at Page 196 of 11 Respondent's Exhibit 28. 12

Okay.

Where would you find - - I think we've belabored

14 this -- it's computer No. 80, Spot 152, isn't it? 15

That is corr.ect.

Tell us again how you knew that the computer was

17 not accurate in calling itaC at that location.

ii l

Well, let me just say that the computer may have

19 been accurate in calling it a C at that location. 20

Okay.

The problem is it's a mixed sample, so it is making

22 mistakes in other areas. So as a whole, this

uninterpretable.

profile is It's possible that it's calling a C'

24 correctly, even though the actual sample is not a C, but 25 that is something £rom the computer (inaudible). BETTY TATE, 3101 TOWNBLUFF DR., #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, YOLo 111 11-18-05

670

1 Whatever made the mixture - - a contaminate or another

2 contributor to the sample. 3

Wel I, let's talk about that for a second. We're

4 talking about a hair. I can understand how blood can blood . How can a hair be a

5 get mixed with other

6 mixture? 7

Well, I can tell you that when we process hairs you

8 run into a variety of different problems. Oftentimes 9 hairs are fixed on microscope slides and they have

10 chemicals on them, which are very eticky and nasty and 11 difficult to clean off. In this instance they were not. hairs . However, they were in a packet

12 They were loose

wi th blood.

I don't mean of pool of blood, I mean there

14 was dried blood present.

15 During the process - ~ during the extraction of 16 the mitochondrial DNA, we make every attempt to strip

17 away basically the outside layer of the hair to get rid it ' s just 18 of any contaminants that might be present, but

19 with -- it's called Terq-e-zyme, it's basically a 20 detergent that has an enzyme

that chews away the outside

21 layer. WeIli sometime we get a very clean profile - - in

22 most instances we get a very clean prof ile of the hair; 23 however, sometimesi for whatever reason, we get

24 carry-over of the contaminant. 25

Is there anything unique about hair that makes it

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EVIDENTIARY HEARING, VOL. 111 11-18-05

1 more likely to have a mixture or be diff icul t to clean 2 thoroughly? A

Well, the surfaces of hair are basically scaly, and

4 those scales can actually trap material that- - that's 5 one of the reasons why it's difficult to clean. Also 6 hair is often treated with cleaning products ,hair gelJ

7 a variety of things, which can impact the surface of the

8 hair and add layers of sticky-like chemicals to the

9 outside of the hair, which makes it diffictilt to clean. 10

So let's talk then about Spot No. 198 on his

11 summary document, and that is, again, not reported in 12 the report. Was that also not reported in the summary 13 report because it didn't differ from the Anderson

14 sequence? No, that one was not reported because in this

sample it came with N's and T' s.

It did not give any

17 clean profile of any sort. L,

So the hair itself showed up as two capital N's and

19 a T? 20

That's correct.

How come in some places there's two letters? For

22 example, when we were looking at spot

16296 under HVI,

23 the sequence file data for 11D-2 was one capital Nand

24 one capi tal T.

2 5 A Rig ht . BETTY TATE, 3101 TOWNBLUFF DR., #923, PLANO, TX. 972-596-9442

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EVIDENTIARY HEARING, VOL. 111 11-18-05

1 Q But then when we were looking at spot 198 there's 2 two capital N's and a capital T. 3

Well, 198 is one of those various

remember, we

will , you know, A

4 design the primers so that they

5 forward, A reverse, B forward, B reverse, and they

6 overlap somewhat in the middle. This is an area where 7 part of the sequence data from one set of those primers 8 overlapped wi th part of the sequence data on the other

9 sets of primers, so that we got three data points; three

10 data points with that sample.

11 Q And can you see that on Page 196 of Respondent's 12 28? 13

Yes.

If you go to the

position marked 198 and you

14 look at the top two lines numbered 1 and 2, you'll see

15 that there's 16

Hold on one second.

I don't know if it's marked on

17 everybody's copy, so can you tell us where on Page 196 18 it is, or Judge, is yours marked 198? THE COURT: Well, I marked it 198 when Dr.

20 Shields testified. MS. aDEN: Okay, good. Never mind.

22 A So five base pairs before the 130. 23 Q (By Ms. aden) So tell us how you know that there

24 were three results there? 25

Well, we have two resul ts from the A primers, the A

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EVIDENTIARY HEARING, VOL. 111 11-18-05

1 forward and the A reverse, and those are both N -2

And that tells you inconclusive?

Inconclusive; can't interpret the data. ..And then

4 we have one from the B-R, the B reverse primer. You can 5 just look at it and see there's three data points for

6 that one location. 7

Okay.

i'd like to talk to you last about

8 Plaintiff's summary Exhibit 76, 309.1 and 315.1. 9

Okay.

Would we also be able to see the data from testing

11 hair 11D-2 on Page 196? 12

Yes.

Go ahead and tell the court where on Page 196 you

14 would see the data for 309.1 and 315.1. 15

It is the bottom line of samples and you'll see a

16 240 at the very last location on the page, far right. 17 It's two over from that there's a T there, and if you l

1~ see it in B - forward and B - reverse, there's a T in both

19 of those locations. That's 309.1. ~

THE COURT:

I don't see the B-reverse. Are

21 there three? THE WITNESS: That's correct - - no, no, I'm

23 sorry, there's just two of them. Well, there's three' 24 lines there but one is the consensus

computer.

generated by the If you'd like, Your Honor, I can show you.

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EVIDENTIARY HEARING, VOL. 111 11-18-05

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1 I apologi ze - I know this (inaudible)..

2 Q (By Ms. aden) On Plaintiff's Exhibit 76, under 3 309.1 for 11D-2, Dr. Shields put a dash. what does that

4 me an ? 5

I'm unsure as to what he means by that.

Let me ask you, do you see 315.1 on Page 196?

It/s not on 196. It should be on 197.

Okay.

And there's only the one i ine there so it's

10 actually four over from the first C in that stretch of 11 four C's, so if B-forward and B-reverse -- it gave a C

12 in both instances. 13

If you wanted to know what

Sample 27, or the

14 defendant's sample had at those two locations, where 15 would you look? Would it be around Page 176?

16 A It would be. I believe the suspect in this case -17 I have question marks there. I believe he has an issue 18 in the ~ - what's called the C structure, which ~s that

19 area right around that location, starting at about --

20 Q Wha t page are you looking at? 21 A I'm looking at 196, so look ut the bottom line 22 where the machine number is 230, and you see where it

2 3 s tar t s wit haC and the r e 's a long s t r e t c h 0 f s eve n C' s , 24 and there's that T, and then there's two more C' s J and

25 then you go to the next page and there's four more C' s. BETTY TATE, 3101 TOWNBLUFF DR., #923, PLANO, TX. 972-596-9442

675 EVIDENTIARY HEARING, VOL. 111 11-18-05 in a rowJ there's ten CJ s, a T, and then 6 1 Those are all

2 C' s . That's commonly referred to as the C stretch vary in length and some people region. Some people

4 don't have that T that's in there. 5 So when you try and sequence through that

6 region you basically get uninterpretable data. And I 7 believe that's what happened wi th Mr. Skinner. So can those results at 309.1 or 315.1 be used to

9 conclusively include or exclude? 10

WelL., I go back again to you can't interpret this

11 prof i Ie because it's a mixed prof i le . 12

changing track here, do we Q

Do we know _ _ totally

13 know if nuclear DNA testing and mitochondrial DNA 14 testing were both done on the same hair out of the bag 15 of hairs you previously described when we call it 11D-2? 16

No, we don't.

Why is that relevant?

Well, ideally and the way that it would be done now

, iJ. :

19 would be if your going to do mitochondrial -- I'm sorry, 20 if you're going to do nuclear DNA testing on hair, you

21 normally look for either something on the outside of the you look at the hair 2 2 hair, like semen fluid or blood, or

23 shaft _ -the hair root - - the fissure from the root. Now 24 if you did that, ideally the appropriate thing to do

25 would be to take that hair shaft, remaining hair shaft, BETTY TATE, 3101 TOWNBLUFF DR., #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. 111 11 - 18 - 0 5

676

1 that you can either rinse clean or (inaudible), and you 2 would set that aside and do another container, separate

3 from the other hairs that you've collected.

4 Unfortunately, that was not done in this case.

5 Q Was that potentially because the nuclear DNA 6 testing was done for trial in 1995 and the mitochondrial

7 testing was done six years later by the state?

8 A No, the nuclear testing for the trial was done -9 well, I've looked at it so I don't know exactly what 10 they did, but it was done long before that occurred. what actually happened there was the That actually 12 samples had been submitted to our lab for STR analyses, 13 and so some of that work had been done, and then a

14 request came to do mitochondrial sequencing on the hairs

15 that were in that 16

In that bag?

In that bag.

I f you' i i turn to Page 29 in Respondent's Exhibi t

19 28. 20

Yes.

Is that the bag of hair, or a photograph of the bag

22 of hair, we're talking about?

Yes, it i.s. 24 Q I do know that as I go through the results when you

25 look at - - now I'm making you flip pages again - - go BETTY TATE, 3101 TOWNBLUFF DR., #923, PLANO, TX. 972-596-9442

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EVIDENTIARY HEARING, VOL. 111 11-18-05

1 back to Page 141, which is the mitochondrial DNA, the

2 actual report. 3 A Yes. 4 Q Under evidence received the first item is Hair No. 5 10, or Item No. 010.

Yes.

And at the bottom of that page it says it's

8 inconclusive all the way across for that hair. 9

That's correct.

But when ou go through the body of Respondent's 28

11 I don't see any pages showing the letters for the

12 testing was Pair No. 10. Can you tell us why that is? 13

Yes.

was testedJ however, it gave no data, so

14 there was no printout generated. 15

And when you say "no data," would it have shown up

16 at all as any letter? Would it have shown up with all

17 N's? t

A string of N' s.

Any reason why you didn't print that out?

At the time we just weren't doing that.

now they probably would.

I think

I'm not entirely sure what

22 they're doing right now. 23

You advise defense attorneys on a regular basis

24 about cases involving DNA testing; is that right? 25

BETTY TATE, 3101

I do.

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EVIDENTIARY HEARING, VOL. 111 11-18-05

678

Have you ever worked for the innocence proj ect?

I have.

You did not advise the defense attorneys in this

4 case; is that correct? 5 A I was never contacted by the defense attorneys in

6 this case. 7 Q What is your advice when a defense attorney comes 8 and asks you if they should retest or if they should

9 test additional items? 10

Well, I think it depends on the circumstances and

11 that's usually what I tell them. It essentially goes 12 along with the line of the logic that Dr. Thompson

13 brought up yesterday. You know, if it can't hurt, go 14 ahead and test it. So thatl s normally my advice.

15 Q And what would your advice be if it could hurt but 16 other results that didn't hurt wouldn't be of any help?

17 A Well, I normally say if there's a potential for it 18 to come back and be difficult for their client ,but you

19 c-o-n-s-i-d-e-r it carefully whether or not to test it' 20 because it has been my experience that it can oftent.imes 21 be introduced, despite their desire for not doing DNA 23

testing. Q You wrote a report in response to Mr. Shield's

affidavit; is that right?

I did.

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EVIDENTIARY HEARING, VOL. 111 11-18-05 1

679

And do you think that would be helpful to the court

2 because it has all the information that you've just

3 discussed in one place? A

I donJ t think that's aii the information but it

5 certainly has much of the information. 6

A good start?

Absolutely.

MS. aDEN: May I approach, Your Honor?

THE COURT: You may.

(By Ms. Oden)

I'm showing you Respondent's 25. Is J

11 that the report that you wrote in this case? It's the affidavit.

It is.

The affidavit, I'm sorry.

MS. aDEN: Your Honor, we've move to admit

1 15 Respondent's 25, please.

16 MR. ROBINSON: Your Honor, I have no obj ection

17 as long as she has no obj ection to our introducing "

l~t Plaintiff's Exhibit 29, Dr. Shield's affidavit. 19

MS. aDEN: That 1 s fine.

THE COURT: Both Plaintiff's 29 and

21 Respondent's 25 are admitted. 22

(By Ms. aden)

I guess just one last question,

23 please. Dr. Shields said he could not absolutely 24 exclude Mr. Skinner but that he would exclude Twila 25 Busby from the hair, 1 ID- 2. Why did you not come to the BETTY TATE, 3101 TOWNBLUFF DR., #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, YOLo 111 11-18-05

680

1 same conclusion? 2

Once again, it was a mixed profile and I was not

3 going to interpret that data. 4

MS. aDEN: No other questions, Your Honor.

THE COURT: Any re-direct? Any re-cross?

MR. ROBINSON: Yes, Your Honor.

CROSS EXAMINATION

10 BY MR. ROBINSON:

11 Q Good morning, Dr. Watson. Actually Mr. Watson, I'm 12 sorry. ThatJs one of the questions I was going to ask

13 you. Youlre still working on your ph.D; is that right? 14

Yes.

You've been working on it quite a while.

16 A I have to work full time on my job, and then I work 17 part-time on my Ph.D. 18 Q And you actually started on your Ph.D in 1999, so 19 you've been working on it for six years? 20

I have.

Are you currently enrolled in school?

I am.

You are. What school?

University of North Texas.

You've reviewed Plaintiff's Exhibit 76, which is

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1 Dr. Shields' summary? 2

Yes, I have.

Do you have any quarrel wi th his - - the accuracy of

4 his transposing data from Plaintiff's Exhibit 28 to 76? 5

No.

Let's go - - well, before I refer to that, let me

ask you something else.

110-2 is the hair we've been

8 focus ing on here. You' i i agree with me that there can

9 only be one contributor to a hair; is that correct? You

10 can't have a single hair grow out of the head of two 11 different people? 12

That's correct.

So if you isolate the hair .itself there can only be

14 one person at tributable to that hair? 15

There can only be one person that could grow that

16 hair. 17

And so if you get a mixture result, then you get

is that mixture result because that hair has been

19 contaminated wi th some other biological material; is .

that correct?

That's correct..

And for example, if there were saliva from one

23 individual that was on the hair of a different 24 individual and you put that hair through a DNA analysis

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EVIDENTIARY HEARING, VOL. 111 11-18-05

1 then you might get a mixture resul t i is that correct? 2

That is correct.

3 Q But steps are taken in the laboratory to try to 4 eliminate the possibility of a mixture by having

the

5 sample that you're trying to sample contaminated by some

6 other DNA material, correct? 7

Absolutely.

8 Q So if you had, for example, saliva on hair, or 9 blood on hair, if you were successful in your cleansing

10 process, you would have eliminated that material by the 11 time you run the hair itself through the mitochondrial

12 sequence, or have I used the right term? 13

That's correct.

Now you were the person I take it who was

15 responsible for doing the actual testing in this 16 particular case, of the mi tochondrial?

17 A I was responsible at the time for supervising the 18 area, which included in many instances and in this

19 instance actually doing parts of the testing. But I 20 didn' t necessarily do all of the steps involved in th€

21 process. 22

But you were the person who was responsible for it?

Yes, I was the supervisor of the mitochondrial

24 laboratory. 25

And so you would have been responsible for the

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1 cleansing of the hair before it was put through the

2 analysis? A

That would have been whoever extracted the hair.

4 mean the process is the same, regardless of whether or

5 not I do it or someone else does it. 6

What do you mean by extracted the hair? Extracted

7 it from what? A

Extracted the mitochondrial DNA from the hair

9 shaft. The hair shaft itself, there's mitochondrial DNA in there, but it is surrounded by sort of a tough

11 protein, mixed up with the hair, and you've got to

12 remove all that, sO to do that you actually dissolve the

13 hair in a process that we refer to as extraction.

14 Part of that process is trying to clean the 15 outside of the hairs as much as you can, removing the

16 potential secondary debris. 17

Well, let's see if I understand. Do you take the

18~ hair strand initially and try to cleanse it of any 19 extraneous material that might be on it? Yes. Before you actually dissolve the proteins you A 20 21 try and clean away, strip away anything that is on the

22 outside of the hair. 23

And I take it you use some kind of sol vents or

24 concentrate of some kind that's specifically designed to 25 do that, and you do it as best as is physically possibly BETTY TATE, 3101 TOWNBLUFF DR., #923, PLANO, TX. 972-596-9442

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1 it can be done?

Yes.

We actually use a product called Tergezones

detergent.

trying to - - now you're going through what we cal i the

It's an enzymatic detergent.

Now after you've done that do you - - and how you're

6 extraction processi which is to break away all of the 7 surrounding protein and so on, and extract the material 8

that youl re actually going to test.

I s there a further

9 cleansing process that goes on there?

10 A Well, you purify it. Once you break down the 11 proteins, you purify away the proteins with what's 12 called an organic extraction. 13

I'm not sure you answered my question.

I'm asking

14 whether there's a further cleansing process that goes on 15

there.

Maybe you answered it and I don' t understand

16 you. 17

Yes.

All right. Now, you run this hair through a

19 sequencer that produces electronic results, correct? 20

That is correct.

And you showed us some of those electronic results

22 on the screen up here. You showed us - - not in this 23 case but you showed us a sample apparently from another

24 case of some electronic results? 25

Tha t' s correct.

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And the curvy lines, different colored lines?

Yes.

Those weren' t from this case?

No.

You were just using that as a hypothetical example?

It was part of the presentation that I had.

Now, the electronic data that produces the wavy

8 lines, that's called eLectropherograms? 9

Yes, those are electropherograms.

And electropherograms, I take it, were produced in

11 your analysis in this case? 12

They were.

Before I get into that, let me ask you a question

14 here. 15 You've done a lot of - - well, you did the 16 analysis in this case back in 2001i is that correct? 17

That's correct.

So about - - that's about what, five years ago.

1~~

19 take it you've done a lot of DNA analysis since then. '

20 Youl ve look at a lot of results and worked on many othe~-

21 cases besides this one? 22

Nuclear DNA cases, yes.

Nuclear DNA cases. Have you done any other mitochondrial DNA cases since then?

I might have reviewed one or two since then, but I

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haven't actually done any mitochondrial analysis since

then.

Q So this is the last - - toward the end of your

experience in doing mi tochondrial testing?

A That's correct.

Q Well, in any event it was five years ago, and the

question I want to really get to is when you came here

to testify today I take it you were in not much better

position than Dr. Shields was, and that is, you have the

report that had been produced, you had the discovery

materials that we obtained from GeneScreen in Dallas on

discovery in this case, which is Plaintiff's Exhibit 28.

You had those two materials, right?

A Yes, I did.

connection with this case before you came here to give

your testimony?

A I did not.

Q You didn' t have the underlying electronic data, the

electropherograms?

A I did not.

Q And would I be correct in assuming that you don't

have much, if any, independent memory of actually doing

this testing that you could rely upon so that all you

had to rely upon was essentially the same thing Dr.

J F

Okay.

You didn't have anything else to look at in

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1 Shields was given? I have a vague recollection of the case but I would

say your description is pretty accurate.

I don i t

4 remember the specifics of the testing that went on at

5 that time. 6

Now let's talk about this electronic data. You say

7 that -- well, let me ask you, when were you first 8 contacted that you would come and testify in this case? A

To be honest, I don't recall.

It would have been

10 bye-mail maybe -11

I'm just order of magnitude

Oh, several months ago.

Several months ago? That's when you were asked to

14 testify? 15

I was told that I might be needed to testify, yes.

The Attorney General's Office - - somebody from the

17 At torney General's Off ice contacted you? l,.

That's correct.

So you'd known for several months the possibility'

20 you might come to testify? 21

I was aware there was a possibility, yes, sir.

And in that period of time did you make any effort

23 to -- well, first of all, at that point in time when you

24 were first notified, were you supplied by the Attorney

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688

Perhaps a month and

I believe that occurred later.

a hal f, maybe two months ago.

data that Dr. Shields has had?

A Probably.

Q And have you made any effort from the period of

time you were first contacted that you might testify

here, have you made any effort to try to obtain and look

at the underlying electropherograms?

Okay.

So for a couple of months you had the same

A Yes, I did.

Q And when did you do that?

A I did that Thursday of last week.

Q And was that in response to a request from somebody

from the At torney General's Of f ice?

A Yes, it was.

Q And prior to that time you had made no effort to

look at the underlying data?

attempted to look at

i I'

~( 18

A Prior to that time I had not

the underlying data.

Q Before you were contacted last Thursday had you

intended to come here and testify without having looked

at the underlying data?

say the report and the file. That was sufficient

mind.

I had the report. That was su£ficient.

I should in my

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EVIDENTIARY HEARING, VOL. 111 11-18-05 1

When you were contacted last Thursday what did you

2 do then? Well, first of all, what was the comment? 3 What did they ask you to do, if anything? A

I believe what precipitated the attempt to get the

5 information was a question about Sample 10.

That would be hair No. 10, 010?

010, yes.

Gi ve me your best recollection as to what was said

9 to you about what they wanted you to do. 10

I believe Ms. Oden told me that you had not

11 received any data related to Sample No. 10, and wanted 12 to know whether or not I could get that data together

13 and provide it. 14

Did she tell you that we had been trying to get

15 this data for several months? to get

Sample No. 10 for several months, no.

1~"

Q Did she tell you about our trying to get the data

for any other samples for several months?

She did not tell me that you had been trying

I was aware from Dr. Shields' affidavit that y' all...

21 had had problems opening files, I believe, but you did 22 not have a response on these things from GeneScreen. 23

By the way, you

work for Orchid Cellmark in

24 Nashvi lle ,and you have since almost the time you did

25 the testing in this case, right? BETTY TATE, 3101 TOWNBLUFF DR., #923, PLANO, TX. 972-596-9442

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690

There was a brief period when I had left our Dallas

2 lab and went to work for a different company called 3 Lifecodes, and Lifecodes was then purchased by Orchid,

4 which was known as GeneScreen at the time. Since that 5 time they have renamed all of their laboratories Orchid.

6 Q Okay, let's see if I understand. When did you go 7 to Lifecodes? 2001 I think you testified.

8 A June of 2001. 9 Q And you did the testing here in January - - December 10 or January of 2001, so shortly after you did this 11 testing you went to Lifecodes? 12

Yes.

And then Lifecodes - ~ and that was in Nashville?

Yes, it was in Nashville.

15 Q And Lifecodes was then acquired by Orchid Cellmark?

16 A Well, the company that owned Lifecodes was 17 purchased by Orchid Cellmark.

18 Q Well, today you work for the same company that is 19 now the company that also owns GeneScreen in Dallas, or

20 whatever you call iti is that correct? A That's correct. 21 22 Q So when you inquired of Dal las last Thursday about

23 data, you were inquiring of a different office but the 24 same company, Orchid? 25

That's correct.

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Now, what did you learn when you inquired as to

2 what happened to the - - what was the status of the

3 underlying electronic data? A

Well, at the time I spoke to the current

5 mitochondrial laboratory supervisor and

requested that

6 he send me all electronic data that he had related to 7 this case, and a copy of the original analysis software,

8 and I found that they would have some difficulty doing

9 that as they were literally right in the middle of 10 moving to a new facility. 11

Well, wasn't it more than some difficulty? Had

12 they produced it at al I? 13

Well, he said he might be able to get it by Monday

14 of this week, and as of Monday of this week, or actually

15 as of today, I have not yet received it. 16

Now, have you ever been told that GeneScreen in

17 Dallas is incapable of actually reading their own rr

l' electropherogram data for this particular case? 19

I have not.

You've never been told that they don' t currently

21 possess the computer program necessary to read that 22 data? 23

If I've been told that, I'm not aware of that.

