1.Sherry Culhane — Cross/Redirect (Part 2)

MR. STRANG: Good morning. As well, Steven Avery is in person and Dean Strang and Jerome Buting representing.

MR. BUTING: That is correct, your Honor.

MR. BUTING: Thank you, Judge.

MR. BUTING: Good morning, ma'am.

MR. BUTING: I want to pick up on where you left off on Friday, and that is your opinions, series of opinions about the stains that you found in the RAV4. Okay, are you with me?

MR. BUTING: Your opinion, over and over to Mr. Gahn was, do you have an opinion to a reasonable degree of scientific certainty as to whether Mr. Avery is the source of the DNA found in stains one, two, three, whatever it was, right?

MR. BUTING: And what you are really saying is, that as far as you can tell, Mr. Avery is the original source of the DNA that you find in those stains, correct?

MR. BUTING: Right. But what you are not saying is anything about how his DNA found its way inside the RAV4, are you?

MR. BUTING: Your tests aren't designed to tell us how his DNA found it's way into the location where you ultimately swabbed, are they?

MR. BUTING: What you are looking for is a DNA profile, and if you find it, then you compare it to a known reference sample, in this case, Mr. Avery, right?

MR. BUTING: But if someone else planted Mr. Avery's DNA, or blood, or both, inside that vehicle, you wouldn't know that from these tests, would you?

MR. BUTING: So you cannot tell this jury, with any degree of certainty, scientific or otherwise, that Steven Avery was, himself, ever inside that vehicle, can you?

MR. BUTING: No meaning correct?

MR. BUTING: All right. You also talked about contamination, and I think you used the word unintentional contamination; do you recall a discussion about that?

MR. BUTING: All of the quality controls that you set up inside the Wisconsin Crime Lab are designed to deal with evidence after it arrives at your lab, correct?

MR. BUTING: You can't do anything about contamination that might occur to evidence before it gets to your lab, right?

MR. BUTING: And that would be true for unintentional contamination such as an officer who's sloppy at the scene when he's picking up whatever evidence it may be?

MR. BUTING: Your tests and your quality control doesn't -- can't account for that, right?

MR. BUTING: And that also would be true as to intentional contamination that occurred before it gets to your lab as well, right?

MR. BUTING: Once again, so you have no way, through your quality control tests, controlling whether or not there's some intentional, deliberate tampering with the evidence that goes -- that takes place before it gets to your lab?

MR. BUTING: So if the evidence had been intentionally contaminated or tampered with, before it got to your lab, your tests will not show that; isn't that right?

MR. BUTING: Now, I'm assuming that you would agree with me on this, that normally evidence that you receive from a -- an agency that is police is -- you are assuming that when you get it that the -- that there's good integrity with that evidence, right?

MR. BUTING: That is, you trust the police to be honest and fair in an investigation, generally, right?

MR. BUTING: Just as we and the jury would trust you and other members of the Wisconsin Crime Lab to be honest and fair in your investigation?

MR. BUTING: And the reason that we can normally be comfortable with that assumption, with regard to your Crime Lab, is that you would never knowingly assign an analyst to examine case evidence who had some connection to a suspect, would you?

MR. BUTING: And I'm sure, for instance, you, yourself, if you had been deposed as a witness in a lawsuit brought by a suspect, you would not volunteer to be the person who runs the tests in that case, would you?

MR. BUTING: And you would -- If you knew that one of your other analysts was also similarly situated with regard to a suspect, you would not assign that analyst to be handling the evidence and making the tests that are done in the case, would you?

MR. BUTING: Sure. Because it's important for you that your lab be objective in its results, correct?

MR. BUTING: And you are aware -- you said that you go to meetings, forensic scientists test meetings and that sort of thing, right?

MR. BUTING: You are aware that some labs in other parts of the country have had trouble with that, right, where analysts have been actually accused of falsifying results?

MR. BUTING: Well, I think it goes to her procedures here.

MR. BUTING: (By Attorney Buting)~ Well, would you agree with me that if somebody in your lab was so predisposed, it would be very easily -- very easy for that person to frame a suspect?

MR. BUTING: (By Attorney Buting)~ If somebody in your lab wanted to monkey with the evidence and plant it in a way that deliberately framed a suspect, that could be done, couldn't it?

MR. BUTING: (By Attorney Buting)~ If somebody wanted to take and deliberately contaminate evidence, once it got to your lab, deliberately contaminate evidence, and let's say, put or mix a reference sample from the suspect, with actual evidence in the case, that could be done, couldn't it?

MR. BUTING: Sure.

MR. BUTING: Of course not. Because you take steps to be sure that the person assigned to the case would have no such inclination to do so; isn't that right?

MR. BUTING: And you take steps to be sure that the person assigned to the case has no stake in the outcome of the testing itself or the case?

MR. BUTING: If she needs clarification she can ask.

MR. BUTING: You take steps to be sure that the person assigned to a case has no stake in the outcome of the case or the test?

MR. BUTING: All right. And, indeed, it's your assumption that when evidence comes to you from a police agency, it's your assumption that the police have also taken similar stakes -- or similar steps to make sure that nobody connected with the suspect has been involved in the collection of the evidence, isn't it?

MR. BUTING: Asking for her assumption.

MR. BUTING: And collected from somebody who had no connection to the case, you would hope?

MR. BUTING: Okay. Now, in this case, I believe you said that some of your duties involve case flow and case management, right?

MR. BUTING: Does that also involve assigning particular analysts to a particular case?

MR. BUTING: But in this case, you assigned yourself?

MR. BUTING: All right. And that's a decision that you make, and yours alone?

MR. BUTING: All right. Mr. Gahn pointed out that you were