24 According to their DNA -- the mitochondrial lab 25 supervisor, that's not correct. They do have the BETTY TATE, 3101 TOWNBLUFF DR., #923, PLANO, TX. 972-596-9442

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EVIDENTIARY HEARING, VOL. 111 11~18-05

1 softwarei it's just no longer installed or in use. 2

Okay.

So as you come here to testify today, you

3 don' t have the electronic data and you have not seen the ,:,

4 electronic data underlying Plaintiff's Exhibit 28? A

Only the electronic data included in the printed

6 material that was provided. 7

I'm sorry, that's right, and you testified earlier

8 that the printed material is also generated by a

9 computer, correct? 10

It is.

Except to the extent that you in some places went

12 in and changed the computer result based upon your 13 analysis of the underlying electropherogram data? 14

That's correct.

Okay. Now, I would like to call your attention to

16 Plaintiff's Exhibit 28, Page 196. 17

Okay.

And let's go back to the well worn column 150 152 , which is as I understand right over the"

19 base pair

20 computer generated number 80 in the second row acroSs~

21 And you testified on direct that -- well, first of all, 22 let's just see what this data shows. The computer says 23 that there's a difference from Anderson there, doesn't

24 it? 25

It does.

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693

And where there is a difference from Anderson you

2 have a little star there? 3

Yes.

The computer puts that star there?

It does.

So the computer said there's a difference from

7 Anderson. 8

It does.

And had you not called this hair inconclusive, and

10 instead had reported some results for this hair I1D-2, I 11 take it then, on your ultimate report, which we've seen, 1

you would have had a column for base pair 152, HVII?

If I had not called this hair inconclusive, there J

14 would be a column in the printout, yes. 15

So the reason there's no column there for that is

16 because of this one particular hair you're having called 17 it inconclusive. t,.

Tha t' s correct.

All right. Now, let's go back to Page 20 of

20 Plaintiff's Exhibit 28. You were shown this page by Ms. .....

21 Oden. This is the page that has the telephone report 22 that's called a Call Log of a telephone conversation I'm

23 focused on one in the middle of the page here, 24 12-22-2000. Mr. Watson, is that your handwriting? 25

The second synopsis of the conversation, yes, it

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1 is. 2

THE COURT: Wha t page?

MR. ROB INSON: We're on Page 20, Your Honor.

4 20 of Exhibit 28. 5

(By Mr. Robinson) There you said, flToldJohn." I

6 assume you mean John Mann. 7

Yes.

"Told John that 11D-2 was consistent with suspect,

9 but partial would require resequencing." Am I reading

10 that right? That's correct. "But did not expect change. Told no profiles 12 Q 13 inconsistent with either victim or suspect." That's correct. A 14

15 Q Now on that last line where you said there were no that 16 profiles inconsistent with victim or suspect, would

17 include hair No. 010, an inclusive result? 18

An exclusive result doesn't make it inconsistent

19 with either of them. There's no interpretation 20 (inaudible) . 21

But 010 would have been one of the profiles i i£ you

22 use the term profile, that would have been included in

23 your description? 24

Tha t ' s correct.

All right. Now, is there any way

to tell from

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695

1 these documents -- well, maybe I'd better ask this

2 question first. 3 Toward the back of this exhibit - - back of intimately familiar with,

4 these pages wel re becoming

5 wi th the sequencing data, we have pages that relate to

6 11D-2 and they are from 194, 95, 961 97, I believe. Do 7 these pages reflect the entirety of all of the sequences

8 you ran from the beginning of the time you began testing

9 to the end? 10

They should, yes. So if you

said that you have -- if you reported to

12 Mr. Mann that you had partial sequencing done, is there

13 any way for us to tell what part of this sequencing had 14 been done prior to your telephone conversation and part 15 of it was done after your telephone conversation? 16

We might be able to tell from when the samples were

17 amped. There are amplification sheets and there are l, 18 sequencing sheets that have dates on them. ,We might be 19 able to tell from that. /

Would those pages be somewhere around 161 or 163?

Yes.

162, 163?

I 1

Yes.

So maybe i£ we kind of piece together those pages,

25 we might be able to tell what was run before and what BETTY TATE, 3101 TOWNBLUFF DR., #923, PLANO, TX. 972-596-9442

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EVIDENTIARY HEARING, VOL. i11 l1-iS-05 1

was run after.

I see, for example, that 163 has the

2 date of 12-18-2000 so that would have been just two days

3 before you had your phone call with Mr. Mann, correct? 4

I'm sorry, which sheet or page number --

I'm sorry, I'm on 163.

Oh, yeah, sorry. Yeah, that would have been a

7 couple of days before.

I ' m reading this right,

8 Q Then 164 would be - - if

9 that would be January 5th, 2001? 10

That's correct.

So that would have been run afterwards.

That would

have been run afterwards. to take the time to try

13 Q Okay. Well, I'm not going

14 to sort this out now, but - - so we should be able to go

15 back and figure out which was run - - which of those four

this

16 pages relating to iiD~2 were run before or after

17 phone call? 18

We should be able to, sure.

Now, you testified earlier, I believe, that you

20 consider it now a mistake to have told Mr. Mann what you

21 told him on the telephone. 22

That's correct.

He called you it looks likei is that right?

I actually called him but I believe it was in

25 response to a call from him. BETTY TATE, 3101 TOWNBLUFF DR., #923,

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EVIDENTIARY HEARING1 VOL. 111 11-18-05 But at the time you - - after this telephone

conversation did you

Mr. Mann was now expecting

3 would it be fair to say that Mr. Mann was now expect ing

4 that you were going to issue an alternate report that 5 called this hair to be a hair that was consistent with

6 Mr. Skinner's profile? 7 A I wouldn' t speculate what Mr. Mann was expect ing.

8 Q Are you aware that within hours, I believe, after 9 this telephone conversation, he called the newspaper and

10 said that GeneScreen had been in fact -11

MS. ODEN: Obj ect ion, Your Honor, hearsay.

THE COURT: Sustained.

(By Mr. Robinson) All right. NoW let's go to your

14 calling this hair 11D- 2 a mixture. Am I correct that

15 you are testifying here today that you called it a 16 mixture because you found a large number of instances

17 where the data indicated that the results were r

~ inconclusive? In other words, you found a number òf N's .1'tr

19 on the -- in the results? 20

Well, it's not just the N's.

It's actually we werê

21 trying to get a result. 22

But we don't have the benefit of the electronic

23 data today, so we 24

I haven' t seen it.

You haven't see it, but am I correct that

between

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698

1 the combination of the printed data we have and the

2 electronic data, you called it a mixture because you 3 have a - - you concluded that there were a number of

4 instances in which there were inconclusive results 5 reported in the testing process by the computer that

6 were inconc Ius ive, or there was no resul t? 7

There were a number of locations that the computer

8 could not interpret, and that was part of what led me to

9 conclude that this was a mixed sample. 10

And the other part was what?

Well the entry doesn' t say mixed or not mixed.

12 just gives data, but part of the decision in 13 interpreting it that way was made by the analyst looking and determined how many

14 at this. i looked at the data

15 times, whether or not there were locations that the 16 instrument could interpret, if it felt where there were

17 underlying peaks, but it called one and the other of the 18

two peaks.

I relied on those to determine whether or

19 not it was a mixture too.

20 So it's a combination of what the instrument 21 could do and what it couldn' t do, and what the data

22 itself said. 23

I think I understand but just let me make sure I i m

24 sure on this. You relied on what the computer told you

25 the resul ts were and then you also went into those BETTY TATE, 3101 TOWNBLUFF DR., #923, PLANO, TX. 972-596-9442

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EVIDENTIARY HEARING, VOL. 111 11-18-05

1 results, you viewed them personally, and you also made as to what the result should be and

2 your own adjustments

3 whether or not the computer was calling it right or

4 wrong. Am I right so far? 5

Tha t' s correct.

And then it was on the

basis of after having looked

7 at what the computer saidi after having determined 8 yourself what the right result should be, you then 9 concluded that there were enough base pairs where the 10 results were - - where there were recorded or observed by

11 you inconclusive results that it should be called a

12 mixture. 13

That's correct.

Is there some rule of thumb or point at which

15 you've got now so many base pairs with inconclusive

16 results we call it a mixture, or is that just a judgment

17 call? 'I'

1~:

not indicate this

I should point out that it does

19 Is an issue I don' t believei in the report. That~ s mi 20 conclusion. What it indicates in the report is that's 21 inconclusive. My ultimate interpretation of the data is 22 that it's inclusive because it was a mixture. That's my

23 interpretation. 24

25 itself that you issued

I was going to ask you about that. The report to - ~ that we

were looking at

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EVIDENTIARY HEARING, VOL. 111 11-18-05

1 earlier that you issued to the district attorney, did

2 not say anything about this being a mixture. 3

You're right.

It just said inconclusive.

That's correct.

And did you see anywhere in Plaintiff's Exhibit 28,

7 which is all the discovery materials, do you see 8 anywhere in there where this hair is called a mixture? 9

No.

10 Q So that's just your interpretation that you never 11 reported anywhere either upon the official report or on 12 the internal documents? 13

Well, once again, it wouldn't be reported on the

14 initial results because as an

inconclusive result, I'm

15 not interpreting it. 16

But you would hold it an inconclusive result

17 because you concluded it was a mixture, didn' t you? 18

And that is the reason that I did.

So there's no reason

why you - - correct me if I' ~

2 0 wrong, but I can' t see a reason why youwouldn' t have

21 told the district attorney that's the reason you called 22

it inconclusive, is because it's a mixture.

Can you

23 think of a reason? 24

Well, I can understand the confusion but the

25 problem is, is if you look at the profile it is BETTY TATE, 3101 TOWNBLUFF DR., #923, PLANO, TX. 972-596-9442

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EVIDENTIARY HEARING, VOL. 111 11-18-05

1 consistent wi th a variety of different things happening,

potentially.

It could be instances of heteroplasmy, it

3 could be a mixture, it could be some chemistry issues 4 associated with the typing itself, or a combination of

5 all of the above. 6

So what is your ultimate conclusion, Mr. Watson?

7 Was ita mixture or not a mixture? A

The ultimate conclusion is that it's inconclusive,

9 and I'm saying, based on my recollection of the case, 10 that I called it inconclusive because it was a mixture,

11 but that is not something we would normally report in the reporti based on mitochondrial

in a mitochondrial

13 report, for the reasons I've stated. There are a 14 variety of reasons why you might get something that looks that way. One of them is that it's a mixture.

16 believe, based on my review of the notes and my

17 recollection of the case was that it was called that j

1 ~ because it was a mixture. 19

Okay.

I'm going to have to now separate between '

20 what you saw in these documents and what you recall of 21 the case. What do you see in the documents that tells

22 you that it's mixture? 23

Well, there's nothing in the documents that says'

24 this is a mixed sample. 2.5

Okay, we're agreed on that.

BETTY TATE, 3101 TOWNBLUFF DR.

So what else do you

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EVIDENTIARY HEARING, VOL. 111 11-18-05

702

1 see in the documents that would lead you to the 2 conclusion that based upon your review of the documents

3 they should be called a mixture?

4 A And my recollection of the data in the case. 5

I'm asking you if you can - - maybe you can' t

but

6 I'm asking you to separ.ate between your recollection and

7 what you see in the data, because all we have is the

8 data. What in the data tells you that this was a

9 mixture? 10

Once again THE COURT: That's already been answered.

12 There's nothing in the data that tells you. 13

THE WITNESS; That's correct.

THE COURT: He's answered that question.

question.

(By Mr. Robinson)

If I could maybe clarify the

I'm not asking you - ~ we have established

17 that there's nothing in the data that actually says this 18

is a mixture, and uses that word.

I'm asking you as a

19 forensic scientist whether in looking at this data you' 20 can conclude from the data alone that it's a mixture. 21

Whether looking at this data, the printouts alone,

22 I would say probably not. 23

All right. So let's go to your memory of the case.

24 What is it in your memory of this particular testing of 25 this sample that leads you to the conclusion that this BETTY TATE, 3101 TOWNBLUFF DR., #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. 111 11-18-05

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1 was a mixture? We I l, I do remember, as I said, the case, general

3 issues relating to this case, but not necessarily 4 (inaudible), but I remember that this profile was 5 consistent with a mixture in my mind, so I didn' t report

6 it as a conclusive result; I couldn' t report it as a

7 conclusive result. 8

me, Your Honor, I need

MR. ROBINSON: Excuse

9 another document... 10

(By Mr. Robinson) Mr. Watson, I' ~ going to --

MR. ROBINSON: May I approach, Your Honor?

THE COURT: You may.

(By Mr. Robinson)

I'm going to hand you a document

14 that's marked as Plaintiff's Exhibit 81, and it's a 15 transcript of some testimony in the case of State of

16 Texas vs. Robert springsteen, if that's the proper 17 pronouncement. r

1i Do you recall your testimony in this case? 19

I do.

And you testified - - this was a case of some

21 notoriety ~n Travis County, Texas, wasnl tit? 22

It was.

Called the Yogurt Shop murders, I believe it was?

Yes.

And you testified in that case as an expert

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

EVIDENTIARY HEARING, VOL. 111 11-18-05

704

1 wi tness MS.. ODEN: Judge, I'm sorry, I'm going to

3 obj ect. What's the relevance? MR. ROBINSON: Well, I think that would become

5 clear, Your Honor.

THE COURT: Overruled.

(By Mr. Robinson) You testified in that case for

8 the defensei isn't that right? 9

I did.

And in that case, somewhat similar to this case,

11 you didn' t do the test ing in that case - - wel I, you did

12 do the testing in this case but in that case you didn' t

13 do the testing? 14

That's correct.

You were interpreting a report produced by another

16 laboratorYi isn' t that right?

17 A That's correct. to be your testi~ony in

18 Q And do you recognize this

19 that case? for 20 A I haven' t looked at it but I'll take your word

21 it. 22

Okay. Are you aware that the district attorney in

23 that case commented on your testimony 24

MS. ODEN: Judge, relevance and hearsay.

THE COURT: Sustained. BETTY TATE, 3101 TOWNBLUFF DR., #923, PLANO, TX. 972 - 5 96 - 9442

EVIDENTIARY HEARING, VOL. 111 11~18-05

705

MR. ROBINSON: Your Honori I'm offering this

2 for impeachment. 3

MS. ODEN: Then improper impeachment.

THE COURT: Any comment from the district

5 attorney about when he's talking about these witnesses'

6 test imony is hearsay. MR. ROBINSON: All right, Your Honor. Thank

you.

I have no further questions on cross.

RE-DIRECT EXAMINATION

12 BY MS. aDEN: 13

Mr. Watson, do any of the questions posed to you by

14 Mr. Robinson change your opinion of your results and

15 your conclusions? 16

No.

Is there anything you'd like to clear up?

No.

II'

1~ 19

MS. ODEN: No other questLons, Judge.

THE COURT: May this wi tness be excused?

MR. ROBINSON: The witness can be excused as

22 far as I'm concerned. 23

MS. ODEN: Yes, Your Honor.

THE COURT: You' ré free to go.

MR. ROBINSON: Your Honor, it i S my BETTY TATE, 3101 TOWNBLUFF DR., #923, PLANO, TX. 972~596-9442

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EVIDENTIARY HEARING, VOL. 111 11-18-05

1 understanding that the state has consented to our 2 calling Dr. Shields back to the stand for rebuttal. 3

4 5

MS. ODEN: That's fine. THE COURT: Are you

ready?

MR. ROBINSON: I'm not, Your Honor.

If I

6 could have five or ten minutes i'd appreciate it. 7

MS. HAYES: Your Honor, we only have one

8 witness that we really need to try to get in before

9 lunch. It's just a recall on John Mann, and so that

10 shouldn' t take very long at all. 11

THE COURT: Is he here?

MS. HAYES: He's here, so after Mr. Shields,

13 if that's the only rebuttal witness, then may we could 14 just sneak Mr. Mann in real quick before lunch, but if

15 not, he'll come back.

16 MR. ROB INSON: I wouldn' t have any problem if

17 you want to put him on now for that matter, and we'll do

18 Shields after. 19

MS. HA YE S : No, we' i I

MR. ROBINSON: Ei ther way.

MS. HAYES: Everything is fresh in Bill's mind

22 so go ahead. I just need a couple minutes ~

MR. ROBINSON:

THE COURT: All right, we'll take five minutes

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

EVIDENTIARY HEARING, VOL. 111 11-18-05

707

(Short Recess)

MR. ROBINSON: Your Honor, I'd like to re-call

3 Dr. William Shields. 4

THE COURT: State your name for the record.

THE WITNESS: William Shields, S-h-i-e-I-d-s.

THE COURT: You understand you're still under

7 oath? 8

THE WITNESS: I do, Your Honor.

THE COURT: All right, proceed.

10 WILLIAM SHIELDS, Called for Rebuttal bv Plaintiff

11 12

RE-DIRECT EXAMINATION

13 14

BY MR. ROBINSON:

Dr. Shields, you were present in the courtroom

17 during Mr. Watson' s testimony? rr

1rJ'

Yes, I was.

Is there anything in his testimony that you

20 consider to be wrong? 21

Yes.

22,

Tell the court what that is.

One thing - - I'm not sure if it's maj or or minor,'

24 but in discussing 309.1, the peak of HVII is always 310.

25 When you have a .1 it's an insertion. It's an extra BETTY TATE, 3101 TOWNBLUFF DR., #923, PLANO, TX. 972-596-9442

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EVIDENTIARY HEARING, VOL. 111 11-18-05

1 base pair set someplace, so 309.1 is always C. 314.1 is

2 always C. There are C stretches there and different in 3 length (inaudible) heteroplasmy, but when therel s not an

4 insertion at 309.1 it's listed as blanki which is the 5 standard for all mitochondrial DNA sequencing, as well

6 as (inaudible).

7 So that was an error. The reason I even 8 (inaudible) have it here is there is no evidence for an

9 extra C in 11D-2. 10

Could you quickly turn to Page 196 in Exhibit 28.

Down in the bottom of that row where it's listed as

12 309 -- it's actually just 2 before the 240. That's 13 actually 310. That T is always ,310. That T is always 14

present in every human being.

I've never seen

15 (inaudible) and I've seen hundreds and hundreds of 16 different people that disappears is actually in HVI,

17 16189. That's the T that disappears so it should get a 18 big stretch of C's, and that screws up the sequencing in

19 a way that we can fix with different primers. But thïs 20 particular one, if you look at 11D-2 you can count it; 21

there's always seven C' s in front of that T.

an 8th, 309.1 is a C.

If there's

If there's a 9th, 309.2 is a C.

23 So it's the addition of theC that makes it 3 09 point.

24 something. Non-repetitive (inaudible). 25

Thank you.

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709

EVIDENTIARY HEARING, VOL. 111 11 -18 ~ 05 That's the only thing that I heard that I would

comment as being flat wrong.

I also believe that the

3 notion that mixtures can' t be interpreted is wrong. 4

Why?

Very simple. May I use the board?

Yes, you may.

Well actually, may I use the overhead?

MS. ODEN: Sure, but I would be careful about

9 writing on the glass. I'm not going ~o write on it.

THE WITNESS:

(Wi tness testifying from overhead and

inaudible) ,

THE WITNESS: Can you interpret that? Yes.

14 Even if that's a mixture, it excludes everybody who

15 doesn't have a C or a T at the locus in quest~on, to use 16 your term the base pair in question (inaudible). So 17

(inaudible)

if there is somebody with a G or A at that

position whether it's a C or a T.

(Inaudible) .

19 there's no di fferent L inaudible) the individuals, they ..

will both either match or not match the Anderson

21 sequence. How can you not interpret that? It's very 22

simple to interpret it and it's just no difference. I

l )

don' t understand (inaudible) shouLdn' t be interpreted;

24 Could I just throw out (inaudible) interpretation 25 guidelines of a mitochondrial lab (inaudible). BETTY TATE, 3101 TOWNBLUFF DR., #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. 111 11-18-05 1

710

(By Mr. Robinson) What is this you're asking to

2 read? It is a protocol from the Serological Research

Institute in California.

(Inaudible) mitochondrial DNA,

5 interpretation, called ßThe interpretation of Sequence II 6 Data.

MS. ODEN: Judge, hearsay.

8 Q (By Mr. Robinson) Excuse me, Your Honor. Is 9 -protocol like this just something that you would

10 typically rely upon in writing your opinions? 11

Absolutely. MR. ROB INSON: So Rule 703, Your Honor, it's

13 being offered as something an expert relies upon in

14 (inaudible) . THE COURT: Would you like to lay your

16 predicate? 17

(By Mr. Robinson)

Dr. Shields, is the protocol

18 that you just referred to, is it a protocol th~t is 19 commonly referred to by experts in the DNA field as 20 something that they would rely upon in forming opinidfis? 21

It's totally relied on by the scientists at the

22 Serological Research Institute that do mitochondrial DNA

23 testing in forensic cases. (Inaudible). I rely on all 24 of the protocols. I read all the ~inaudible) to form a 25 basis for my opinions that mixtures can be interpreted BETTY TATE, 3101 TOWNBLUFF DR., #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. 111 11-18-05

711

1 and it may be difficult to determine if the subject is a 2 mixture or not. MR. ROB INSON: Your Honor, I submi t to you

4 that he has testified that this protocol is of the type 5 reasonable - ~ relied upon by experts in the particular field in forming opinions.

(Inaudible)

THE COURT: Overruled.

MS. ODEN: I f I may, Your Honor, it's my

9 understanding that obviously he can discuss the contents 10 of a document that would not otherwise or - - or a piece

11 of evidence that would not otherwise be admissible, but

12 it still does not entitle him to read the contents into

13 the record. He can discuss what he understands of the 14 protocol but it does not make otherwise obj ectionable

15 hearsay admissible. THE COURT: Well, if he follows this

17 protocol - - what are you offering it for? I i m offering it for the purpose MR. ROB INSON : 1 il' t.

19 of showing that there is a standard protocol in the 20 industry, or in the business, for determining mixtures,21 and that Mr. Watson's conclusions are inconsistent with

22 that protocol. 23

THE COURT: So you're not offering it that

24 this witness uses this protocol? 25

MR. ROBINSON: Yes, I am offering it BETTY TATE, 3101 TOWNBLUFF DR., #923, PLANO, TX. 972-596-9442

712

EVIDENTIARY HEARING, VOL. 111 11-18-05

1 because THE COURT:

If he uses the protocol he can

3 testify as to (inaudible). Honor i if I may, 4 MS. ODEN : Actually, Your

5 that is not an industry wide protocol. That is a 6 private company's document, SERI. That particular lab 7 is a full for-profit lab, just like Orchid Cellmark, or

8 Third Technologies, and that is an in~house document 9 only describing the procedures used by that particular

10 laboratory. It is not an industry standard, nor does 11 this doctor use it in his research because he does not 12 work at that laboratory, nor does he do human forensic

13 DNA analysis.

14 MR. ROBINSON: Your Honor, she's just

15 contradicted the witness. The witness just testified he

16 does. 17 18

THE COURT: Counseli if you

hear it well.

asked it I didn't

I have not heard the witness testify that

19 this protocol is used in the industry in question~ at '

20 least on interpreting mixtures, (inaudible). 21 22 23

MR. ROBINSON:

question, Your Honor.

I believe I asked that

I will ask it again

THE COURT: All right, ask it again.

24 Q (By Mr. Robinson) Is this protocol used in the 25 industry by experts for purposes of determining whether BETTY TATE, 3101 TOWNBLUFF DR., #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. 111 11-18-05

713

1 a particular result or a particular sample is a mixture?

2 A Yes, it is. MS. ODEN: May I take this witness on voir

4 dire? THE COURT: You may.

5 6

VOIR DIRE EXAMINATION

7 8

9 BY MS. ODEN: 10

Doctor, if I understood what Mr. Robinson said a

11 few moments ago in cross examining Mr. Watson, it was 12

that you did not see any mention of the conclusion that

it was a mixture in either Mr.

data that's already been introduced as Respondent's 28 i

i s t hat cor re c t ?

A That's what he asked, yes.

Q Yes. And so when you were forming your opinions in

1~"

this case, you were not basing your opinions on the fact

that Mr. Watson thought it was a mixture?

I was basing my opinions on the data that I saw.

Correct. And you don' t think it's a mixture, do

Watson' s report or in the

22 you not? 23

I do not.

MS. ODEN: Your Honori this witness has just

25 testified that he did not base his opinion in this case BETTY TATE, 3101 TOWNBLUFF DR., #923, PLANO, TX. 972-596-9442

714

EVIDENTIARY HEARING, VOL. 111 11-1,8-05

1 on the guidelines used for interpreting mixtures because

2 in his opinion it is not a mixture, and prior to his 3 testimony today he did not ever know that Mr. Watson was

4 going to say that it was a mixture. Therefore, under 5 703 this guideline is not admissible because it is not 6 something this expert used to base his testimony or his

7 opinion on. MR. ROBINSON: Your Honor, if I may, first of

9 all, I'm not - - I'm sure she didn' t mean to but Ms. Oden

10 has just stated the fact here that Mr. Watson in his 11 affidavit, which was sent to us on November 1st, said

12 that he was going to testify that this was a mixture, 13 and obviously I showed that to Dr. Shields. THE COURT:

14 15

I understand this witness has

testified he didn' t use it in basing his opinion.

16 you have another basis, then offer it. MR. ROBINSON: Yes, Your Honor.

I am about to

opinion on rebuttal of the - ,-

18 ask him his

THE COURT: Tell me your basis for offering'

20 it. MR. ROBINSON: He is about to offer an

22 opinion - - he may not have relied upon it when he gave 23 him opinion -THE COURT: Counsel, here's a simple question.

25 Why are you offering this protocol? BETTY

TATE , 3101 TOWNBLUFFDR., # 923 , PLANO, TX. 972 - 5 96 -9442

EVIDENTIARY HEARING, VOL. 111 11-18-05 MR. ROBINSON:

715

I'm offering it as the basis of

2 his opinion that he is about to give as to why Mr.

3 Watson was wrong about calling this a mixture. THE COURT:

I'll allow it for that purpose.

RE-DIRECT EXAMINATION (Cont'd.)

8 BY MR. ROBINSON: A

(Dr. Shieldsi reading from protocol;)

10 "The possibility of a mixture should be 11 considered when more than one peak occurs in a 12 particular base position, that is not presumed to be due 13 to background noise, messy data,. irregular spacing,

14 heteroplasmyi et cetera. A mixture of mtDNA from two

15 people will show two different peaks in all the base 16 positions where one person's sequence differs from the

17 other. l,

18~

In the final sentence, n interpretations

19 regarding the sources of mixtures should be made very

20 cautiously, if at all. n

21 So all I'm saying about this particular thing 22 is that it, like most other interpretations guidelines,

23 recognizes that there are things that may look a little

24 bi t like mixtures, but they are (inaudible) 25 interpretation, and I didn't just review this one. This BETTY TATE, 3101 TOWNBLUFF DR., #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. 111 il-18-05

716

1 is the one I printed out. I've reviewed many protocols. 2

And all of them allow for interpretation of mixed

3 samples, especially for exclusions. I have nothing further.

MR. ROBINSON:

THE COURT:

MS. ODEN:

THE COURT:

You may step down.

MS. ODEN:

And Your Honor, just because he's

Any re - cross? .

Not of this witness, Your Honor.

9 still here, I would like to call Mr. Watson in response. 10

THE COURT: State your name.

THE WITNESS: Bill Watson.

THE COURT: And you understand you're still

13 under oath? THE WITNESS:

I do.

WILLIAM WATSON, Called for Rebuttal bv Defendant

17 RE-DIRECT EXAMINATION

20 BY MS. ODEN:

21 Q Going back to something that we covered in your 22 cross examination very briefly, what will you do when 23 you leave court in the future with regards to the

24 evidence or the data in this case? 25

Well, I'm still attempting to get the electronic

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717

EVIDENTIARY HEARING, VOL. 111 11-18-05

1 data for my own review. 2

Will you make a copy of whatever youf ind and a

3 copy of the software, if necessary, available to the 4 Attorney General's Office to pass along to the defense

5 in this case as soon as you get that information? A

I'll certainly make the data available.

I'm not

copy of the

7 sure that I'm legally able to provide a

8 software butcerta~nly anything that I get that I can

9 provide, I wi 1 i provide. 10

I wanted to talk to you about your statement that

documents in

11 any data - - was there any data in the

Respondent's 28 to support your conclusion that there

was a mixture.

Is it your opinion that there is or is

14 not data to support your opinion? 15

I believe there is data that will support my

16 conclusion. 17

Can the data that was recorded, for example, a

18~: capital N and a capi tal T, can it be pushed to give' a

19 resul t either as an N or a T by the analyst? 20

Well, you can incorrectly interpret the data in

21 almost any way that you want, so the answer to your

22 question is yes. 23

What does a responsible analyst do in a situation'

24 such as that? 25

Well, you hopefully take the data in its entirety

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EVIDENTIARY HEARING, VOL. 111 11-18-05

1 and not just look at one locus or one base pair, or one

2 anything and make a decision about the entirety of the

3 data. 4

And is that what you did in this case? Did you

5 take the entirety of the data into consideration? 6

I did.

7 Q The guidelines that Dr. Shields

just discussed from

8 the S-E-R-I or SERI laboratory, I believe if I remember

9 the last sentence was if there is indication that it is lOa mixture it should be interpreted very carefully, if at

11 all. 12

Something like that, yes.

Did you follow that guideline when you were

14 interpreting the data in this case? 15

I feel I did.

16 Q Why did you choose to call l1D~2 inclusive instead

17 of very ~arefully interpreting the base pairs? 18

Once again, it's the entirety of the data I felt

19 when there was suff icient data present to determine that 20 that profile was inconclusive. Once I said it was

21 inconclusive, it's inconclusive, and to my 22 interpretation at all locations, regardless of what the

23 software is saying to me. 24

Okay. Well, the example that Dr. Shields

gave we

25 see on the overhead that the DNA sequencing data, BETTY TATE, 3101 TOWNBLUFF DR., #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. 111 11-18-05

719

1 there's a blue peak for C and here's a red peak for T.

2 If you have visually seen that result when you were 3 looking at the electropherograms, why would you not know

4 that that excludes an A or a G? A

It's possible that you could have a mixture of more

6 than just two individuals. You could have another base

7 pair present that is not seen. 8

So for example, if it was hair contaminated with

9 blood and potentially some DNA from the lab, and all

10 three have been amplified, you might only see two of the 11 peaks? 12

That's certainly a possibility.

Is there any way to know when you're looking at two

14 peaks, for example the C and the T together, which line 15 is from the original evidence, the hair that came in the

16 bag, and which one might be lab contaminant?

17 A I do not believe that there was any way you can do tr

1il that. 19

So is it possible then, if you saw for example, a C

20 and a T together, that a third peak which relates to 21 Henry Skinner's DNA, or Twila Busby's DNA, was not

22 visible on the electropherogram? 23

It is possible.

And is

that why you chose to regard them all as

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

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EVIDENTIARY HEARING, VOL. 111 11-18-05 1

A Yes.

MS. ODEN: No other quest ions, Your Honor.

MR. ROBINSON: No questions, Your Honor.

THE COURT: You may step down. Thank you.

You offered - - are those -MS. ODEN: Those are his overheads, Your

Honor. That's why we offered the paper copies. THE COURT: Any obj ection to using the paper

copies?

MR. ROBINSON: No obj ectiùn, Your Honor.

THE COURT: Okay. Call your next witness.

MS. HAYES:

Respondent calls John Mann.

THE COURT:

State your name for the record.

THE WITNESS:

THE COURT:

THE WITNESS:

THE COURT:

t( 18 19

John Mann.

And you have previously testified? I have.

You understand you're still under

oath? THE WITNESS: I do.

20 21 22 23 24

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EVIDENTIARY HEARING, VOL. 111 11-18-05

721

JOHN MANN, Called bv Respondent (Sworn)

1 2

DIRECT EXAMINATION

5 BY MS. HAYES; 6

Mr. Mann, I'm Katherine Hayes with the Attorney

7 General's Office. You formerly served as the District 8 Attorney of Gray County, Texas i is that correct? 9

Yes.

And as part of your - - when you worked as the

11 District Attorney, did you prosecute Mr. Skinner for

12 capital murder? 13

I did.

Prior to just being the District At torney, did you

15 also have experience as a defense attorney? 16

15 years.

And that would be as a criminal defense attorney?

That's right.

when you were the District Attorney of Gray County,

did Mr. Skinner in fact file his first state writ

21 regarding the capi tal crime when you were the DA? recollection, yes.

To the best of my

So you were certainly made aware of allegations

24 raised in the writ back say , 97, , 98, back when you were

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

EVIDENTIARY HEARING, VOL. 111 11-18 - 05 1

722

Right.

2 Q And that wri t - - was that wri t ultimately dismissed 3 as being untimely filed? 4

True.

Now were you still the District Attorney of Gray

6 County in 2000? 7

Yes.

And when did you actually leave off ice as the

9 District Attorney? 10

December 31st of 2000.

2000? THE COURT: December 31st of --

12 13

2000.

(By Ms. Hayes) 2000 or 2001?

THE COURT: 2000.

15 16

2000 . Be ing on the dark s ide for that many years

17 as a prosecutor is something I've tried to forget i so I 18 could be off a year. you actually had sent materiaY

19 Q (By Ms. Hayes) If

20 to GeneScreen for testing back in 2000 -21

Right.

__ that would indicate you're still the DA in 2000.

23 Would that be correct? 24

Yeah.

If the mitochondrial results came back by February

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

EVIDENTIARY HEARING, VOL. 111 11-18-05

723

1 of 2001, were you still the DA in 2001 when that report

2 came in? Apparently I was.

election date was.

I don' t remember what the

I either went out the end of 2000 or

5 2001. 6

Now in your investigation into the case did you

7 ever receive or learn of any medical evidence 8 establishing that Twila Busby had been sexually

9 assaulted? 10

In the investigation of her murder?

Right.

No.

And in fact, didn' t Dr. Peacock - - Dr. Peacock was ì

14 the medical examiner, correct? 15

That's correct.

And Dr. Peacock testified at trial that there was

17 no evidence of sexual assault i is that -!7

1~'

That's my recollection. That's also my

19 recollection of the autopsy protocol. 20

MS. HAYES: May I approach, Your Honor?

THE COURT: You may.

(By Ms. Hayes)

I've handed you Respondent's 27.

23 Can you identify what that document is? 24

It's a copy of Dr. Elizabeth Peacock's autopsy

25 protocol on the body of Twila Busby. BETTY TATE, 3101 TOWNBLUFF DR., #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. 111 11-18-05

724

1 Q Does that appear to be a complete copy of the 2 autopsy protocol, at least of the evidence by page

3 numbering? 4

Yeah, it does.

MS. HAYES: I'd move for the admission of

6 Respondent's 27. 7

MR. OWEN: No objection.

THE COURT: Admitted.

MS. HAYES: And for the court's convenience,

10 that record is also part of the trial record. Some of 11 the exhibits we have are also part of the record and 12 we'll point that out where it's possible. THE COURT:

(By Ms. Hayes)

All right. Would you look at Page 2 of the

15 autopsy protocoli first paragraph? 16

Yes, ma'am.

Is there information in that first paragraph that

18 also backs up the finding that there was no sextial

19 assault? 20

Yes.

Could you explain what that information is for the

22 court? 23

It remarks here that back and buttocks are

24 unremarkable. 25

THE COURT: What about the very last part BETTY TATE, 3101 TOWNBLUFF DR., #923, PLANO, TX. 972-596-9442

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EVIDENTIARY HEARING, VOL. 111 11-18-05

1 saying no trauma to the sexual organs? 2

What paragraph are you referring to?

(By Ms. Hayes)

Tha t' sit.

I think the ~~dge has

4 seen the point. We're good to (inaudible) the autopsy. Let's talk about the DNA testing. There came

6 a time in 2000 that you decided to submit evidence for 7 some additional DNA testing i is that correct?

8 A Yes. 9 Q Did there also come a time when Mr. Skinnerl s 10 attorneys contacted your office about DNA testing? 11

Yes.

Now

not talking about all the specifics

of any

13 contact or things that were necessarily said, do you 14 remember whether there were letters sent to your office 15 from Mr. Skinner's attorneys regarding DNA testing? 16 17

I remember letters, yes.

Now in the material that was sent for DNA testing,

19 did you actually submit or do you remember submitting

19 hair from Twila Busby's right hand? 20

Yes.

Why did you decide to send hair to be tested?

It seems to me - - it's been a long time - - it seems

23 to me that that was the big hue and cry of the day fröm

24 those folks who had gathered around the defendant

25 Skinner. They were complaining about the fact that we BETTY TATE, 3101 TOWNBLUFF DR., #923, PLANO, TX. 972-596-9442

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EVIDENTIARY HEARING, VOL. 111 11-18-05

1 did not supposedly send enough evidence off for DNA

2 testing initially, and there was a big clamor. They 3 wanted to know about this hair and so forth, in spite of

4 all the other evidence that we had, and so I just

5 decided to .send them.

6 Q Now when you said there was a clamor about possibly 7 testing the hair, that wasn't something that actually

8 came from Mr. Skinner's attorneys -9

THE COURT: What's the relevance of all this?

MS. HAYES: Well, Your Honor, we know there's from counsel that suggested that testing

11 correspondence

12 the hair is going to have little evidentiary 13 significance in light of testimony that came out at 14 trial that there's a lot of hair in the house, and so we

15 want to - - we're trying to point out that the whole --

16 well, we'll get to the value of that there shouldn' t 17 really be any further testing ~MR. OWEN: Your Honor, if counsel could

19 identify one of the disputed issues of fact for this 20 hearing, that this evidence is relevant to, that might 21

help the court make a decision.

I still think it's

22 irrelevant. MS. HAYES: Well, the ineffective assistance

23 24 claim about not conducting further DNA

testing and how

25 it's prej udiced the case.. BETTY TATE, 3101 TOWNBLUFF DR., #923, PLANO, TX. 972-596-9442

727

EVIDENTIARY HEARING, VOL. 111 11-18-05

MR. OWEN: Your Honor, I don' t believe this

2 witness has testified he was a party to any discussions

3 among the defense about why to do or not to do DNA

4 testing. THE COURT: Well, I don' t understand how --

6 you know, what the significance of DNA testing in 2001 in 1999 is 7 rules what counsel's decisions on testing was

8 (inaudible) . MS. HAYES: Well actually, Your Honor, there

9 10 is a letter

that we had marked as Respondent's 30 which

11 comes from counsel, from Douglas Robinson, which

12 expressly says that they don' t want the hair tested 13 because they think the hair is going to be of little 14 evidentiary significance, so I think it's important when 15 they're making the argument, or made the argument, that

16 counsel was ineffective -THE COURT:

MS. HAYES: THE COURT:

MS.

HA YE S :

MR.

OWEN:

Respondent's 30.

22 circuit this by saying we don' t have any objection to

23 this letter being admitted. We'll stipulate to its 24 admissibility. 25

THE COURT: Admitted. BETTY TATE, 3101 TOWNBLUFF DR., #923, PLANO, TX. 972-596-9442

728

EVIDENTIARY HEARING, VOL. 111 11-18-05

MS. HAYES: Thank you.

1 2

(By Ms. Hayes)

Regarding - - swi tch gears for a

3 moment. Regarding Andrea Reed, did you ever instruct "

4 Andrea Reed on how to testify at court? 5

Absolutely not.

If there was an allegation made that Bill McMinn

7 supposedly promised he would not subpoena her daughter

8 to testify if Andrea Reed testified as instructed by 9

MR. OWEN: Obj ection, calls for hearsay.

MS. HAYES: Your Honor, it's in the writ.

THE COURT: Let me hear the obj ection and let

12 me rule before you start arguing. I have not heard the 13 end of the question yet. 14

(By Ms. Hayes)

In the writ petition - - you

15 testified previously that you've been aware of all the

16 claims that have been raised in the writ petition. 17

Yes.

Are you aware of a claim that was asserted that you

19 instructed Andrea Reed how to testify? 20

I'm aware of the fact that at the beginning of Mr.

21 Losch's involvement in this case, follow by Mr. 22 Robinson, now Mr. Owen, that I've been accused and be accused at this time of suborning

23 continue to

24 perjury, yes. 25

And have you ever - ~ I'd ask have you ever

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

729

EVIDENTIARY HEARING, VOL. 111 11-18-05 her on how to testify?

1 instructed

Absolutely not. Did you ever - - did you personally ever interview "

4 her before she took the stand? 5

No.

Now, the trial in this case actually occurred in

7 Fort Worth i is that correct? That's right. A 8 9

On a change of venue, correct?

Right.

Were all the state's witnesses and the state

12 attorneys all housed together? 13

Yes.

Where was that? Do you remember?

It was on North Beach Street and I think

at the

16 time the hotel - - I think it was a Holiday Inn. 17 Q Was it located in a good or safe area of town? 1~ A No. £,

19 Q Were there

any events that occurred at the hotel -

20 or - - what do you base your opinion that it was not in a

21 safe area? What do you base that on?

22 A Well, it was a very low socioeconomic part of town. 23

It was a bad part of town.

I t was a loud part of town.

24 People didn' t sleep out there during the night, those

25 people that lived out there around there, and on one BETTY TATE, 3101 TOWNBLUFF DR., #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. 111 11- 1 8 ~ 05

730

1 occasion I remember there was a shooting incident and 2 the police helicopters covered the sky for a good part 3 of the night, and the police covered the grounds of the

4 hotel and surrounding areas for a good part of the

5 night. I t was a very loud place.

6 Q Now did that happen when y' all had already - - did 7 it occur when you were there or did you just hear about

8 it? 9 A I was there. We had picked the jury and it was in 10 the testimony part of the trial. 11

Would you agree or not that perhaps everyone tried

12 to be on guard or be more cautious, especially given the

13 shooting event that had just happened? 14

Absolutely.

Would it be reasonable or unreasonable for officers

It was not a safe part of town.

16 to perhaps instruct witnesses or members of the MR.

OWEN:

THE COURT:

(By Ms. Hayes) MR.

Would you expect

OWEN:

THE COURT:

(By Ms. Hayes)

24 unit have taken to possibly help assure safety of all 25 invol ved. BETTY TATE, 3101 TOWNBLUFF DR., #923, PLANO, TX. 972-596-9442

731

EVIDENTIARY HEARING, VOL. 111 11-18-05 A

Provide protection and security and advice about particular part of

2 not going out after dark in that

3 town. 4

Thank you. Now, I'd like to refer to a couple of

5 comments that were in your affidavit. 6

MS. HAYES: May I approach?

THE COURT: You may.

(By Ms. Hayes) Respondent's 11, Page 2.

paragraph -(Inaudible) inst:¡ucted -THE COURT:

MS. HAYES:

9 the second full

I'm pointing

him to

going to ask questions, but we're okay.

Page 2,

where II m I don' t want

13 him to read it. THE COURT: Just ask the witness the question

15 and then if you need him to refer to the affidavi t, you 16 can do that, but you can' t (inaudible). 17

(By Ms. Hayes)

Don' tread it. Do you remember any

lI'

1j comments in your affidavit that your initial

19 investigation focused on Mr. Skinner in part because it 20 was well known -MR. OWEN: Obj ect ion, leading.

21 22

(By Ms. Hayes)

Let me start over. What was Mr.

23 Skinner's reputation in the community as far as drugs 24 were concerned? 25

You mean in terms of whether it was

good or bad, or

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

EVIDENTIARY HEARING, VOL. 111 11-18-05

732

1 whether he was a drug user? MR. OWEN: Obj ect ion, Your Honor. There has

3 been no foundation laid as to whether this witness has 4 any knowledge of Mr. Skinner's reputat ion in the 5 communi ty for drugs, or drug use, or whatever question

6 she asked. THE COURT i Overruled.

7 8

(By Ms. Hayes)

How about his reputation, whether

9 it was good or bad as a drug user?

10 A He had a reputation - - had a cad reputation for 11 being a drug user. 12

And what kind of details would back up that

13 reputation that you're aware of? 14

Well, reputation is what somebody generally says

15 about you, not specific acts, and it was known among law

16 enforcement that he was a bad drug user, and it was also 17 known among law enforcement that he was a very violent

18 person. 19

What about specific acts that might support him of

20 having a bad reputation as a drug user? 21

The first time I ever -- oh, as a drug user,

specific acts? I can' t recall specific acts. I just 23 know what I heard around the District Attorney's

24 Officer, around the Sheriff's Department about the fact 25 that he was one of

the local druggies . He's hung with

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733

EVIDENTIARY HEARING, VOL. 111 11-18-05

1 the local druggie crowd -MR. OWEN: Obj ection, Your Honor. Asked and

3 answered. This is cumulative.

THE COURT: Overruled.

He's hung wi th the local druggie crowd, and it was

6 a regular drug party down in his part of town where he

7 lived all the time. 8

(By Ms. Hayes) Okay. Does he have

a reputation,

9 good or bad, for drinking? 10

He did.

And what was that reputation?

His reputation was bad as far as drinking.

MR. OWEN: Your Honor, I obj ect . This whole

14 line of questioning is irrelevant. THE COURT: Well, don't lead the witness, but

16 if you're getting to a point, get to it. I don't know

17 whether this has something to do with the point you're ,

1£1 getting at wi ththis witness or not. 19

MS. HAYES: Well, one of the problems wi th ....

hearing, of course, from the telephonic conference, is

21 that there's a witness, Lori Brim, who is not available 22 to testify, and one the agreements was that her 23 affidavit testimony, she said she would come and testify 24 for him being a peaceful and law abiding person, and -25

THE COURT: All right, go ahead. BETTY TATE, 3101 TOWNBLUFF DR., #923, PLANO, TX. 972-596-9442

734

EVIDENTIARY HEARING, VOL. 111 11-18-05 1

MS. HAYES: Just briefly, Your Honor.

MR. ROB INSON: Your Honor, could I be heard

3 for a moment on this? We had - - I said in the telephone

4 conference what it was we were going to call her for and 5 I did not say that she was going to come and testify for going to come and testify that

6 being a - - that she was

and

7 Mr. Skinner was a peaceful

law abiding citizen.

8 Only on the issue of the incident having to do with

9 Codeine use, so if that's all she's going to be

10 testifying to, then this line of questioning is 11 irrelevant. 12

MS. HAYES: If I may, Your Honor. She's

13 offered two affidavits they attached to their writ. The 14 first affidavit talks about the alleged Codeine

15 reaction. The second affidavit talks about if I had 16 only been called I would come and testify about the 17 peaceful and law abiding nature, and in that a£fidavit 18 she tries to act that Harold Comer never, contac~ed her.

19 I planned on impeaching this witness. We don't have her

20 here, we can't impeach - - I knew there was going to hi are here to be 21 some leeway allowed because our witnesses

22 able to refute that for me. 23 MR. ROBINSON: But if she's going to impeach

24 the witness, it has to be on the basis of the testimony 25 she gives, and I have no intention of asking of her to BETTY TATE, 3101 TOWNBLUFF DR., #923, PLANO, TX. 972-596-9442

735

EVIDENTIARY HEARING, VOL. 111 11-18-05

1 confirm as to Skinner's peaceful reputation.

THE COURT: What else - - how much more are you

3 going to ask him about his bad acts? Pretty much goes

4 (inaudible) . MS. HAYES: We can take care of it very

6 quickly, if I may approach aga~n. THE COURT: All right.

7 8

(By Ms. Hayes) Respondent's 34. Do you recognize

9 t he document I've handed you marked Re spondent 's 34?

I do. Yeah, I do.

Would you identify that for the court?

This is what we in our office refer to as the bad

13 acts list. 14

In fact, that's what the document is entitled,

15 isn't it? 16

Yeah.

How many pages of bad

acts do we have listed there?

Five. Mr. And is this a document that was provided to

20 Comer and Mr. Fields in pretrial? 21

Should have been. That was my policy. MS. HAYES: Move for

admission of Respondent's

23 34. 24

MR. OWEN: No obj ection.

THE COURT: Admitted. BETTY TATE, 3101 TOWNBLUFF DR., #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. 111 11-18-05 1

(By Ms. Hayes)

736

with Mr. Skinner's case being a

2 capital murder case, isn't one of the questions the jury

3 is asked to decide whether he's going to present a

4 future danger to society? 5

Yes, ma' am.

In your experience as prosecutor what kind of

7 evidence would the state seek to admi t at punishment 8

MR. OWEN; Obj ection, Your Honor, relevance.

THE COURT: What is the relevance?

10 MS. HAYES: Actually I can get this out 11 through Mr. Comer after lunch. THE COURT: All right.

13 Q (By Ms. Hayes) At trial it Mr. Comer or Mr. Fields 14 had attempted to attack prior convictions that were used 15 against Mr. Skinner at punishment, how would the state

16 have responded? 17

Pen packets most likely, or certified copies of

18 judgments and convictions and sentences. 19

If the --

Plus -- well, go ahead.

I'm sorry. If a pen packet was admitted for

22 unauthorized use of a motor vehicle conviction, that 23 would be typical evidence the state would admit at 24 punishment, correct? 25

Yes.

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737

EVIDENTIARY HEARING, VOL. 111 11-18-05 1

If Mr. Skinner asserted that he had a defense to

2 this UUMV offense, what types of evidence would the

3 state try to find to refute that? A

Bring in the officers that were involved in the

5 case. 6

How about if it involved a guilty plea, could you

7 possibly use the plea transcript? A

You could.

MS. HAYES: Approach?

I don't think that would be necessary if you had a

11 cert i f ied copy of the gui 1 ty plea in open court. THE COURT: You may.

12 13

(By Ms. Hayes)

Respondent 's 32. Concerning the

14 document marked Respondent's 32, can you identify that 15

f or the court?

the 223rd District Court, Gray County, Texas.

This is a statement of facts from Cause No. 4464 in

1 if' appears to be -19

For convenience, if I represented that to be a

20 transcript -21

_ _ a guilty plea transcript of the charge to which

22 Mr. Skinner pled guilty of (inaudible). 23

Would you look at Page 14, starting at Line 15.

Yes, ma' am.

Does it appear to you from reviewing the plea

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

EVIDENTIARY HEARING, VOL. 111 11-18-05

738

1 transcript that Mr. Skinner admitted that - - obviously

2 admi t ted his guil t at that point in the hearing? 3

He did admit his guilt. He admitted that he took a

4 vehicle belonging to a Mr. Pendergrass and that he did

5 not have authority to take it, per the transcript. 6 Q Now if Mr. Skinner sought to admit evidence at the 7 punishment hearing that he did have permission, would 8 you in fact use the plea transcript against him. 9

We could, absolutely.

MS. HAYES: Move for admission of Respondent's

11 32. No objection, Your Honor.

MR. OWEN:

THE COURT:

Admitted.

MS. HAYES:

Approach again, Your Honor?

THE COURT:

You may.

(By Ms. Hayes)

I'm showing you Respondent's 33.

17 Can you just identify that document? 18 A Thi s appears to be a judgment of gui 1 t against 19 Henry Watkins Skinner for aggravated assault on a peac~

20 officer. 21

Now if Mr. Skinner had sought to challenge the

22 underlying facts on this aggravated assault, what kind 23 of evidence would you use against him in punishment? 24

Steve Chance, the arresting officer for one thing.

So are you saying that you would call the officer

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

EVIDENTIARY HEARING, VOL. 111 11-1.8-05

739

1 to testify? 2

Yes, and also Allen Smith, another officer.

So you have law enforcement officers who would be

4 called to testify against Mr. Skinner at punishment; is

5 that correct? 6

One very good officer, yes.

Now, if Mr. Skinner sought to introduce a claim

8 that he had actually attacked the officer in 9 self-defense, if he had taken the stand, what would you

10 have done? Would you be prepared to c~oss examine Mr.

11 Skinner if he actually took the stand? 12

Absolutely. You mean if he had taken the stand and

13 claimed that this incident was self -defense, I probably 14 would have spent 20 or 30 minutes questioning him about

15 body movements and so forth, plus put on the officer to 16 rebut that. Talk to him about the factors of his

17 walking in a staggering manner, and many other things. an opportunity to 1~ Q "

And would you have appreciated

19 question Mr. Skinner on the stand? 20

MR. OWEN: Objection, relevance.

THE COURT: Overruled.

22,

MS. HAYES: No further questions. Did I move

23 for admission - - I move for admission of Respondent's'

24 33. 25

MR. OWEN: No objection. BETTY TATE, 3101 TOWNBLUFF DR., #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. 111 11-18-05 1

THE COURT: Admitted. Any cross?

MR. OWEN: Yes, Your Honor.

740

CROSS EXAMINATION

4 5

6 BY MR. OWEN: 7

Good morning, Mr. Mann.

Good morning.

As I understand your response to one of counsel's

10 last questions with respect to this assault on a police

11 officer (inaudible) case prior conviction of Mr. 12 Skinner's, when she asked you whether had he challenged

13 the underlying facts of that case at punishment you

14 would have brought in the officers to testify?

15 A If he had gotten on the stand and said it didn't 16 happen, I would have put (inaudible) testimony on. 17 Q And did I understand you correctly to say when the

18 two officers 19

You heard me correctly.

-- you said "one very good officer."

That's what I said.

Who was the very good officer?

Allen Smith.

And who was the not so good officer?

Steve Chance.

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741

EVIDENTIARY HEARING, VOL. 111 11-18-05 1

Why was he not so good?

His credibility wasn't acceptable in my off ice.

And what was wrong with his credibility? On what

4 did you base your

MS. HAYES: Obj ect, Your Honor.

It's outside .

6 the scope of cross.

THE COURT: Overruled.

7 8

(By Mr. Owen) On what did

When you're a prosecutor and you

you base that opinion?

work with the

10 police-11

MS. HAYES: Obj ect ion, re levance.

MR. OWEN:

It's really, Your Honor, about the

13 chain of inference that has been played out here is, if 14 Mr. Skinner had challenged his prior, then Mr. Mann 15 would have brought in the police officers, and at least 16 one of those police officers we're given to understand 17 had a credibility problems, so I'm trying to find out Ii 18 what the basis for Mr. Mann's opinion that that officer 19 had a credibility problem. 20

THE COURT: Go ahead. Q

(By Mr. Owen) My question was what is the

basis

22 for that opinion? 23

When you're a prosecutor and you work with pol ice

24 officers, you quickly learn which officer will make 25 their case in their reports by knowing the elements of BETTY TATE, 3101 TOWNBLUFF DR., #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. 111 11-18-05

742

1 their offense, and establishing those elements in their 2 report by put ting in the facts that they had to support

3 those elements in this document, and you also very 4 quickly learn which officers will feel a need to add

5 something that may not be true, and you develop a 6 comfort level with officers - - you can figure out which 7 off icers who when they tell you something, you can take

8 it to the bank, and which officers you might need to be

9 concerned about.

10 Q With respect to your experience with Officer Chance 11 he was not an officer you could rely on in that way? 12

Well, he had a lot less credibility than Allen

13 Smith.

14 Q I also wanted to ask you, Mr. Mann, with respect to 15 the theft of the - - or unauthorized use of motor vehicle

16 case that was mentioned earlier, I believe you still 17 have in front of you the sentencing --do you still have 18 in front of you the sentencing 19

From his plea hearing?

Plea hearing colloquy transcript.

Yes, sir.

I want to preface this by saying it seemed from the

23 exchange between you and counsel for the respondent that

24 what was being suggested was that Mr. Skinner might come

25 to court and deny his guilt of that offense, and then BETTY TATE, 3101 TOWNBLUFF DR., #923, PLANO, TX. 972-596-9442

743

EVIDENTIARY HEARING, VOL. 111 11-18-05

1 your response, as I understand it, was had he tried to

2 do that, you would certainly have brought other 3 wi tnessesand confronted him with the fact of this

4 transcript. No, I would have hopefully had a certified copy of

6 the transcript and impeached him with it. 7

And now I'm going to direct your attention to

Page

8 14 of the transcript, Mr.. Mann, at Lines 19 through 22,

9 and what it says there is that he's asked by - - I 10

believe that's by his counsel -- no, I'm sorry, it's by

Mr. Comer, the prosecutor, whether on the date of the

12 charge in this case he had authority or permission by

13 Mr. Pendergrass, the owner ,to take the vehicle on that 14 date, and Mr. Skinner responded, "Not at that particular

15 time, no.1I

16 Obviously that's not a defense to the 17 unauthorized use because we're talking about that l,

1~ occasion in question, correct? 19

Correct.

However, it might be a fact which someone could

....

21 offer in mitigation of that offense; isn't that so? It would depend --

I don't know.

It would depend on the circumstances, wouldn't it?

Sure.

So if the parties - - if Mr. Skinner and the actual

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

EVIDENTIARY HEARING, VOL. 111 11-18-05 1

owner of the vehicle had had a previous understanding

about Mr. Skinner's use of the vehicle, that might be a

fact that could be offered in mi tigation, wouldn't it

be?

A No, not under the scenario that you're talking

abou t .

Q Why is that?

A Because you're talking about a man that's already

pled guilty to it and been punished for it, and then

he's get ting on the stand and denying that it ever

happened.

your attention to, Mr. Mann, does Mr. Skinner say that

on the date that he was charged with the unauthorized

use of this motor vehicle, he had permission to use it?

A No --

Q No, he doesn't say that. He says

A Excuse me, may I finish my -Q Yes, you may. A I assume he was indicted for an offense that

occurred on a specific date, and he pled guilty to that

offense on that particular date, end of story.

Q End of story as to his legal responsibility for the

offense on that date, correct?

A Correct.

744

He doesn't

does he, anywhere that I directed

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EVIDENTIARY HEARING, VOL. 111 11-18-05

745

MR. OWEN: May I have just a moment, Your

2 Honor? 3

THE COURT; You may.

MR. OWEN: Nothing further, Your Honor.

MS. HAYES: Very short.

RE-DIRECT EXAMINATION

7 8

9 BY MS. HAYES: 10

You were asked about Corporal Lance --

Chance.

Steve Lance.

Chance.

This says "Lance" one place and "Chance" right

15 beside it. 16

Wai t a minute, wait a minute, wait a minute. Let's

17 get this straight. l,

If you'll get Respondent's 33, like the last page,

19 it talks about - - it's the voluntary statement. .....

Okay, Chance.

Now does your personal opinion about Mr. Chance

22 detract from the fact that he was apparently a victim of

23 an aggravated assault? 24

No.

And the fact is on this off icer' s statement it says

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746

EVIDENTIARY HEARING, VOL. 111 11-18-05

1 that he was taken to the hospital for treatment; is that

2 correct? In fact, to the emergency room, if you'll look last two lines.

3 at the

Yeah, and in Officer Smith's report it says he took

him -- well, if you look at the victim here

I think

6 we're confused. Corporal Lance is the victim. 7

So actually you've got three off icers here,

Okay.

8 we've got Lance -9

Right, you've got Steve Chance, got corporal Lance,

10 and got Allen Smith. 11

Okay.

So Chance was involved but he's just there

12 when it happens, right? 13

MR. OWEN: Objection,leading.

THE COURT: Overruled.

Let me see.

I have some - - all right, what's your

16 question again? 17

(By Ms. Hayes)

From the record it looks like

18 there's a Corporal Lance there -19

Right. there's a Sgt. Chance, and then there is Officer

21 Smith. 22

Right.

Three officers?

Right.

And it's Corporal Lance that appears to have been

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EVIDENTIARY HEARING, VOL. 111 11-18-05

747

1 inj ured? 2

That's right.

And he was taken to the emergency room?

That's right.

Would you have sufficient evidence, even if you

6 don't call Steve Chance for any reason to go rebut any 7 claims that of the aggravated assault didn't happen? A

Allen Smith is all I would need. MS. HAYES:

Nothing further.

MR.

Nothing further, Your Honor.

THE COURT:

MR.

MS. HAYES:

THE COURT: You're excused. Do you have a

OWEN.:

OWEN:

May this witness be excused? Yes, he may from our perspective. Yes, Your Honor.

15 very short witness? MS. HAYES:

I think we're okay at this point.

17 We have got - - we're not really sure who all is outside t,

l' yet, so we'd better do just 19 20

THE COURT: Let's take a ten minute recess

MS. HAYES: They're not here, Your Honor.

,..'..

THE COURT: How many more witnesses - - go

22 ahead, Mr. Mann. How many more witnesses do you have? 23

MS. HAYES:

Perhaps seven, but they're all

24 really short. Harold Comer on recall, and then six

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

EVIDENTIARY HEARING, VOL. 111 11-18-05 1

748

THE COURT: And do you know if you're going to

2 have any rebuttal witnesses? 3

MR. ROBINSON: One I know of, Your Honor, and

4 the others depends upon what Mr. Comer testifies to. I'm not trying to (inaudible).

THE COURT:

MR. ROBINSON: No, I know of at least one

7 we're going to call. 8

THE COURT: We'll go ahead and break for

9 lunch. We're going to take a little shorter break than

10 we have been. I'm pretty sure the lunch crowds have 11 cleared out. We're going to be in recess until 1:30. (Lunch Recess)

12 13

THE COURT:

Call your next witness.

MS. HAYES:

Respondent calls Gerry Douglas.

THE COURT:

Has this witness been sworn?

MS. HAYES:

No, Your Honor.

THE COURT:

Take the oath, sir. (Witness Sworn)

18 19

THE COURT: Take a seat right up here. State

20 your name and spell your last name for the record. 21

THE WITNESS: Gerry Douglas. My last name's

22 D-o-u-g-l-a-s. 23

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

EVIDENTIARY HEARING, VOL. 111 1i-18-05

749

GERRY DOUGLAS. Called bv Respondent (Sworn)

1 2

DIRECT EXAMINATION

5 BY MS. HAYES:

the record is it G-e-r-r-y, for Gerry?

And

Yes, it is.

Mr. Douglas, years ago did you live in the area

also for

9 where Andrea Read was? 10

Yes, I lived right next door.

When you say right next door, how far away? How

12 many houses or -13

(Inaudible). Her yard and my hard.

Were you living there next door to Andrea Reed on

the night of New Year's Eve, 1993?

Yes, I was.

Do you remember anything out of the ordinary

1~ happening on the early morning hours of January 1st, 19 1994? 20

There was a bunch of cop cars surrounded our block

21 and I went outside to see what it was, and they told me 22 to get back in the house, it was an emergency. 23

At the time that this happened - - did there come' a

24 time in the morning hours of the 1st that you saw Hank

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

EVIDENTIARY HEARING, VOL. 111 11-18-05

750

the house.

1 A When they brought him out of

2 Q And how did Mr. Skinner appear, or could you , 3 tell how did he appear to you when he came out?

4 A He was wide-eyed and crazy looking but he was 5 covered wi th .blood and everything. 6

Did there also come a time that - - also that same

7 morning that Ms. Reed came out and talked with you about

8 what had happened? 9

Yes, she came back to my house about 3: 00 or 4: 00

10 0' clock that morning. 11

how Ms. Reed appeared? Was she --

12 opinion about

Without telling us what she said, what was your

Hysterical, scared.

THE COURT: what time of the day was this?

15 Ab 0 u t 4: 0 0 0' c 10 c k ? THE WITNESS: Yes, sir.

(By Ms. Hayes) At the time that she came out and

18 talked to Y9U, did she tell you whether she had been to

19 the police to make a statement, or did she talk to you 20 before she made a statement? 21

She'd already been down there. She made a

22 statement that morning. She had been down there that night too. She had been up there for a little while. 23 24

Did you talk to her before

she went to make the

25 statement or when she came back? BETTY TATE, 3101 TOWNBLUFF DR., #923, PLANO,TX. 972-596-9442

EVIDENTIARY HEARING, VOL. 111 11-18-05 1

Both.

How did she appear before she went to make the

751

3 statement? You said hysterical. Was that before the 4 statement or after, or both. A

It was probably before (inaudible) she went to the

6 police station. THE COURT: You probably need to speak up just

8 a little bit. 9

It was before.

(By Ms. Hayes)

From what you know of having seen

11 her, and how she appeared - - one second. When you talk about her being hysterical and

13 upset, how do you know that she was hysterical and

14 upset? What can you tell US about that? 15

I've known her my whole life.

I just know her real

16 well. 17

So that wouldn't be her normal way of act ing?

No. She's always Crazy acting but she was very

19 upset and she was scared for her li fe. ..

And you testif ied just a minute ago that Mr.

21 Skinner's shirt or his clothes were covered in blood? 22

There was blood on him (inaudible).

And you said something about him appearing what

24 wìld - - what was the phrase you used? 25

wi ld look (inaudible).

I've known him for a long,

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EVIDENTIARY HEARING, VOL. 111 11-18-05

1 long time too. He was -- in fact, he was -- he just 2 went back to his driving and he'd drive by. 3

Could you tell from where you could see him - - I ,."

4 suppose he had handcuffs on him when he came out. Would

5 that be correct? 6

Uh- huh.

Any kind of leg cuffs or anything?

I don't know.

Obviously the officers probably had a hold of him

10 when they brought him out; is that correct?

Yes.

So would you have any way of judging whether he was

13 staggering or falling down? 14

No, I couldn't tell. Too many people there.

Just to clear this up, since you're here at court,

16 would you normally be wearing - - would you explain why 1 7 you're iIl the clothes that you're in?

here .

I was

You're a painter?

Yes.

I want to talk again about Andrea, Andrea Reed., and

at work when I was called to come up

22 her being upset. Did she tell you something related to

23 the reason that she was so upset? 24

Because of Hank. He came barging in her house.,

25 running in the back bedroom. BETTY TATE, 3101 TOWNBLUFF DR., #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. 111 11-18-05 1

753

And is there anything else that she told you about

2 why she was upset? A

Yeah, because he had threatened her. She had told

4 me that he had said if she told them where he was hiding 5 that he was going to kill her and the kids in the house. 6

Is there anything else that you can remember that

7 she might have told you specifically about other reasons

8 why she might have been upset too, that had to do with

9 on that night?

lOA Well, besides that, making the sto.tement up there 11 at the police station had her really upset. 12

So it was a traumatic event to go and from she told

13 you 14

MR. OWEN: Obj ection, leading.

THE COURT: Sustained.

(By Ms. Hayes) At that time, or any time after

17 at this time when she was upset, did she tell you t

1~ anything in particular about Twila -19

MR. OWEN: Objection, leading.

THE COURT: Sustained.

(By Ms. Hayes) When Ms. Reed appeared upset, did

22 she tell you something -23

MR. OWEN: Obj ection, leading.

THE COURT: Overruled.

(By Ms. Hayes) Did she te 11 you something --

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

EVIDENTIARY HEARING, VOL. 111 11-18-05

754

i anything regarding Twila Busby? 2

MR. OWEN: Obj ection, leading.

THE COURT: Don't lead the witness.

No, she didn It.

pass the witness.

MS. HAYES: I

MR. OWEN: May I have just a moment i Your

7 Honor? 8

CROSS EXAMINATION

11 BY MR. OWEN: 12

Good afternoon, Mr. Douglas. Would you tell us

13 again about this shirt that Mr .

Skinner was wearing,

14 that you saw him wearing when he came out of Ms. Reed's

15 house? 16

It was tore up and it had blood on it.

Torn up and it had blood on it. Can you remember

18 anything else about it? No, I can't. A 19 20

When you first went over to Ms. Reed's house, the

21 police told you to get back, didn't they, because this 22 was a crime scene? 23

No, they told me to get back in my house, it was an

24 emergency, because I live on her property and it's 25 right - - I mean our houses are right - - I mean I walk BETTY TATE, 3101 TOWNBLUFF DR., #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. 111 11-18-05

755

iout my back door and take three steps, or four steps and

2 I'm at her house. 3

So you were very close by and when you tried to go

4 across there they said get back, it's an emergency? A

Yeah.

further questions, Your

MR. OWEN: I have no

7 Honor. 8

MS.

THE COURT:

HA YE S :

OWEN:

Nothing further, Your Honor. May

this witness be excused?

Yes, Your Honor.

MR.

THE COURT: You're free to go. Thank you.

MS. HAYES: We'll call Harold Comer.

THE COURT: Harold Comer. Have a seat and 1

14 state your name. 15

THE WITNESS: Harold Comer.

THE COURT: And you're the same Harold Comer

17 who testified I believe Wednesday? t THE WITNESS: Yes, .sir. 1st,

THE COURT: You understand you're still unde~

20 oath? 21

THE WITNESS: Yes, sir.

THE COURT: All right.

24 25

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756

EVIDENTIARY HEARING, VOL. 111 11-18-05

1 HAROLD COMER. Called by Respondent (PreviouslY Sworn) 2

DIRECT EXAMINATION

5 BY MS. HAYES: 6

Good afternoon, Mr. Comer. Do you remember on lot about

7 Wednesday when you testified that we talked a

8 a blood spatter expert that the defense had hired? 9

Yes.

And that was Max Courtney; is that correct?

Yes.

MS. HAYES: Ask to approach wi th Respondent's

13 13. THE COURT: You may.

(By Ms. Hayes) I'm handing you Respondent's 13. MS. HAYES: For the record it's Max Courtney's

17 CV that we just down loaded from the internet. 18

(By Ms. Hayes)

Does this appear to be the same Max

19 Courtney that you had hired as a blood spatter expert? 20

Yes. MS. HAYES: We move for the admission of

22 Respondent's Exhibit 13. MR. ROB INSON: Obj ect ion, Your Honor. We

24 don' t have the witness here and it's hearsay, and it's a 2 5 2 0 0 5 CV --

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EVIDENTIARY HEARING, VOL. 111 11-18-05

THE COURT: The las t obj ect ion wi 11 be

2 sustained. 3

(By Ms. Hayes) Mr. Fields (sic), why did the consult with Max Courtney?

4 defense

Come r .

I'm sorry. This has been a very tiring day. Why did the defense confer wi th Mr. Courtney?

8 A We wanted an expert to examine the evidence that 9 was in the evidence room at the Pampa Police Department 10 to determine - - give us some advice about the blood

11 spatter and the meaning of thebiood spatters that

12 appeared on the evidence that was in that room. 13

And when you - - did y' all hire Mr. Courtney?

The court allowed us to retain Mr. Courtney as a

15 defense expert. 16

Are you aware of - - how did y' all come to pick Max

1 7 Courtney as your expert? t¡:

Oh, I don't exactly remember how we finally settled

19 on Max Courtney. We did review his credent ials, I 20 remember that, and we thought that he was someone who

qual i fied to do that kind of work, and we

21 was highly

22 settled with him. 23

And if you'd look at Respondent's 13, would you

24 agree when it's listing credentials and

background that

25 there are dates beside many of the entries, at least BETTY TATE, 3101 TOWNBLUFF DR., #923, PLANO, TX. 972-596-9442

758

EVIDENTIARY HEARING, VOL. 111 11-18-05

1 those that are in chronological order? 2

Yes.

And if you in fact review this document, you could

4 tell which credentials exist from 1993, or before

5 1 9 94 - - 0 r 1 9 9 7 ? I gu e s s the t ria 1 was in' 9 5, yo u can 6 see things for '95 and before?

7 A Yes. 8 Q And so would these in fact be some of the 9 background or credentials that Mr. Courtney had that led

10 you to hire him as your expert, at least everything

11 through '95.

12 A Well, the only thing I can say there, Ms. Hayes, is 13 we were convinced that he was the best we had in that 14 field, in Texas, so we decided not only from his CV, but 15 also from the reputation he had as being a blood spat ter

16 expert. 17

Do you think that that CV would adequately reflect

18 some of the credentials that you relied on in choosing 19 him as your expert? 20

Well, I'm sure it does.

I can't by looking at this

21 right now recall those matters. MS. HAYES:

I'll try again.

I'll move again

23 for admission of Respondent' s13. We can take out 24 everything after '95

at the end of trial.

MR. ROBINSON: Still hearsay, Your Honor. BETTY TATE, 3101 TOWNBLUFF DR., #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. 111 11-18-05

759

THE COURT: Sustained.

THE COURT: Counsel, I'm going to sustain the

3 obj ection. The witness can testify as to what it was

4 about Mr. Courtney that caused him to hire him. He has 5 testified he investigated him and thought he would be

6 one of Texas experts on the issue. But he's also 7 testified he didn't do it off this CV and he doesn't

8 remember him from this CV. He's showed the basis, or I

9 think he has. 10

(By Ms. Hayes) There was some quest ioning on

11 Tuesday - - or I'm sorry, Wednesday, about Robert

12 Donnell, and the defense's decisions about how to

13 about he fit into the defense's strategy. 14 Can you explain again about how Robert Donnell 15 fit in with the overall defense themes? 16

All right. At the outset the evidence - - the

17 state's evidence against Mr. Skinner was formidable. ,ft

1l' There was the DNA evidence, as I recall t that would show

19 that Twila's, as well as Elwin Caler's blood was on the

20 shirt and pants of Mr. Skinner. There was the blood

21 spatter evidence that would be contrary to the defense's 22 position that Mr. Skinner was comatose on the couch at 23 all times during the time that Twila Busby was being ,

24 attacked. There was the evidence that Mr. Skinner had

25 given a statement to Detective Terry Young, in which BETTY TATE, 3101 TOWNBLUFF DR., #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. 111 11-18-05

760

were statements made that were inconsistent with

1 there

2 what our position was at trial, and that is that he was

3 on the couch at all times during the attack on Twila

4 Busby. Now, faced wi th that evidence, we decided that

6 the best defense theory posture would be to attack the 7 state's evidence because of this lack of investigation.

8 For example, on the DNA we felt that to go forward and

9 have the defense affirmatively request additional 10 testing, would prove no more helpful to us than the

11 orig~nal test ing that had already been done. 12 Now Donnell and also our second prong on too intoxicated to 13 the defense was that Mr. Skinner was

14 have been physically coordinated enough to commit these 15

acts.

an alternative to Mr. Skinner.

So we thought it would be helpful if the jury had I mean it's one thing to

17 say that - - to try to show that he was intoxicated and

18 couldn't perform these acts, but we also wanted to 19 convince or raise a reasonable doubt in the jury's mind 20 that Mr. Skinner was the assailant, we thought we'd dô 21 that in this manner, that is, had the state chosen to 22 test all of the evidence for DNA, then it might have

23 proved, or might have been helpful to Mr. Skinner in

24 indicating some other third party was involved in the 25 commission of the offense. BETTY TATE, 3101 TOWNBLUFF DR., #923, PLANO, TX. 972-596-9442

761

EVIDENTIARY HEARING, VOL. 111 11-18-05

But since we were going to fault them for not

2 having done that, we thought that we might offer up 3 some, if I could call it a decoy i maybe that's. ' not too

4 appropriate, but a decoy for the jury to consider in the

5 sense that if the state had examined all this evidence

6 and tested it, it might indicate that someone like 7 Donnell had committed the offense and not Mr. Skinner.

8 So that was the reason why we came up wi th Mr. 9

Donnell.

I suppose there could have been two or three

10 others that you just suspected, but Donnell -- I think 11 Howard Mitchell's testimony was, if we had learned 12 before trial, that this fellow had had some aggressive 13

tendencies towards Twilai and had in fact, tried to rape

her, and also at the party that night he had made

improper advances toward her, and made some (inaudible)

sexual advances toward her and inappropriate comments,

we thought this would be an appropriate thing for the

jury to hear, again create a reasonable doubt, and we

wanted to re-enforce that somewhat

with the testimony 'of ,

other wi tnesses other than Howard Mitchell, so we

offered I think two other witnesses.

I remember Sherri

22 Baker was one, and another - - I can't remember who the

23 other was, to testify as to violent character and things

24 of that nature. 25 But really we didn't seriously consider Robert BETTY TATE, 3101 TOWNBLUFF DR., #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. 111 11-18-05

762

1 Donnell as the assailant in this case because of the

2 evidence that we had before us. We thought we had to '. 3 deal with the evidence that we had, and we thought that

4 that would be something that would ind~cate to the jury

5 welli maybe if this fellow was that aggressive toward

6 her, maybe the DNA testing by the state would have

7 indicated that, so generally that's what we put our

8 fingers on. 9

And I believe you just used the phrase just to

10 offer him maybe as a decoy. How about other phrases?

11 How about like a red herring? Would that be appropriate

12 also? 13

MR. ROBINSON: Obj ection. Your Honor, this

14 witness was here on Wednesday and he testified on this 15 very same subject at great length, and I examined him at

great length on the subj ect . He was cross examined at great length on the subj ect . I don't know why he's it seems to me like we've got six or seven or eight more

witnesses to go here.

I don't understand why we're

20 having him back here today to testify on the very sanre 21 thing he testified to on Wednesday. 22

THE COURT: Well, they're calling him in their

23 case in chief. MR. ROBINSON: That's right, Your Honor, but

25 in the efficient -PLANO, TX. 972-596-9442 BETTY TATE, 3101 TOWNBLUFF DR., j9231

763

EVIDENTIARY HEARING, VOL. 111 11-18-05

1 THE COURT: It may not be efficient but they 2 may do it (inaudible) Right now I haven't really heard

an objection.

Do you have one?

MR. ROBINSON: Well, I'll object that these

5 questions have been asked and answered before. THE COURT:

I'll overrule that obj ection at

7 this time. 8

(By Ms. Hayes) Now, if someone was wanting to give

9 a review about how they thought counsel performed in Mr.

10 Skinner's case, say if they were trying to evaluate your 11 performance, would you expect that they would want to 12 contact you and interview you personally to ask about

13 reasons of why you did or did not do things at trial? 14

Yes.

Were you ever interviewed by Mr. Gary Taylor

16 regarding this case? (Inaudible)

I don't know Mr. Gary Taylor, no.

1~'

You've never been interviewed by Mr. Taylor?

No, Mr. Taylor and I have never met.

If someone testified that they could determine your

17 l

21 investigation - - for the sole extent of your

22 investigation, based just on your testimony here in this 23 hearing, would that be correct? 24

Would that give someone a fair appraisal of

25 everything, no. BETTY TATE, 3101 TOWNBLUFF DR., #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. 111 11-18-05

764

1 Q That's a better way to say it. Would your 2 test imony here give everybody a fair appraisal of

3 everything you did on your investigation? 4

No.

order to evaluate

I would think that in

5 counsel's performance you'd have to read the record.

6 You can't take an isolated incident out of the record 7 and serve them up as being examples of effectiveness or have to read the whole record so

8 ineffectiveness. You

9 that you can be fairly informed as to the effectiveness

10 o£ counse 1, and how particular evidence f its into the 11 scheme, the defense's scheme. 12

Regarding Andrea Reed, and her testimony, I believe

13 you testified earlier that you had actually had a chance

14 to interview Ms. Reed; is that true? 15

Yes.

But I don't remember if I asked, but I need to

17 again, a~ any point in any interview contact you had

18 with her, before or after trial, has she ever told you 19 that she was threatened by the police?

20 A I only talked to Ms. Reed one time and that was

21 before trial. 22

Did she ever mention that she had been threatened

23 by the police? 24

No.

I'd like to talk to you briefly about the conflict

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765

EVIDENTIARY HEARING, VOL. 111 11-18-05

1 of interest claim, that there has been an allegation

2 that because of you being the prior D.A. and having Mr. Skinner, that you were prevented from

3 prosecuted

4 going in and challenging prior convictions. First off, Ken Fields was co-counsel, correct?

5 6

Yes..

And did Ken Fields have any sort of obligation or

8 had he been of previous prosecutor against Mr. Skinner? 9

No.

So if the defense had actually thought they wanted

11 to challenge the prior convictions, would there be

12 anything that you could see that would prevent Ken 13 Fields from doing that, if they thought that was a good 14 reason? 15

No.

Would you - - I'd like to talk about your reasons

17 for not attacking the priors. Would you have attacked r

l,f

1l the priors in this case if you - - would you have

19 attacked the aggravated assault or the unauthorized uSe 20 of a motor vehicle? 21

No.

Why not?

Well, you have to balance the good against the bad,

24 and let me say, I recall Mr. Skinner telling me that -25 and I may have this confused wi th another incident, but BETTY TATE, 3101 TOWNBLUFF DR., #923, PLANO, TX. 972-596-9442

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EVIDENTIARY HEARING, VOL. 111 11-1B-05

1 he told me that on one occasion that he didn't recognize 2 that someone was a police officer when he arrested him,

3 and then -- and it may be that he had told me on the 4 aggregated assault offense against the officer that he

5 was acting insel f - defense. 6 Now, we'd never really seriously considered 7 going behind the previous convictions and getting into 8 details of that because we thought, number one, it would

9 be highly unlikely that an officer would testify that 10 Mr. Skinner was acting in self -defense when he used 11 force against him, and number two, the only way that we

12 could get that testimony before the jury would be to 13 have Mr. Skinner testify, and that certainly would have 14 been, in my opinion, ineffective because it would open

15 Mr. Skinner to questions on the bad acts alleged to have 16 been - - that was shown earlier. It would open him to

17 questioning about the January the 1st statement, which 18 was inconsistent with our defense, and would op~n the 19 door to be admitted the unadjudicated offenses that we're

20 admitted, I think, during the trial of one of those 21 offenses. So I think it would not have been plausible 22 for us to try to prove up the details of the reason he

23 was convicted when it would subject Mr. Skinner and, in 24 that fashion, it also would be, I would think, very 25 harmful to the defense case whether I think

some of

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767

EVIDENTIARY HEARING, VOL. 111 11-18-05

1 those bad acts were violent bad acts and so it was our 2 opinion that that would not be - - that would not be

3 warranted. Now, I will say that I never explained to Mr.

5 Skinner that I would be prohibited from doing that

6 because of the fact that I was previously the District

At torney.

I never told him that. Mr. Skinner, all we

8 talked about was conflict and I don't ever remember

9 explaining it to him that I couldn't do it for that 10 reason. Barring that, pursuant to that, it would have 11 been ineffective to do that. 12

Do you remember discussing with him the

13 advisability of attacking the prior convictions? 14

Yes, I think we talked about it. He mentioned it,

15 and as I recall we talked about that and we decided 16

and wi th Mr. Skinner's understanding

that that would

17 not be too wise to put him on the stand and open him up t

1~' to such cross examination. 19

MS. HAYES: Nothing further, Your Honor.

THE COURT; Any cross?

MR. ROB INSON: Could I have just a moment,

22 Your Honor? 23 24

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

768

EVIDENTIARY HEARING, VOL. 111 11-18-05 CROSS EXAMINATION

1 2

3 BY MR. ROBINSON; 4

Mr. Comer, just one question. Did you do any

5 investigation with respect to these prior convictions toward trying to get evidence to attack

6 that was aimed

7 these prior convictions, or mitigate them at least that

8 would allow you to do that without putting Mr. Skinner

9 on the stand?

10 A Did we consider a way to get that before the jury 11 without putting Mr. Skinner on the stand? 12

Yes. My question was did you do any investigation,

13 like for example, did you interview people who were

14 involved in the stolen vehicle case, or the assault on a 15 police officer? 16

No, sir, I did not. Not that I remember.

MR. ROB INSON: That's all I have, Your Honor.

THE COURT: May this witness be excused?

MS. HAYES: Yes, Your Honor.

MR. ROBINSON: Yes, Your Honor.

THE COURT: You're excused from further

22 attendance. You can go back to business. MS. ODEN: Judge, I don't know if Ms. Hayes

24 just said this, but the respondent would call Connie

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

EVIDENT~ARY HEARING, VOL. 111 11-18-05

769

THE COURT: Connie Lockridge.

MS. ODEN: And we just told her to be stepping

3 in. THE COURT; Come around over here and take the

5 oath.

6 (witness Sworn) THE COURT: State your name and spell your

8 last name for the record.

THE WITNESS: Connie Lockridge,

10 L-o-c-k-r-i-d-g-e. 11 CONNIE LOCKRIDGE, Called by Respondent (Sworn)

12 13

DIRECT EXAMINATION

16 BY MS. ODEN: 17

Ms. Lockridge, go ahead and tell us where you work

(//

1 ~ and how long you've worked there.

I am currently employed in the 31st District, I' ni

an investigator in Pampa, Texas.

I've been there since .,.

21 June of this year, after retiring from the Pampa police

22 Department. 23

And when the crime that we're talking about took'

24 place, were you working at the Pampa police Department? 25

Yes.

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

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EVIDENTIARY HEARING, VOL. 111 11-18-05 1

770

When did you start working at the Pampa police

2 Department? 3

In January of '93.. a year when all of

So you'd been there just about

5 this happened? 6

Yes.

7 Q And tell us in general terms what was your role in 8 the investigation or assisting with the invest~gation of

9 this crime?

10 A I was temporarily assigned for about three or four 11

days, maybe, to the criminal investigation division.

12 was the records manager for the police department, and I 1.3 basically did a canvas of certain neighborhoods and

14 spoke wi th potential witnesses. 15

Were you responsible for any follow up

16 investigation based on the leads that you may have 17 uncovered? 18

No.

And who were your notes or reports turned ovèr to'

20 for investigation? 21

Lt. Steve Chance.

Did you interview a lady named Andrea Reed as part

23 of your canvas of the neighborhood? 24

Not part of the canvas.

I interviewed her at the

25 police department on January 1st. BETTY TATE, 3101 TOWNBLUFF DR., #923, PLANO, TX. 972-596-9442

771

EVIDENTIARY HEARING, VOL. 111 11-18-05 1

So you were the one that conducted the interview

2 right after Hank Skinner was arrested? 3

Yes.

When you interview someone in this kind of

5 situation, what is your approach to them as a witness?

6 Did you think of her as a witness or as a suspect, or

7 how did you think of her? 8

As a victim. As a witness, but as a victim.

Why did you think of her as a victim as well?

Because she apparently was frightened, was

11 concerned for her children's safety, as well as her own. 12

While you were interviewing her at the police you needed to warn her

13 station, did you ever feel that

14 that she could be prosecuted as an assessory or for any

15 other reason? 16

No.

And hov do you know you didn't do that?

Because I viewed her as a victim.

16'

I didn't view

19 her in any kind of suspicious way at all. Based on her /

demeanor and her behavior, she had been terrified.

Is it your understanding of Texas criminal law that

22 she could have been prosecuted as an accessory if, for 23 example 24

MR. OWEN: Objection, Your Honor.

Calls for a

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

EVIDENTIARY HEARING, VOL. 111 11-18-05

THE COURT: Sustained.

1 2

772

(By Ms. oden) Well, let me ask you this. As a

3 police officer did you receive training in the criminal

4 laws of the state of Texas? 5

Yes.

And did your understanding of those laws guide your

7 performance of your duties? 8

Yes.

Did your understanding of the elements of different

10 crimes shape who you would consider as a suspect or as a

11 victim? 12

Yes.

And did it affect how you conducted your interviews

14 of witnesses or suspects or victims? 15 A Yes. 16 Q Based on your understanding of the Texas criminal 17 law, do you feel like Andrea Reed could have been

18 charged as an accessory to the murders? 19

Not based on what I knew of the law, yes.

20 Q You say of the law, yes. So I want to clarify. 21 Was it no or yes? Based on your understanding could she

22 have been prosecuted as an accessory? 23

To the crime --

To the murders.

Not based on what I knew at the time, no, ma'am.

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EVIDENTIARY HEARING, VOL. 111 11-18-05 1

Okay. And have you learned anyth~ng since that

2 makes you change that opinion? 3

No.

For example, ìf she had helped

Mr. Skinner into the

5 house after he had committed the murders, would it have

6 been your belief that she could have been prosecuted as

7 an accessory for that act? 8

For helping him, yes.

When I say helping him into the house, I mean

10 physically helping -MR. OWEN: Objection, Your Honor.' The witness

12 has answered the question. MS. ODEN:

I'm trying to clarify her answer,

14 Judge. THE COURT: Overruled.

15 16

(By Ms. Oden) When I say helping Hank Skinner, I

1 7 don't mean he lping with the murders, I'm thinking (¡

1~ specifically of, for example, helping hold his arm to Is that

support his balance as he went up some stairs.

the kind of help that could be prosecuted?

No.

What if Andrea Reed assisted him in taking off his

23 shirt. Was that your understanding of what could be

24 prosecuted? 25

No.

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

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EVIDENTIARY HEARING, VOL. 111 11-18-05 1

What if she offered him emotional support after he

2 had committed the murders? Could that be prosecuted? 3

No.

So would you have in any way insinuated to Ms. Reed

5 that she could have been prosecuted for anything like

6 that? 7

No.

MS. ODEN: May I approach, Your Honor?

THE COURT: You may.

(By Ms. Oden)

I'm showing you, Ms. Lockridge,

11 what's already been marked as Respondent's Exhibi t 2. 12 Can you identify that? 13

Yes, ma'am.

What is that?

A typed statement from my interview with Andrea

16 Reed. 17

And do you see your signature on that page?

Yes.

I just want to clarify, your name has changed in

the past.

Correct ..

What was your name at the time you were conducting

Your name now is Connie Lockridge?

23 this interview? 24

Connie Ogle, O-g-l-e.

And is that the signature at the bottom of the

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

EVIDENTIARY HEARING, VOL. 111 11-18-05

775

1 page? 2

Yes.

When you conducted the interview with her, how did

4 you end up with a type written statement? A

It's my practice as I take statements I let the

6 witness tell me the story and then I type the story for

7 the ir review. 8

Did you have her review what you had typed out?

Yes.

Could she make any corrections if she wanted to?

Yes.

And at the end of it did she sign it?

Yes.

1 I

MS. ODEN: Your Honor, we'd introduce

15 Respondent's 2. 16

THE COURT: Didn't I already admit that?

MS. ODEN: I think we referred to it but ti

1~;

MR. OWEN: I don't believe that it is, Ydur

19 Honor. 20

THE COURT: Any obj ect ion?

MR. ROBINSON:

I have it's been admitted, Your

22 Honor. It's been admitted twice.

THE COURT:

MR. ROBINSON:

If it

hasn't been admitted, no

2 5 a b j e c t ion. BETTY TATE, 3101 TOWNBLUFF DR., #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. 111 11-18-05 1

776

(By Ms. Oden) As part of your procedures did you

2 also interview a gentleman named Howard Mitchell? 3

Yes.

How did you know to interview him? How did you

5 come across him? A

I believe

and I'm not for sure who told me that

7 Twila had been to a New Years Eve party at his house.

8 Q And did you follow the same procedures when you 9 were interviewing Howard Mitchell? 10

Yes.

You let him tell you the story and then you typed

he reviewed it?

12 it and

Yes.

While you're interviewing someone, do you take any

15 handwritten notes before you type it? 16

Yes. MS. ODEN: May I approach, Your Honor?

18 THE COURT: You may. 19 Q (By Ms. Oden) I'm showing you Respondent's Exhibit 20 16 (sic) (15). Can you identify that? 21

Yes, ma' am.

What is that?

My handwritten notes from my interview wi th Mr.

24 Mitchell. 25

And is that in the same condition - - no addition

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

EVIDENTIARY HEARING, VOL. 111 11-18-05

777

1 except for that exhibit st icker - - as it was the night 2 you took the statement?

Yes.

MS. ODEN: We'd introduce Respondent's 16.

MR. OWEN: May I have just a moment, Your

6 Honor? No obj ection, Your Honor. THE COURT: Admitted.

(By Ms. Oden)

16 (sic) (15).

I'm showing you Respondent's Exhibi t

Is that the typewritten statement that

10 you took from Howard Mitchell that he signed on that 11 date? 12

Yes. MS. ODEN: We move to have that introduced,

14 Your Honor. 15

MR. OWEN: No objection, Your Honor.

THE COURT: Admi t ted.

(By Ms. Oden) When you interviewed Howard

1~ Mitchell, what kind of information were you trying to 19 get about the crime? 20

From what I had gathered in talking wi th him, he

21 may have been one of the last people to have seen Twi la alive. I wanted to know - - part of my duties had been 22 23 to find out what her last 24 hours were like. 24

Did you find out anything through Howard Mitchell

25 that would guide the rest of your investigation, or BETTY TATE, 3101 TOWNBLUFF DR., #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. 111 11-18-05

778

1 potentially the investigation of the other officers? Or 2 perhaps were you hoping to find something out that would

3 guide the investigation of you yourself or other

4 offices? 5

Yes. Basically we were trying to find out who all

6 she would have been with at the party at Howard's house.

7 Q You mentioned that you were temporarily assigned to 8 this role in the investigation. At the time you were 9 doing these interviews did you know that somebody else

10 would be doing the follow up, based on your notes and -11

Yes, ma' am.

Was it important or unimportant to you to make sure

13 that you made a complete report of your findings? 14

Extremely important.

Does that mean that they're perfect or that there's

16 no mistakes in them? 17

No.

18 Q When you were int.erviewing Mr. Mi tchell were you 19 able to find out anything about Twila's relationship

20 wi th the defendant that would guide future investigàtíon

21 into the crime? 22

MR. OWEN: Objection, Your Honor, it's

23 irrelevant. 24

MS. ODEN: Your Honor, they're at tacking the

25 investigation of defense counsel for not further BETTY TATE, 3101 TOWNBLUFF DR., #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. 111 11-18-05

Certainly other people that

pursuing Bob Donnell.

779

2 investigated the case and what they were able to find 3 out is relevant as to the prejudice issue, if not the

4 deficiency issue of their ineffectiveness claim.

THE COURT: Overruled.

5 6

(By Ms. Oden) Tell us a little bit, if you

7 remember, about what you were able to find out about the

8 defendant's relationship with Twila Busby. A

Based on what I was told, Mr. Skinner was volatile

10 at times. Mr. Skinner was purportedly very possessive 11 of her, known to threaten people, to even threatened

12 her-MR. OWEN: Obj ect ion. The answer contains

14 hearsay. 15

MS. ODEN: Admission of a party opponent - - on

16 admission of Hank Skinner's. 17

THE COURT: She did not testify about anything

1~ that Skinner told her. 19

MS. ODEN:

I'm sorry, I thought he was

20 obj ecting to the threats. 21

THE COURT:

I'll allow this for the purpose of

22 that this is information that was received by the police

23 department and it's utilìzed for them in deciding what

24 investigation to conduct, not for the truth of the 25 (inaudible) . BETTY TATE, 3101 TOWNBLUFF DR., #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. 111 11-18-05

780

I'm sorry, go ahead, Ms. Lockridge.

(By Ms. Oden)

Mr. Mitchell indicated that approximately a month

3 prior to Twila's death, that Mr. Skinner had told him,

4 II I love her, but if she ever does me wrong, i'll kill 5 her. II I never got what do me wrong exactly meant.

6 According to Mr. Mitchell, in his opinion ,Mr. Skinner 7 had a fixation for violence; would sit around with the and talk about violent acts or knives and

8 other men

9 guns, things of that nature.

10 Q And as you talked to Mr. Mitchell were you able to 11 find out if he had done anything with Twila when he

12 dropped her off at her house that might have set Mr.

13 Skinner off? 14

Mr. Mitchell stated to me that he kisses women and

15 makes it comparable to a man shaking hands, and there's 16 nothing sexual with it, and that he drove Twi la home,

17 they sat outside and talked about some meaning of life, 18 or just things in general, gave her a kiss on the mouth,

19 just a friendly kiss, and then she went in. 20

About what time, if you recall, did Howard Mitchell

21 drop Twila off on New Years Eve?

22 A I believe he said around 10:00 p.m. 23 Q Did you find out anything did you find out 24 anything from Howard Mitchell, or from anybody else that 25 you interviewed that indicated Robert Donnell was a BETTY TATE, 3101 TOWNBLUFF DR., #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. 111 11-18-05

781

1 realistic suspect in this murder? 2

No, ma'am.

When was the first time you heard the name Robert

4 Donnell? 5

When state's attorney, Ms. Hayes, contacted me.

Did you ever in your investigation hear the name

7 Donnell? 8

No.

Were you able to learn anything about Hank

10 Skinner's mental or physical state around the time of 11 the murders, or that evening during your investigation? 12

In speaking wi th Twila' s mother she just spoke of

13 him having rages, and that was based on what the boys

14 would tell her. 15

Were you able to learn whether Howard Mitchell had

16 had any conversations with Mr. Skinner on that evening? 17

Howard told -- Mr. Mitchell said that Mr. Skinner

, ,

1~( had called him around 9: 00 p. m~, and said that he ánd

19 Twila wanted to attend the New Years Eve party at 20 Howard's, and would Howard come and get them. 21

Were you able to learn from Mr. Mitchell whether

22 Mr. Skinner was a regular user of drugs or alcohol? 23

Mr. Mitchell told me that it was his belief that.

24 Mr. Skinner was hooked on, I believe, Fiorinal -- I hope 25 I'm pronouncing that right, but that it was his opinion BETTY TATE, 3101 TOWNBLUFF DR., #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. 111 11-18-05

\t..

782

that he would take anything he could get.

Q As part of your investigation, did you interview a

lady named vickie Treat?

A Yes.

Q Do you know if she goes by any other name at this

point in time?

A I believe it's Broadstreet, possibly.

Q When you spoke wi th Ms. Broadstreet was it close to

the time of the murders?

A It was at Howard Mitchell's house I believe like on

the 3rd of January, possibly.

MS. ODEN: May I approach, Your Honor?

THE COURT: You may.

I'm showing you Respondent's 17.

that one of the police reports that you filed or dated

January the 6th of '94?

A Yes.

Q And I know that it's four pages long andslngle

page typed, but go ahead and look at that if you need to

refresh any recollection you may have.

(By Ms. aden)

When you interviewed Ms. Treat, did she tell

you anything about Robert Donnell or any of his

23 24

activities? A No.

Q Was it your policy or your practice when you're BETTY TATE, 3101 TOWNBLUFF DR., #923, PLANO, TX. 972-596-9442

783

EVIDENTIARY HEARING, VOL. 111 11-18-05

1 investigating something like this, to ask people if they

2 know of anything suspicious that happened around that

3 time? 4

Definitely.

Specifically did Ms. Treat tell you anything about

6 Robert Donnell cleaning out a truck or washing it, or

7 painting it? 8

No.

Is that the kind of things you would

have taken

10 notice of and put in your report? 11

Yes, ma'am.

MS. ODEN: No other questions at this time,

Your Honor.

Pass the witness.

I would move to

14 introduce Respondent's 17. MR. OWEN: Your Honor, we obj ect on the basis

16 of hearsay, except for the purpose that the court 17 identified

earlier in response to our hearsay obj ection

1l to all of her testimony about who she talked to and what

19 they told her. 20

MS. aDEN: That's fine.

THE COURT: Well, the objection is sustained.

MS. aDEN: Your Honor, we're not offering it

23 to prove the truth of the matter asserted in the 24 statements within but only to show what information was

25 provided to the police, and to show what guided their BETTY TATE, 3101 TOWNBLUFF DR., #923, PLANO, TX. 972-596-9442

784

EVIDENTIARY HEARING, VOL. 111 11-18-05

1 investigation further. THE COURT: Well, I will admit it for purpose

3 only. MR. OWEN: What I said, Your Honor, was we did

5 not obj ect to it being offered for that purpose.

6 THE COURT: I will admit it for that limited 7 purpose.

MS. aDEN: Thank you.

CROSS EXAMINATION

12 BY MR. OWEN: 13

Good afternoon, Ms ~ Ogle. It is Ogle?

Lockridge.

I'm so sorry.

I noticed that the handwri t ten notes

16 of your interview with Mr. Mitchell, which you

still

17 have up there in front of you, it identif ies you as the that your 18 interviewing officer, and that Connie Ogle, is

19 signature? 20

Yes.

That was your name at the time?

Yes.

That's on January the 3rd of '96?

, 94 .

I'm sorry. And if you could look at the

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EVIDENTIARY HEARING, VOL. 111 11-18-05

1 narrative report that you were just describing that 2 discusses your conversations with these various folks, 3 and the top of that report is dated January the, 6 th of

4 ' 94, but it identifies Ms. Connie Brainard. Why is

5 t ha t ? A

I had just divorced. Brainard was the name in the

7 computer system, and they had not changed it over. 8

So any time you got on the computer system they

9 reportedly identified you as Connie Brainard? 10

Until they changed it, yes, sir.

I believe that you testified earlier that - - you

12 were being asked about certain facts surrounding Mr. 13 Skinner's contact wi th Andrea Reed on the night of the

14 crime, and being asked whether each of the things that 15 counsel suggested to you would have supported a criminal

16 charge against Ms. Reed for being an accomplice, and you

17 were asked about, for example, the fact that she might 1~ have helped Mr~ Skinner physically up the steps in~o the L .r

19 house, that she might have removed his shirt and so on. 20 Do you remember those questions? 21

Yes, sir.

What about if she had hid him out after knowing

that the pol ice were looking for him.

Is that the kirid

24 of fact which in your understanding of the law might

25 have supported a charge against her as an accomplice to BETTY TATE, 3101 TOWNBLUFF DR., #923,

PLANO, TX. 972-596-9442

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EVIDENTIARY HEARING, VOL. 111 11-18-05

1 the crime, or an accessory after the fact? 2

Possibly.

You said earlier I believe that when you were doing

4 these interviews you were on a temporary assigriment to

5 the criminal investigation division; is that right? Yes, sir. A 6 7 Q And what was your regular assignment at the police 8 department at that time? 9

Records manager or administrative assistant to the

10 Chief of police. 11

And you had been in that position - - you had been

12 wi th the police department for about a year, as I

13 understood, at the time of these events? 14

Yes.

How much of that time did you spend in that

16 capacity as administrative assistant versus other roles 17 at the police department?

18 A The majority of the time. 19

So most of that first year you sent was as the

20 records manager and administrative assistant to the 21 Chief of police? Yes, sir. A 22 23

And how long were you involved wi th this

24 investigation for a period of time? Let's assume the 25

investigation starts on January the 1st of 1994.

How

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

EVIDENTIARY HEARING, VOL. 111 11-18-05

787

1 long after that were you involved with questioning

2 people and taking reports and conducting these

3 interviews? 4

I was on it for four days or maybe a week at the

5 most. 6

And after that time you went back to your previous

7 duties as the administrative assistant slash records

8 manager with the police department? 9

Yes.

How long did you remain in that capacity in the

11 police department before you changed your roLe at that

12 agency? 1996, June of ' 96. A 13 MR. OWEN: May I have just a moment, Your

15 Honor? 16

THE COURT: I guess.

MR. OWEN: No further quest ions, thank you.

l l/!

RE-DIRECT EXAMINATION

21 BY MS. aDEN: 22

Ms. Lockridge, did you have any reason to believe

23 that Andrea Reed was hiding Hank Skinner in her house.

24 while she knew that the police were looking for him? 25

No.

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

EVIDENTIARY HEARING, VOL. 111 11-18-05 1

Q Did you tell Andrea Reed that she was hiding him in

her house while the police were looking for him?

A No. Q Did anybody tell you that she had been hiding or helping him hide from the police? A No. Q So would that have played any part in your decision

to view her as a victim or as a witness in this case?

A It could have, yes.

4 5

Q If you had had information like that.

A True.

Q Bu t you didn't have information at that time?

A No.

Q Do you have any information at this point in time that Ms. Reed was Objection, irrelevant. MR. OWEN:

15 16

- -

Overruled.

THE COURT:

17 ¡,

f!' 'Ii

788

(By Ms. Oden)

Do you have any information' at this

time that Ms. Reed was helping hide the defendant when

she knew the police were looking for him?

21 22

A No. Q Did you in any way threaten or even slightly try to

persuade Ms. Reed to make her statement go in any

particular direction?

A No, I did not. BETTY TATE, 3101 TOWNBLUFF DR., #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. 111 11-18-05

789

MS. ODEN: No more quest ions, Your Honor.

1 2

RE-CROSS EXAMTNATION

5 BY MR. OWEN: 6

Do you remember what time it was, Ms. Lockridge,

7 when you began to interview Ms. Reed at the police

8 station? 9

Just a rough guess, maybe 2:00 o'clock, 2:00 to

10 3:00 a.m., something like that. 11

MR. OWEN: No further questions.

THE COURT: May this witness be excused?

MS. ODEN: Please.

MR. OWEN: No obj ection, Your Honor.

THE COURT: You're excused from further

16 (inaudible) . 17 ./ ,r

MS. aDEN: Terry Young.

(' 1~

THE COURT: please take the oath.

(Witness Sworn) 1

THE COURT: State your full name and spell

21 your last name for the record. 22

THE WITNESS: Terry Young, Y-o-u-n-g.

24 25

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

EVIDENTIARY HEARING, VOL. 111 11-18-05

790

TERRY YOUNG. Called bv Respondent (Sworn)

1 2

DIRECT EXAMINATION

t;.

BY MS. ODEN:

Q Mr. Young, where do you work and how long have you

worked there?

A Presently I'm at the Brazos County Sheriff's Office

in Bryan, Texas, assigned to the Brazos Valley Narcotics

Task Force, and I've been there since February of this

ye ar .

Q And back in December of ' 93, January of ' 94, where

were you working?

A I was working for the Pampa Police Department.

Q Are you a certified licensed peace officer in

Texas?

17 18

A Yes, ma'am. Q How long have you been so licensed?

A Since 1978.

Q What was your role, if you can describe generally,

in the investigation of these murders?

A I was the detective that was on call New Years Eve

that year and assigned to the criminal investigation .

division of the Pampa Police Department, and one of the

active investigators of the case.

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

EVIDENTIARY HEARING, VOL. 111 11-18-05 1

791

Did you have the occasion to take a statement from

2 the defendant in that case, Henry Skinner, on January

31st? A

Yes, ma'am.

MS. ODEN: Judge, would you prefer that I

6 leave that there so you can see, or that I move it over

7 here? 8

THE COURT: Either way.

MR. ROBINSON: Your Honor, we're going to

obj ect to the playing of this tape. It's unnecessary. 11 You have the transcript of the tape in the record, and

12 in any event, it's irrelevant to any issue here. MS. aDEN: Your Honor i one of the ir arguments

14 against the admission of the transcript is that it was 15 taken involuntarily, and certainly even if as a matter 16 of admissibili ty they have conceded that the transcript

17 is admissible, one of their arguments will be to the ll

1l weight of Henry Skinner's confession that morning..' 19

THE COURT: What's the relevance?

MS. aDEN: This shows you what his demeanor

21 was like, it shows how the interview proceeded, and you

22 can see and hear for yourself whether or not he was 23 intoxicated at the time he gave the statement, and so it

24 goes to the credibility, and it asks questions not 25 cumulative. BETTY TATE, 3101 TOWNBLUFF DR., #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. 111 11-18-05

792

THE COURT: What time was that interview

2 taken? MR. ROBINSON:

It was taken at 9:00 a.m.,

4 according to the transcript, Your Honor. 5

THE COURT: I'll hear it.

MS. ODEN: Judge, you don't even need to play

it here.

If they will stipulate that he can identify

8 that this is authentic -- I believe they already have,

9 then we don't have to play it. MR. ROBINSON: Your Honor, we'll stipulate

11 that the tape is authentic and we'll stipulate also, if 12 it helps any, that the transcript, which is an exhibit

13 here, I can't remember the number off hand, is a --

35-A.

MS. ODEN:

MR. ROB INSON :

is a true and correct

16 transcript. 17

MS. aDEN: It's about ten minutes long.

THE COURT: Have you got any obj ection other

19 than relevancy? MR. ROBINSON:

I certainly have an obj ection

21 as to relevancy but I also would obj ect on the grounds 22 that this state was an

involuntary statement and it was

23 a statement that was taken wi thout providing Mr. Skinner

24 with his right to counsel, and as we had the district 25 attorney testify to here, the tape would not have been BETTY TATE, 3101 TOWNBLUFFDR~, #923, PLANO, TX. 972-596-9442

793

EVIDENTIARY HEARING, VOL. 111 11-18-05

1 played at trial except if Mr. S.kinner had testified. He

2 said he wouldn't have even tried to play it at trial if 3 Mr. Skinner was going to testify. THE COURT:

I'll go ahead and allow the tape

5 but your relevancy obj ection is denied (inaudibLe). On 6 the admissibility, that's one of the issues we struggled

7 about and I asked you to file a supplemental brief, a right in front of 8 supplemental argument in front of you

9 this hearing, but I don't think we talked about the

10 tape, did you? MR. ROBINSON: Yeah, we did not talk about

12 the-13

THE COURT:

I have not found anything that

14 says in a civil proceeding or a habeas proceeding that 15

evidence of this type is suppressible..

It's either

16 relevant or it isn't relevant. You just don't have any 17 right to suppression like you would in a criminal case, l, 1g so I'll overruLe that objection. As I told

you duiing

19 the telephone conference if we had - - if you do have a 20 right to suppress it, we'd have a hearing on it and

21 afterwards then we can determine whether it should or 22

should not be suppressed.

I'm going to have to listen

23 to it one way or the other, so I will admit it reserving

24 the question of relevancy and allow you to supplement 25

wi th any authori ty that it shouldn' t be allowed.

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EVIDENTIARY HEARING, VOL. 111 11-18-05

794

1 you've got questions on whether it should or shouldn't 2 be suppressed, I think we ought to take it up with this

3 witness now. MR. ROBINSON: Yes, Your Honor.

5 MS. ODEN: Judge, if I may, I would just point 6 out that the contents of the tape have already been

7 admitted in evidence THE COURT:

Is the transcript already

9 admitted?

MS. aDEN: That's my understanding, Your

Honor.

It was admitted yesterday or the day before as

12 35 -A, and I would point out also to Your Honor -THE COURT:

If the transcript is already

14 admi t ted and already in evidence, I don't understand

15 what the argument is. I'll admit it. 16 MS. aDEN: And I understand that we are trying 17 to keep things short, but the tape is ten minutes long. 18 If they would stipulate that he is going to identify 19 this and say that it is an accurate recording, they have 20

been provided a copy of the statement on video prior to

the hearing, or we can drag the VCR out and watch it. THE COURT:

22 23

I think we can (inaudible) Mr.

Robinson said they'd stipulate to that part of it. MR. ROBINSON:

I've already stipulated to

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

EVIDENTIARY HEARING, VOL. 111 11-18-05

795

MS. aDEN: Okay. Then we would move to admi t

2 Respondent's 35. THE COURT: Admitted. Did you show me the

4 transcript? What's the transcript number?

MS. aDEN: 35-A.

It was through Harold Comer

6 on cross examination by the State. And I believe I 7

I believe it was introduced on

misspoke, Your Honor.

8 Wednesday ,not yesterday. THE COURT: Was it - - do you show that it was

10 admi t ted? The clerk does not show it was admi t ted. MS. ODEN:

I recall their saying no obj ection.

12 I don't know that you actually said the words admitted

13 because it wasn't my witness, but my understanding from

14 Ms. Hayes is that it was admitted. 15

THE COURT: Do you show it was admitted?

MR. ROBINSON:

other, Your Honor.

I don' t show one way or the

I just didn't make a record of

lF if .,

1Ø respondent' sexhibits. Your Honor, maybe I can cut through this. We

20 have no objection to the admission of the transcript, 21 and we have no obj ection to the admission of the tape 22 either, if the sole purpose of the admission of these

23 documents is that these were - - that this was 24 information that's been in the possession of the defense 25 counsel and for whatever

bearing it might have had on

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EVIDENTIARY HEARING, VOL. 111 11-18-05 1

their decision to do one thing or another as far as

preparing the defense.

these submissions, then I'm fine with that and we don't

even need the witness to testify because the issues

(inaudible) wouldn't be whether it would be admissible

at trial, or under the circumstances under which it

would be admissible at trial. The relevance would only

be the bearing it had on the decision of defense counsel

to do one thing or another ~

If that's the sole relevance of

MS. ODEN: Your Honor, in addition, respondent

would be introducing it to contradict what has now

claimed to be Andrea Reed's testimony, or truthful

testimony, because a lot of what she said in her

recantation is directly contradicted by the admissions

of the defendant. MR. ROB INSON:

I f that's the case, Your Honor,

then we don't object to it's admission for that purpose

ç 18

either, although I can't remember anything in the tape

that is a contradiction, but we can argue that later, .

but I would have no objection to its admission for that

reason.

". '

MS. aDEN:

In that case we would

move to admit

35-A, which is the transcript ,and 35, which is the

video.

THE COURT: All right, that will be admitted BETTY TATE, 3101 TOWNBLUFF DR., #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. 111 11-18-05

797

1 for those purposes that have been stated in court. 2

(By Ms. Oden) As part of your investigation did

3 you interview other people besides Hank Skinner? 4

Yes, ma'am.

Did you interview neighbors, friends, relatives?

I cannot remember specifics of who I did interview,

7 but I'm sure at the time I did. 8

And at any point in time was Robert Donnell raised

9 in your mind as a realistic suspect in this murder? 10

No, ma'am.

When you began this investigation, or in the middle

12 of this investigation, had you formed in your mind a

13 preconceived conclusion that Hank Skinner had done it? 14

He was - - the most likelihood that he did, that he

15 had (inaudible). 16

Were you unwilling to follow other investigative

17 leads that might have contradicted your first i 1 ¡l: in c 1 in at ion?

No.

And did you follow all the investigation leads that

21 you could? 22

Yes, ma'am.

When did you first learn that Twila Busby was at.

24 Howard Mitchell's party and how did you learn that? 25

I first learned it on the morning sometime, shortly

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

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EVIDENTIARY HEARING, VOL. 111 11-18-05

1 after 7: 00 0' clock on January the 1st, and I learned it

2 from the interview with Mr. Skinner. 3

MS. ODEN: No other questions, Your Honor.

THE COURT: Any cross?

MR. ROBINSON: Just one or two, Your Honor~

CROSS EXAMINATION

7 8

9 BY MR. ROBINSON: 10

Good afternoon, Detect i ve Young. Were you the

11 detective who was in charge of the investigation for the 12 Pampa police Department? I wouldn't necessarily say.I was in charge.

a joint cooperative affair.

It was

I was the one that was on

15 call the night that it occurred. were one of the detectives that did

16 Q And you

17 investigate this case, not only the night it occurred

18 but the ensuing days? 19

Yes, sir.

Did you ever interview Robert Donnell?

No, sir, not that I can remember.

Do you recall whether anybody else from the Pampa

23 police Department or the Gray County Sheriff's

24 Department ever interviewing Robert Donnell? 25

I cannot recall if they did or not ,sir.

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EVIDENTIARY HEARING, VOL. 111 11-18-05

MR. ROBINSON: That's all the questions.

2 Thank you. 3

MS. ODEN: That's all we have, Your Honor.

THE COURT: May this witness be excused?

MS. ODEN: Yes, please.

THE COURT: You're free to go.

Call your next

7 witness. 8

get

MS. aDEN: Connie Neighbors, and i'ii go

9 her, Your Honor. THE COURT: Take this oath, please, ma' am.

(Witness Sworn)

THE COURT: Step right up here and have a

seat. If you would, state your name and spell your last 14 name for the record.

THE WITNESS: Connie Neighbors,

16 N-e-i-g-h-b-o-r-s. 17 t

CONNIE NEIGHBORS. Called bv Respondent (Sworn)

1~ 19

DIRECT EXAMINATION

22 BY MS. aDEN: 23

Hi, Connie. Are you a little nervous?

I'm a li t tle more than that.

What do you mean a little more than that?

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

EVLDENTIARY HEARING, VOL. 111 11-18-05 1

800

I'm sitting in the same room with Hank Skinner, the

2 same town with him, and I want to go home.

3 Q Ms. Neighbors are you employed? 4

No, I'm not.

Tell us a little bit about your family. Do you

6 live with your family? 7

Yes.

Do you live in Pampa, Texas?

No, ma'am.

Are you comfortable telling us generally even the

I live with my sister and her husband.

11 state where you live? 12

Yes, I live in New Mexico.

Are you uncomfortable in giving out anymore

14 specific information on where you live? 15

I won't give out information.

And why is that?

Because Hank Skinner threatened me one time --

18 well, more than once, but this particular time he told 19 me that he didn't care if I lived and he lived to be 1.10 20 years old, he'd find me and make sure I paid the 21 ultimate price if I talked to the law about him killing

22 (inaudible) . 23

I understand that it takes a lot for you to be here

24 and if you need to take a minute, that's fine, just let 25 me know. BETTY TATE, 3101 TOWNBLUFF DR., #923, PLANO, TX. 972-596-9442

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EVIDENTIARY HEARING, VOL. 111 11-18-05

What is your relationship, or what was your

2 relationship to the defendant? 3

He was my husband at one time.

And when were y' all married?

We were married in October of '92 and divorced in

6 June of '94. 7

While you were married to him did you live with

8 him? 9

Yes, for part of the time.

Are you familiar with his habits and his ways?

I would say so.

Do you know whether or not he had this allergy to

13 codeine? 14

Well, my understanding -MR. OWEN: Objection, Your Honor.

I believe

16 the witness was asked if she knows.

THE COURT: Sustained.

(By Ms. Oden)

Go ahead and just listen to my

19 question. THE COURT: The question is do you know

21 whether he has an allergy to Codeine or not? 22

Yes, I know.

(By Ms. Oden) And do you yourself have an alLergy

24 to Codeine? 25

Yes, ma' am.

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

EVIDENTIARY HEARING, VOL. 111 11-18-05 1

802

Do you know anything about the defendant's drug and

2 alcohol habits around the time period of ' 93, ' 94? 3

Yes, I do.

Tell us what his habits were.

Those habits were to stay clean and sober a week or .

6 maybe two and then start drinking and drugging allover

7 again.

8 Q And when you say drugging, do you know specifically 9 what kind of drugs he would take?

10 A I don't know of anything that he wouldn't take. 11 Q Would he take pain pills?

12 A Oh, yeah. 13

Would he take illegal drugs?

14 A Oh, yeah. know whether or not he has a

15 Q You said that you

16 Codeine allergy. 17

Yes.

Has he ever taken Codeine in your presence, or that

19 you know of? 20

Not to my knowledge.

Has he ever talked to you about taking Codeine?

Yes.

What, if you recall, did he tell you about him

24 taking Codeine? 25

He told me that he wouldn' t take Codeine because it

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

EVIDENTIARY HEARING., VOL. 111 11-18-05

803

1 wasn't strong enough. 2

Did he take stronger medication than that?

Yes, he did.

Did you ever observe him to have any kind of

5 allergic reaction to pain pills or any other medication? 6

No.

And is that something you might yourself notice?

8 A i would if it was Codeine. 9 Q During the period of time that you were married to 10 him, did you find him to be a peaceable person?

11 A (Inaudible) . MR. OWEN: Obj ection, Your Honor, to

13 relevance. MS. aDEN: Your Honor, as we discussed, Lori

15 Brim isn't here and you/d allow us to recall rebuttal 16 witnesses in anticipation of her testimony by

17 deposition. l (/'.;.

MR. OWEN: And as we explained, Your Honor, we

1 f!

19 have no intention of questioning Ms. Brim during any 20 deposition or testimony about Mr. Skinner's peaceable

21 character or disposi tion. MS. aDEN:

In that case, Your Honor, the court

23 (inaudible) ask you to take judicial notice of her 24 testimony 25

THE COURT:

I'll sustain the obj ection because

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EVIDENTIARY HEARING, VOL. 111 11-18-05

804

if she does so testify the court will not consider it

for any purpose, to that issue.

Honor .

MS. ODEN: Thank you, Your

(By Ms. aden)

What is your relationship with a

lady named Andrea Reed?

A At the moment I have no relationship with Andrea.

At one time we were very, very close. We were best

8 9

friends. Q And in terms of what year or years that was, when

were you and Andrea very close friends?

A During the time period that I got sober in November

of 1990 through '94, when I went to Pampa.

Q So at the time of these murders you were living in

Pampa?

time.

Q Did you live in other small towns close by around

that time as well?

A Yes, I moved to Borger for a while and (inaudible)

and commuted back and forth to work.

Q When you say you and Andrea Reed were close

friends, did you guys talk about things that happened to

you on a regular basis?

A Yes, we shared practically everything. Q How often did you see or speak to Andrea Reed in

Yes.

I'm sorry, no.

(Inaudible) .

I was - - yes, I was at that

It has been a while.

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EVIDENTIARY HEARING, VOL. 111 11-18-05

805

1 late '93, early '94? 2 A I stayed with her for awhile during that time, but 3 I saw her almost every day. 4

Do you remember whether you were staying with her

5 December 31st, 1993, or January 1st, 1994? 6

I didn't stay wi th her that night.

Did you have plans to see her on those days?

Yes, I was going to stop

by there on New Years Eve

9 but I decided not to because I had got ten back from a

10 roof ing job too late. 11

So you used to work in roof ing?

Yes.

Did you go home that evening instead of going to

14 Ms. Reed's house? I went to another girlfriend's house. She was also

working on the same job.

Q When did you find out about the murders and the defendant's arrest?

It was about 8:00 or 8:30,8:45, sometime on

20 January 1st. 21

And how did you find out about them?

Andrea Reed practically broke our door down trying

to get in.

How do you know she was frightened?

She was shaking allover. Her jaw was shaking, her

She was frightened.

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EVIDENTIARY HEARING, VOL. 111 11-18-05

t:41. .'.

hands were shaking, she was - - she didn' t want to sit

down, she wanted to pace, and she was crying.

Q Did she tell you that that reaction was due to some

exciting or startling event that had happened to her?

Don't tell us what it was, but did she tell you that she

was reacting to an event?

A Yes. she was

Q And was that event close in time to when

recounting this to you?

A Yes.

Q What did she tell you that got her into such a

12 13

state? A That Hank had been at her house, that he was blood

allover, that his hand was cut, that

you what he told her, can I? Or can I?

Q Well, you can tell us if it was something that

exci ted her and made her upset, so if --

I can't tell

MR. OWEN: Objection, Your Honor. The here ~

predicate for that would require Ms. Reed to be

That's still hearsay with testimony that might otherwise

be admissible.

THE COURT: Overruled.

MR. OWEN: I'm sorry, Your Honor, my obj ect ion

was to any statement by this witness about what Ms. Reed

said that Mr. Skinner said would be hearsay.

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EVIDENTIARY HEARING, VOL. 111 11-18-05

THE COURT: Overruled.

1 2

(By Ms. Oden)

Go right ahead. What did Andrea

3 Reed tell you the defendant said to her? A

He told her that he thought he had killed Twila and

5 the boys and that he wanted her to help him sew up his

6 hand; that he had threatened her and her children, the 7 lives thereof, if she tried to call anybody or get out

8 of the situation. 9

Did she tell you anything about events that took

10 place at the police station that morning? 11

Yes. She said that when the --

First let me pause me and ask you this: Was she

13 upset or frightened or startled

by events at the police

14 station? 15

No.

Then in that case you can't talk about what

happened, what she told you about what happened at the

~ 1ö

police station.

Oh, okay.

How do you know that her upsetness and her

21 frighteness was because of the defendant? 22

Because Andrea was sober at the time, and she was

23 working the twelve step program very hard, and part of 24

our twelve step program is strict honesty.

She in no

25 way insinuated anything from the police department or BETTY TATE, 3101 TOWNBLUFF DR., #923, PLANO, TX. 972-596-9442

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EVIDENTIARY HEARING, VOL. 111 11-18-05

1 the sheriff's department or whatever it was. She was 2 talking solely about Hank and his actions with that ~ 3

Did she ever at any point give you the impression

4 that she had been threatened by the police, or coerced

5 by anybody in the D. A. 's off ice?

No, ma'am.

I don't have any other questions for you right now,

8 Ms. Neighbors.

ME. ODEN: Pass the witness.

THE COURT: Cross?

MR. OWEN: No questions, Your Honor.

THE COURT: May this witness be excused?

MS. aDEN: please.

THE COURT: You're free to go, ma' am.

Call

15 your next witness. MS. aDEN: Your Honor, if we could just have

17 five min-.tes so that we can get our next witness in. THE COURT: Well, I'm trying to f igur~ out

19 whether to take an afternoon break.

20 MS. ODEN: This would be a perfect time for

21 it. 22

THE COURT: All right. How many more

23 witnesses do you have after this? 24

MS. ODEN: Two others, Your Honor.

THE COURT: This one plus two or -BETTY TATE, 3101 TOWNBLUFF DR., #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. 111 11-18-05 1

MS. aDEN: No, two others.

THE COURT: Total.

809

i Your Honor, is

MR. ROBINSON: One rebuttal

4 all we'll have. MS. HAYES: And I believe we have at least one

6 stipulation to a witness' testimony, and possibly a

7 second, if we could work that out. THE COURT: All right, let's take a ten minute

9 recess.

10 (Short Recess) MS. ODEN: Your Honor, during the break we

12 were able to come to some agreements about some

13 evidence, but before we call our next wi tness, we've 14 agreed that Respondent's Exhibit 42 would be admitted, and it's already in the record.

It's just a page from

16 the transcript of the state i s writ hearing - - I'm sorry 17 pretrial hearing, the clerk's record actually, and .f

1ff: Respondentl s 42, unfortunately, are copies double-sided,

19 so it's actually going to be a problem -20

MS. HAYES~ The first page just indicates

21 which volume of the clerk's record that's found in. 22

THE COURT: What' s the significance?

MS. HAYES: It's an order by the court,

24 finding that the confession was made on January 1st

25 that Mr. Skinner had not requested an attorney. BETTY TATE, 3101 TOWNBLUFF DR., #923, PLANO, TX~ 972-596-9442

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EVIDENTIARY HEARING, VOL. 111 11-18-05 1

THE COURT:

This is what you're offering?

MS. HAYES:

Yes,

THE COURT:

It's an order dated March 9th,

sir.

4 1995? 5

MS. HAYES: Yes i sir.

THE COURT: Okay, admitted by agreement.

MR. ROBINSON: To make sure the record is

8 clear, whatever is on the other side of it is not being 9 offered and

is not

THE COURT:

I think on the other side it's

MS. ODEN:

It's just the cover sheet from that

THE COURT:

I don't think it's of any

11 just some 12

13 volume. 14

15 consequence but it's already there --

16 MR. OWEN: It is. 17 MS. ODEN: We also reached two stipulations on went over 18 what two witnesses would have testified, and I

19 this with counsel, but if I say something that you doti' t

20 recognize, obviously you'll object.

21 The first is that Jessica Reed, Andrea Reed's 22 daughter, if she had testified

she would say that she

23 agrees that she made a statement to the pol ice on

24 January the 1st, 1.994. That she at this point cannot 25 recall anything that she wrote in her police statement i BETTY TATE, 3101 TOWNBLUFF DR., #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. 111 11-18-05

811

1 given the time that i s passed since 1994, and that

2 whatever she said to the police in her January 1st

3 statement is what happened. 4

THE COURT: And are you offering that?

MS. HAYES: We haven' t discussed it but given

6 the need to know what's in the statement -I'm sorry, what's the question?

MR. ROB INSON:

MS. HAYES: Are we offering the actual

9 statement she gave to the police. MR. ROBINSON: We would have no objection to

11 that, Your Honor. THE COURT: All right, the stipulation

13 this stipulation agreeable to petitioner? MR. ROB INSON :

It's agreeable to petitioner

15 and her statement is Petitioner's Exhibit 3. THE COURT: The stipulation will be accepted

1 7 and Respondent's 6 is admi t ted. l

MS. aDEN: And the second stipulation is that

1~~

19 a witness named Wayne Carter, he served as the baîliff

20 for the 31st District Court, and he was the bailiff 21 during Mr. Skinner's capital murder trial. That 22 regarding the conflict

of interest claim, Mr. Carter

23 would testify that while the court was on a break durìng 24 the pretrial proceedings, Judge Sims brought up the need

25 to ask about whether Mr. Skinner wanted to be BETTY TATE, 3101 TOWNBLUFF DR., #923, PLANO, TX. 972-596-9442

812

EVIDENTIARY HEARING, VOL. 111 11-18-05

had 1 represented by Harold Comer, since Mr. Comer

2 prosecuted Mr. Skinner before, and Mr. Skinner stood up 3 and told th.e Judge that he had no problem ~i th Mr.

4 Comer, that he's a really good attorney, and that he had 5 no problem with Mr ~ Comer having prosecuted him two

6 times before, and that's all Wayne Carter remembers. THE COURT:

Is there a statement from him or

8 are you just reciting it? MR. ODEN: No, I'm just reciting it, Your

10 Honor. 11

MR. ROBINSON: We're stipulating that

that ' s

12 what he would testify to, if he came to testify. THE COURT:

MS. aDEN:

MS. HAYES: THE COURT:

17 (Witness Sworn) THE COURT: Have a seat up here, and state

19 your name and spell your last name for the record,

20 please. 21

THE WITNESS: My name is Katie Gerhardt,

22 G-e-r-h-a-r-d-t. 23 24

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

EVIDENTIARY HEARING, VOL. 111 11~18-05

813

1 KATIE GERHARDT. Called by Respondent (Sworn) 2

DIRECT EXAMINATION

5 BY MS. HAYES: 6

Good afternoon, Ms. Gerhardt. For the record would

7 you explain - - would you spell your first name? Is it

8 I-E? 9

K-a-t-i-e.

Thank you. Where did you work on January 1st,

11 1994? 12

I was working for the Pampa police Department in

13 Pampa, TexaS. 14

And what was your rank?

I was a Sergeant.

HOW long had you been a police officer?

I had been a police officer since December of 1984.

Do you work still £or pampa police, or are yoti

18f..

19 still a police officer? 20

My commission is still supposed to be active with

21 Roberts County but I am not employed as a peace officer

22 at this time. 23

And who do you currently work for?

I work for the Texas Department of Fami ly and

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

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EVIDENTIARY HEARING, VOL. 111 11 - 18 - 0 5 1

Did there come a time that you became involved in

2 investigating the Henry Skinner case?

3 A I was involved in the Henry Skinner c,a,se, yes. 4 Q In fact, weren' t you dispatched to the Twila Busby 5 residence just slightly hefore midnight on New Years

6 Eve, 19.93? 7

Yes, I was.

8 Q And after that in the early morning hours of 9 January 1st did you then go to Andrea - - the location

10 where Andrea Reed lived? 11

Yes, I did.

Ms. Reed has given an affidavit where she says that

13 she lied in a written statement that she made to the

14 police and in trial testimony because of threats or

15 intimidation by the police officers, so I'd like to talk 16 to you about some of those examples.

17 Ms. Reed said in her recanting affidavit that 18 she overheard you tell a neighbor not to enter Reeds 19 home because it was a triple homicide scene, or t~ipl~ 20 homicide crime scene. Does that sound familiar or do 21 you remember making a statement like that? 22

I do recall making that statement.

I do recall not

23 allowing people to come into that residence. 24

And the purpose would be for what?

To protect any evidence that might have been

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

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EVIDENTIARY HEARING, VOL. 111 11-18-05 by Mr . Skinner.

1 brought into the residence

So preserving the crime scene? Would that be a

3 good phrase or description? 4

Yes, it would.

When you made the

did you direct that comment to

6 Ms. Reed or was it direct - - or if you made a comment

7 like that, would it have been directed to other people

8 or just Ms. Reed? A

Well

i it was not directed towards her.

right to be there.

She had a

It was directed toward the neighbors

11 that were coming by. 12

Now, in Ms. Reedl s affidavit she said that I

13 believe both you and Bill McMinn kept asking her where

14 Skinner's accomplices were at. Let's start first, who 15 is Bill McMinn? 16

Mr. McMinn at that time i I be 1 ieve, was the

17 district at torney's investigator. if

18v!.'

And do you know if he is still the district

19 attorney's investigator? 20

No, he is not.

Do you know where he works now?

Yes, he is the Chief of police in I believe

23 Littlefield. 24

Now, did you in fact - - did you and Investigator

25 McMinn keep inquiring of Ms. Reed about whether Skinner BETTY TATE, 3101 TOWNBLUFF DR., #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING,

816

VOL. 111 11-18-05

1 had an accomplice? Do you remember anything like that? 2

No, I don't.

One point that Ms. Reed raised in her affidavit is

4 she said that Officer Gerhardt warned her that she'd be 5 charged as an accessory after the fact i or she could be

6 charged with harboring a fugitive. Do you remember ever 7 warning Ms. Reed or telling Ms ~ Reed that she couLd face

8 criminal charges? 9

NO, I don't.

When you say no, I don It, does that mean you don't

11 remember -12

I don' t recall ever having made any statements to

13 the effect. 14

There's another allegation by Ms. Reed that

15 apparently the District Attorney's Office used fear,

16 threatening to subpoena her daughter, Jessica, and one 17

of the allegations was supposedly - - it's directed to

Mr. McMinn but it says that she was promised thOere would

be no subpoena if she testified as instructed

Mann. Did you ever make a comment or tell Ms .

Jessica Reed would not be subpoenaed if she testified as

instructed by John Mann?

A No.

by John 0

Reed that

Did you have an opportunity to go and testify at

25 the trial in Mr. Skinner's case? BETTY TATE, 3101 TOWNBLUFF DR., #923, PLANO, TX. 972-596-9442

8 1 7 ___. ___o___~

EVIDENTIARY HEARING, VOL. 111 i1~18-05 1

Yes, I did.

And the trial was in Fort Worth; is that true?

Yes, it was.

And did all the state's witnesses and the District

5 Attorney's Office, all of it's personnel, all stay 6 together at the same hotel? 7

Yes, they did.

And was that in a good area of town, a safe area?

The hotel itself was good.

It was bordering on an

10 area that was not. 11

And when you say the area was not i what in

12 particular would call to your attention that that might

13 not be a good area? 14

Well, I do recall that one night there at the motel

15 there had been some shots fired from somewhere and there

16 was helicopters flying all around the motel, 17

spotlighting the motel.

It was pretty interesting.

t,,(,/

18 .

Did the police - - or did you take any actions based

19 on that event, when the helicopter was shoot ing,

20 regarding any witnesses or any of their conduct? 21

No.

Ms. Reed says in her affidavit that you insisted

23 that she share a hotel room wi th you when she came to 24 Fort Worth

for trial, and she said it makes her feel her that she was

2 5 like a prisoner. Did you ever instruct

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

EVIDENTIARY HEARING, VOL. 111 11-18-05 _8i8.~_~

l ,/L i\.'

required to stay with you in your room? Can you shed

some light on that?

offered to allow her to. May I tell

Q Please explain why.

A I had picked her up at the airport to take her

to the motel. That was part of what I was doing, and

all the way to the hotel she kept saying over and over

again how very afraid

No.

I didn't tell her that she was r~9uired to.

back

she was, that she was afraid that

Mr. Skinner would have her killed àirectly from his jail

cell, and although I told her numerous times that that

wasn't going to happen, she was terrified, and I told

her that she and - - I can't remember who it was that was

traveling with her, if they wanted to, that my room did

have two beds and I got one of them, but they could have

the other one if they wanted it, if it would make them

feel safer.

insisted that they do so.

Q On the night of the - - the early morning hou~s of.

January 1st, 1994, when you were at the Andrea Reed

loca t i.on, did you have a chance to observe or interact

wi th Ms. Reed at the scene?

A Yes. While I was there at the scene it was

basically to make sure that the scene was secure until

the criminal investigation division could get there to

I did make the offer but I certainly never

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

EVIDENTIARY HEARING, VOL. 111 11-18-05

819

1 collect evidence. During that time Ms. Reed kept coming

2 up and trying to tell me things 3

MR. OWEN: Obj ection, hearsay.

THE COURT: Overruled. Ms. Reed came up,

5 trying to tell you things. And I told her that she couldn't - - that I couldn't

7 wri te those things down, I couldn' t take her statement

8 because I was not in criminal investigation division,

9 that I was in patrol. 10

Then in turn did you direct her to go make a

11 statement, or go find people that could take a statement 12 from her? 13

I told her that she would be contacted by the

14 criminal investigation division and that she could give

15 her statement at that time. 16

And could you describe what her demeanor was when

17 you were dealing with her at the scene? l

(,1,/

1ir

Very nervous. She was very hyper, just back and

19 forth, back and forth, pacing the floor. 20

Were you there when Mr. Skinner was actually

21 arrested? 22

Yes, I was.

And could you describe his demeanor or how he was

24 behaving? 25

I was not able to see his demeanor because I was

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

820

EVIDENTIARY HEARING, VOL. 111 11-18-05 1

kind of in the back.

I know that I saw him when he was

2 arrested he was placed down on a mattress in the

3 bedroom. He was handcuffed, and he was vety quickly 4 removed from the residence. I didn't have a chance to 5 talk with him or to really see anything about him.

6 MS. HAYES: Nothing further of this witness.

7 THE COURT: Cros s? 8

CROSS EXAMINATION

11 BY MR. OWEN: 12

Good afternoon, Ms. Gerhardt.

Good afternoon.

When you were at Andrea Reed's house on the morning

there

15 of January 1st, ' 94, how many police officers were

16 at the time? 17

I'm really not sure.

Was it more than five?

I'm really not sure.

I don' t know if it was more than that.

It was right around five, but I believe it was

21 right around five. 22

Were any of the officers, or did any of the

23 officers, search her residence after Mr. Skinner was

24 taken into custody and removed from the residence? 25

We checked the residence to make sure that there

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

EVIDENTIARY HEARING, VOL. 111 11-18-05

821

1 was no one else in the residence that we were not 2 already aware of being there, and the rest of it we 3 pretty much stepped back to wait for CID to come in and

4 take whatever evidence they needed to take. 5

And the people that you were aware of being around,

6 if I'm understanding correctly your testimony, would be 7 Ms. Reed and her two children i is that correct? 8

Yes.

You had mentioned that when the witnesses and court

10 personnel were in Fort worth for Mr. Skinner's trial, 11 there was an incident at the hotel room when they were

12 going to the hotel, involving gunshots and the police

13 responding and helicopters and so forth. Do you have a

14 recollection of when that was in the events of the

15 trial? 16

17 l//

No, sir, I don't. MR.

OWEN:

Nothing further, Your Honor ~

1~'

THE COURT:

May this witness be excused?

MS. HA YES:

Yes, Your Honor.

MR.

THE COURT:

You're free to go.

MS. HAYES:

Call Tracey Jennings.

OWEN:

Yes, Your Honor.

(Wi tness Sworn) THE COURT: State your name and spell your

25 last name for the record, please. BETTY TATE, 3101 TOWNBLUFF DR., #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. 111 11-18-05 1 2

THE

822

WITNESS : Tracey Jennings,

J-e-n-n-i-n-g-s.

TRACEY JENNINGS. Called bv Respondent (Sworn)

4 5

DIRECT EXAMINATION

6 7 8

BY MS. HAYES:

Q I think every wi tness I've had has had a unique

spelling of their first name. Would you also spell your

first name, please?

A T-r-a-c-e-y.

Tracey Blades?

A Yes.

Q And was that your name when you were wi th the

District Attorney's Office?

A Part of the time, correct.

Q Were you an Assistant District Attorney for Gray

Coun ty?

A Yes.

Q And were you there at the time the time that Mr.

Skinner's capital murder case was being investigated?

A Yes.

Q And when he was actually at trial too?

,l fc.,

And are you

did you previously go by the name of

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

EVIDENTIARY HEARING, VOL. 111 11-18-05

823

Yes.

Are you still with the District Attorney's Office?

No.

Where do you now work?

I'm in private practice in Bowie, Texas.

There were some allegations raised by Andrea Reed

7 that supposedly she felt threatened or intimidated when

8 she went and gave testimony. There's also an allegation 9 that supposedly she had testified from a script, or a

10 condensed version. Did you interview or talk to Andrea 11 Reed about her trial testimony? 12

Yes.

In the process of talking with her would you have

14 used the police statement that she made? 15

I would assume so, yes.

What other materials, if any, would you have

17 actually used when you were talking with Andrea Reed? l/l 18'1:

I don't know that we would have talked about

19 anybody else's statement or any of the other evidénce.. 20 It probably would have been just going over the contents

21 of her statement. 22

Now when you say first statement, was there only

23 the one statement, the pol ice statement, or was there 24 any other vers ion that you had? 25

We had the wri t ten statement (inaudible).

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

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EVIDENTIARY HEARING, VOL. 111 11-18-05 1

II do you mean Q

When you say "the written statement,

2 the writ ten statement that she made to the police

3 officers? 4

Yes.

Is there any sort of scripted version or condensed

6 version that you might have ever used? 7

No.

Were you - - as part of the prosecution team, were

9 you in Fort Worth for trial when it was going on? 10

Yes.

Were there any events that occurred at the hotel in

12 Fort Worth that had to do with a shoot ing inc ident? 13

Yes.

Were you there when the incident happened?

I think I was there at the time all that was taking

place. I can't recall (inaudible). 17 Q To your memory can you recall whether or not there

18 were any special precautions taken as a result ~f the 19 shooting incident? 20

I know that there was just discussion in terms of

21 being aware, being careful and trying not to go anywhere

22 by yourself or at night or anything like that. 23

Would that be a reasonable or unreasonable request

24 for people to maybe watch out for their safety? 25

Oh, yes (inaudible).

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

825

EVIDENTIARY HEARING, VOL~ 111 11- 18 -05 1

We talked before the interview - - or we talked

2 before we came here about something that had to do with

3 a breakfast offer to Andrea Reed. Do you remember 4 something about an offer for breakfast? A

The situation was that anyone, when we'd get up and

6 go to breakfast, we'd go to the restaurant in the lobby of the hotel and eat.

It was just basically at either

8 6 : 00 or 6: 30 or whatever (inaudible), you can come or

don't.

I wouldn' t (inaudible).

So you can come if you want or don't.

It was

11 optional for her if she wanted to come downstairs and

12 eat? 13

Right.

You never personally tried to get her out of the

15 hotel room to go somewhere with you, as like a guard

16 situation, did you? 17

No.

I want to talk to you about the conflict of

i 1ft.

19 interest claim that's been raised. Were you present ~t 20 the time that Mr. Skinner was arraigned on the capital

21 murder charges? 22

Yes.

Do you recall at any point in pretrial proceedings

24 where the subj ect of Mr. Comer's prior prosecution of 25 Mr .

Skinner ever came up?

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

826

EVIDENTIARY HEARING, VOL. 111 11-18-05 1

Yes.

What do you recall about that?

I recall that we were in the big courtroom and I

4 think it was after the arraignment hearing, and there

5 was two minutes worth of (inaudible) and I was taking

6 the plea. Where we sat in the courtroom it was right 7 when you come through the bar area, the prosecut ion

8 table was just right there and then to the right was the

were over there (inaudible)

9 defense counsel, and they

10 what I recall, I was gathering my stuff up, and I want 11 to say - - I don't know where John was during the

12 arraignment -- John Mann -- I don't think he was sitting 13 over there, I don't think he was present and there was those

guys to my

14 some exchange between the bench and

15 right, just in terms of talking about that (inaudible) 16

Do you remember any specific comments being made by

17 the Judge or by anyone involved about specifically 18 regarding the prior representation? I can' t remember who said what or who said what or A 19 20

first about that.

I just know just in general there was

21 a conversation. 22

Do you remember any comments made by Mr. Skinner at

23 the time regarding Mr. Comer's representation? 24

I don' t remember any specific comments, but if

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

8 2 7. uO ___~_.~

EVIDENTIARY HEARING, VOL. 111 11-18-05

MR. OWEN: Objection, Your Honor, speculation.

THE COURT: Sustained. Nonresponsive

3 (inaudible) . (By Ms. Hayes)

enough.

The first part of it was good

If Mr. Skinner, at the time of his capital

6 murder trial had tried to challenge the prior

7 convictions that were admitted against him in 8 punishment, what kind of - - as your experience as

9 assistant district attorney, what kind of information or

10 things would you do in response to that, or would you 11 have a response? 12

We ll, the response would have to be (inaudible)

13 officers cross ex.amination in terms of statements that

14 had previously been made by defendant. THE COURT: Unless you know of something more

Mr. Mann said, this would be cumulative.

16 than what

MS. HAYES: That's exactly what I wanted to

j 1/. establish, that she

was going to say just what Mr. Mann

was. We just got her right to that point.

So that's

20 it, I have nothing further of this wi tness. 21

THE COURT: Cross?

22 23 24

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

EVIDENTIARY HEARING, VOL. 111 11-18-05

_ a 2J3___~

CROSS EXAMINATION

1 2 3

BY MR. OWEN:

Q Good afternoon. When you met wi th Ms. Reed to

prepare her testimony in Fort Worth, as I understood

your testimony on direct, the focus of the conversation

with her was about her statement to the police on

January the 1st of 1994; is that correct?

A Yes.

Q And although I know you probably don't remember

exactly what was said, would it be fair to say that the

tenor of your conversation with her was that she would

be asked generally about

statement?

A Yes, and if there was anything that we had a

question about or - - again, in that conversation she

said something (inaudible) ~

the matters that were in that

l 18

Q Well, you certainly I imagine communicated to her

that your expectation was, that what was in the

statement was what she would say in response to your

questions?

A Yes.

Q Did Mr. Mann ever meet with Andrea Reed at any

point during the pretrial process, as far as you know?

A I want to say we were both there. BETTY TATE, 3101 TOWNBLUFF DR.,

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

829

EVIDENTIARY HEARING, VOL. 111 11-18-05

So at this conversation you believe that both you

2 and Mr. Mann were present? A

I think so.

MR. OWEN: No further questions, Your Honor.

THE COURT: Anything else?

MS. HAYES: Just one question~

RE-DIRECT EXAMINATION

8 9

10 BY MS. HAYES: 11

If John Mann testified that he never interviewed

12 Andrea himself -MR. OWEN: Obj ection.

Calls for

I'm not

sure she's allowed to ask a witness to comment on

testimony of another witness, who is not an expert.

THE COURT:

sustained.

MS. HAYES:

Nothing further.

MR.

THE COURT:

OWEN:

No questions, Your Honor.

I just have one or two. Did you

20 meet wi th Ms. Reed once or more than once before she

21 testified, or do you remember? 22

THE WITNESS: We would have had the ini t ial

23 meet ing in the courtroom, but now In Pampa?

THE COURT:

THE WITNESS: No, sir, in Fort Worth at the BETTY TATE, 3101 TOWNBLUFFDR., #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. 111 11-18-05

830

1 time of trial, and then I'm just saying that at some 2 time, depending on how quickly things went, I probably 3 would have spoken to her again but I don't remember when 4 we would have got ten that information. 5

THE COURT: At any time do you ever recall Ms.

6 Reed telling you that the information in the police

7 statement was inaccurate and not true? 8

THE WITNESS: No.

THE COURT:

Any other questions?

MR.

No, Your Honor.

THE COURT:

Do you have any other questions?

MS. HAYES:

No, Your Honor.

THE COURT: You may step down. May this

OWEN:

14 witness be excused? 15

MR. OWEN: Yes, Your Honor.

MS. HAYES: Yes, sir.

THE COURT: Your excused from further

18 attendance. Next witness? 19

MS. HAYES:

We're finished for the respondent.

THE COURT:

Do you rest?

MS. HAYES:

We do.

THE COURT:

Rebut tal?

MR. ROB INSON: Yes, Your Honor. We'd like to

24 re-call Dr. William Lowry. 25

THE COURT: Be seated. You're the same BETTY TATE, 3101 TOWNBLUFF DR., #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. 111 11-18-05

831

1 William Lowry who previously testified? 2

THE WITNESS: Yes, sir.

THE COURT~ You understand you're still under

4 oath? 5

THE WITNESS: Yes, sir.

THE COURT: You may proceed.

WILLIAM LOWRY. Re-Called by Petitioner (Rebutt.al)

8 9

RE-DIRECT EXAMINATION

12 BY MR. ROBINSON: 13

Dr~ Lowry, were you in the .courtroom yesterday when

14 Dr. Michael Chamales testified? 15

Yes, sir, I was.

Do you remember Dr. Chamales testifying about the

17 blood alcohol and the various patients that he had l~/

1~. seen 19

Yes, sir.

And testified I believe to the effect that he has

21 seen alcoholics walk into the emergency room with blood

22 alcohol contents of .4 and .6? 23

Yes, sir.

Do you believe that that testimony is - - that it's

25 possible that somebody could walk into a hospital BETTY TATE, 3101 TOWNBLUFF DR., #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. 111 11-18-05

832

1 emergency room wi th a blood alcohol level -2

No, sir.

Would this be true even of a alcoholic (inaudible)?

Yes.

What would you believe their condition would be,

6 based upon your toxicological knowledge? 7

.4 would have been brought in on a stretcher and

8 emergency life saving maneuvers would have taken place.

9 .6 would never have been achieved because the patient

10 would have died at, .5 or slightly above. 11

Do you know of any instances reported in the

12 medical li terature where a person has survived a blood 13 alcohol level of a .5? 14

No.

Do you know of any instances in the medical

16 literature where patients have been known to have .4

17 alcohol levels and been in anything other than a life 18 threatening situation? The only ones that I've ever seen have been in the

morgue.

The highest I've ever seen in the emergency

21 room, which I spent 12 ye.ars in Parkland, was a .34. what was the condition of that patient?

And

He was a regular alcoholic.

He was stuporous, and

24 would come in about every six weeks or so, and he's the

25 only one that I've ever seen not comatose at that level. BETTY TATE, 3101 TOWNBLUFF DR., #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. 111 11-18-05

833

1 We saw him for maybe a couple of years, and he probably

2 died because he never showed up again. 3

Were you here when Dr. Chamales testified that it

4 is improper to use calculations from a known point in blood alcohol (inaudible) t or content level at a

5 time of

6 known point (inaudible) backwards? 7

Yes.

What is your response to that testimony?

That's been utilized and accepted calculations for

10 over 30 years. THE COURT: That w.asn' t the doctor's testimony

12 to my recollection. MR. ROBINSON: That's .our recollection of his

14 testimony. THE COURT: He testified that there was an

16 improper use of backward calculation on Codeine but I

17 don't believe he testified to that alcohol. t

MR. ROBINSON:

1!i 19

(By Mr. Robinson)

I'm sorry.

How about on the Codeine,

20 Doctor? 21

Unless there's evidence to show that any drugs has

22 been given during the period of time, which none was 23 given, it's proper to do (inaudible) back calculat ionS,

24 and that too has been done for over 30 years. record but that THE COURT: 25 I'll look into the

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

EVIDENTIARY HEARING, VOL. 111 11-18-05

834

1 was my recollection.

2 MR. ROBINSON: Well, that's fine, and I'll 3 accept that, Your Honor, and I'll THE COURT:

I mean it's pretty standard to

5 make a calculation on alcohol. MR. ROBINSON: And I think Dr. Lowry has

7 testified now on Codeine as well.

8 Q (By Mr. Robinson) Were you here when Dr. Chamales 9 testified - - did you hear his testimony that Codeine is

10 a synthetic opioid? 11

Yes.

Is Codeine a synthetic opiate?

No, it's one of - - it was the second alkaloid

14 identified from an opium poppy. Morphine was first

15 identified in 1803, isolated and identified. Codeine 16 was second I believe it was 1836. 17 Q Dr ~ Lowry, were you here yesterday when Dr. 18 Chamales testified that when persons who are allergic to 19 Codeine or Morphine, that it is improper to prescribe

20 synthetic narcotics? 21

Yes.

And do you have an opinion as to whether or not

23 that statement is true? 24

I do.

And what is that opinion?

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

835

EVIDENTIARY HEARING, VOL. 111 11-18-05 A

The statement is not true.

Synthetic opioids were

2 prepared to try to reduce the adverse effects of Codeine 3 and Morphine as a substitute for those, and i~' s

4 perfectly common practice to substitute Hydrocodone for

5 a person having an adverse effect and reactions to

6 Code ine and/or Morphine. 7

What do you base that conclusion on?

I base that conclusion on cases I've seen,

9 including my mother, other physicians, internal medicine

10 physicians, emergency room physicians, and board

11 certified medical toxicologists. 12

Tell us about the case of your mother.

MS. aDEN: Obj ection, Judge, relevance.

THE COURT: Does it have to do with Codeine

15 and Hydrocodone? 16

MR. ROBINSON: Yes, it does, Your Honor.

THE COURT:

t ..,

My mother

Overruled.

was one who did not like taking

19 medications and every time she was prescribedsomethirig 20

she would talk to me about it and get my opinion.

21 was prescribed some Codeine for back

She

pain and she had an

22 adverse response, it made her real nauseous and dizzy, 23

and the physician changed that to Hydrocodone.

I gave

24 her the okay and she took it and she was perfectly fine. 25

Dr~ Lowry, since Dr. Chamales testified here

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

EVIDENTIARY HEARING, VOL. 111 11-18-05

836

1 yesterday have you had an opportunity to speak to

2 prescribing physicians of your knowledge and 3 acquaintance to confirm whether or not your initial 4 opinion that Hydrocodone is a substitute prescribed to to Codeine is a common and proper

5 people with an allergy

6 pract ice? 7

Yes.

And were the results of those conversations?

Each one said it's common practice and it iS

10 indicated in the clinical practice to do so. 11 Q Dr. Lowry, have you also had a chance to re-consult 12 the medical literature to confirm or deny your initial 13 opinion that Hydrocodone is an appropriate medication to

14 prescribe to people who have an allergy to Codeine? 15

Yes.

And what is your conclusion in reviewing the

17 medical literature? 18

Tha tit

like I' ve stated~ it's perfect 1y

19 indicated to do so. 20

Dr. Lowry, were you here when Dr. Chamales - - I

21 asked Dr. Chamales whether he consulted any medical 22 literature before he had come here to give his testimony

23 and he said he consulted a medical treatise, and I've 24 forgotten the name of it. Do you remember the name of

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

EVIDENTIARY HEARING, VOL. 111 11-18-05

8 3 £. ____~~

It was a pharmacological textbook. The

2 pharmacological Basis of Therapeutic, Goodman & Gilman. 3

Is Goodman & Gilman a standard text that is used in

4 the medical profession to, among other things, determine 5 what the composition is and the appropriate uses for its

6 medications? 7

Yes.

Since Dr. Chamales testified - - well, first of all,

9 before he testified -- before you testified, did you 10 consult this medical text as a basis of forming your 11 opinion? 12

Yes, I did.

And since both you and he testified yesterday, have

14 you gone back to this text to consult it to see if 15 there's anything in there at all that would support Dr. 16 Chamales' opinion? 17 i

Yes, I did.

1l:

What did you conclude from that reading?

Found no support.

In fact, did you bring that textbook wi th you

21 today? 22

Yes.

And could you pick it up and show it to the court?

24 Is there - - were there any other respects in which you

25 considered Dr. Chamales' testimony to be rus.ty as far as BETTY TATE, 3101 TOWNBLUFF DR~, #923, PLANO, TX. 972-596-9442

.8 3a~-~

EVIDENTIARY HEARING, VOL. 111 11-18-05

1 whether or not he is current or knowledgeable about

2 pharmacology? 3

Not that I recall.

Do you recall that he testified about Xanax?

Oh, yeah. He did -- you asked him, I believe, what

6 is Xanax and he said it was Diazepam. Diazepam is

7 actually Valium. MS. ODEN: Objection, Your Honor. He's

8 9

mischaracterizing the wi tness' testimony. misheard.

Perhaps he

I think he said a Benzodiazepine

11 tranquilizer. THE COURT:

I actually don't recall, but you

13 may cross examine him. 14

(By Mr. Robinson) Well, what is Xanax, Dr. Lowry?

Xanax is Alprazolam and the dosages are

16 significantly different than what Benzodiazepine

17 tranquilizers are. 18

Dr. Lowry, since we spoke last - - not since we

19 spoke last, but since you heard Dr. Chamales' testimony

20 have you had an opportunity to consul t medical texts 21 other than the one that he relied upon, to reconfirm

22 your opinion that Hydrocodone is prescribed on a regular 23 basis and should be prescribed for those who are 24 allergic to Codeine?

25 A The ones that I consulted with prior to his BETTY TATE, 3101 TOWNBLUFF DR., #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. 111 11-18-05 1

testimony.

839

I re-checked them and I still found no

2 support for his testimony. 3

In fact, did you find any medical treati~es or

supports the notion that

4 texts that affirmatively

5 Hydrocodone is appropriate to be prescribed for those

6 who report an allergic reaction to Codeine? 7

Well, yes, in the Clinical Immunology text it

8 supports that other opioids may be substi tuted,

9 synthetic opioids may be substituted for the natural

10 opioids. 11 12

MR. ROB INSON :

Your Honor.

I believe that's all I have,

Pass the witness.

MS. aDEN: No questions.

THE COURT: You may step down. Any other

15 rebuttal witnesses? 16

MR. ROBINSON: No other rebuttal witnesses,

1 7 Your Honor. 1~'

THE COURT: Close?

MR. ROBINSON: Close, Your Honor.

THE COURT: Any sur rebuttal?

MS. aDEN: No, Your Honor.

THE COURT: Close?

MS. ODEN: Yes. Al though, I would request,

24 Your Honor, when you say close, are you talking about a 25 closing argument? BETTY TATE, 3101 TOWNBLUFF DR., #923, PLANO, TX. 972-596-9442

840

EVIDENTIARY HEARING, VOL. 111 11-18-05

MR. ROBINSON: Actually, Your Honor, I spoke

1 2

too soon. We still have the issue of Lori Brim, but

other than that, we close.

THE COURT: Okay. But you have no other

4 5

testimony or documentary evidence today?

MR ~ RO~INSON: Not today, Your Honor.

THE COURT: Nor do y' all?

MS. aDEN: No, Your Honor, although I would

say if we are going to technically be keeping this open

I anticipate that Mr. Watson will be able to obtain some

electronic data in some form, and I would like to be

able to provide that to defense and Dr. Shields as soon

as I have that available.

THE COURT: (Inaudible)

MS. ODEN; And I anticipate that means they Potentially Mr.

may want to have another affidavit.

Watson may want to file another affidavit.

t 18

THE COURT: Well, we'll just kind of have to

see about (inaudible).

deadlines for Miss Brim and deadlines for post-hearing

briefing.

I want to set something up on .

MS. ODEN: Yes, sir.

THE COURT: Before we get into that, though. --

MR. ROBINSON: Your Honor, also one thing. If

you don' t mind, if you could give us just a little bit

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

EVIDENTIARY HEARING, VOL. 111 11-18-05

841

1 of time to go over our exhibit list and make sure we've

2 got everything in that we need in --

3 THE COURT: I want you both - - I want all 4 counsel to come up and give the clerk the exhibits and 5 make sure that the exhibits are admitted, if in fact 6

submitted (inaudible).

I'm going to give you five

7 minutes to do that.

8 (Short Recess) 9

THE COURT: okay, I think that I'm going to

10 seek to have Lori Brim's deposition taken by December

11 2nd; is that correct? 12

MR. OWEN: Yes, Your Honor.

MS. aDEN: Yes, Your Honor.

THE COURT:

In your agreed issues to be heard,

15 which is the issue of privilege of mail and it was the 16 opinion of the court that unless you develop something

17 more than you've presented today, that you have nothing

18 else to present? 19

MR. ROBINSON: That's correct, Your Honor.

THE COURT: And I'm going to set a briefing

21 deadline of 12-30, post hearing briefs 12-30-05 and you 22 can reply to each others brief by 1 - 1 0 - 06, and I think 23 that all part ies agree that we would be better served.

24 (inaudible) . 25

MR. ROBINSON: Well, Your Honor, I would SETTY TATE,3101 TOWNBLUFF DR., #923, PLANO, TX. 972-59~-9442

842

EVIDENTIARY HEARING., VOL. 111 11-18-05 1

actually (inaudible).

I would have no obj ection if we

2 did have another argument here after this week, and I 3 would not obj ect to coming down --

(Inaudible) .

THE COURT:

MR. ROBINSON: Oh, today, right, yes.

THE COURT: We' 1 1 leave it open.

( Inaudible)

7 reserve oral arguments (inaudible). Now I believe you 8 indicated you were going to be ordering a transcript? MR. ROB INSON: Correct, Your Honor.

THE COURT: All right. Mr. Skinner, the

11 lawyers who have represented you on this case has been 12 appointed by the court, I believe, al though (inaudible) 13 pro bono (inaudible). They have been appointed by the 14

court. You didn' t hire these lawyers.

I guess we can

15 enter an order appoint ing (inaudible). MR. ROBINSON:

I think you entered an order

17 approving my pro hac vice appearance.

18 THE COURT: Are you satisfied with these

19 lawyers in the evidentiary hearing? MR. SKINNER: Yes i Your Honor, I guess I am.

Yeah, I expect so.

I'm sure I couldn't have done it

22 better. 23

THE COURT:

I s there something you i ve got a.

24 problem with or something you disagree with? 25 MR. SKINNER: Well, we had a question about BETTY TATE, 3101 TOWNBLUFF DR., #923, PLANO, TX. 972-596-9442

843

EVIDENTIARY HEARING, VOL. 111 11-18-05 whether I was going to testify.

I didn't agree with

2 them but I did what they said. MR. ROBINSON: Your Honor, so the record is

4 clear on this, we advised him that he has the right to

5 testify and it was his decision to make, and he is

6 correct that we advised him not to testify. THE COURT: That is exactly what they should

do.

It is your decision, not theirs, but they're your

9 lawyers and they advised you. 10

MR. SKINNER: Yes, sir.

THE COURT: Is that what you said?

MR. SKINNER: That's exactly what I said. Did

13 I not say it right? THE COURT: No, I'm just -- are you satisfied

15 with that? MR. SKINNER: No, Judge, I'm not satisfied but

17 I'll have to defer to their advice. NO,I'mnot

l/ t

18" satisfied. 19

THE COURT: Well, you understand it's your

20 decision. You say you followed your lawyers' advice.

21 Is that true or not? 22

MR. SKINNER: That's true, yes.

It was my

23 decision, Judge, but I follow their advice. 24

THE COURT: All rìght. Thank you. Anything

25 else from the petitioner? BETTY TATE, 3101 TOWNBLUFF DR., #923, PLANO, TX. 972-596-9442

EVIDENTIARY HEARING, VOL. 11111-18-05 1

MR.

THE COURT:

MS. ODEN:

THE COURT:

OWEN:

844

No, Your Honor.

From respondent? No, Your Honor.

Mr. Robinson, as you know or may

not know, the court is not always able to find

lawyers - - we can generally find lawyers to take these

cases, and you and your firm agreed to take this case

pro bono and it's in the service of the bar, and we

appreciate it. MR. ROB INSON: Thank you very much, Your

Honor.

THE COURT: Anything else?

MS. ODEN: No i Your Honor.

THE COURT: we'll be in recess.

15 16

(Hearing Concluded)

19 20

22 23

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

EVIDENTIARY HEARING, VOL~ 111 11-18-05 1

2 **** 3

4 TRANSCRIBER'S NOTE: 5

6 Judge Averi t te 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

14 15 16

17 I, Betty Tate, certify that the foregoing is a correct t,r

1~ transcript of Vol. III from the electronic sound

19 recording of the proceedings in the above-entitled 20 ma t t e r . 21 22 23

January 3, 2006

Á: dw.

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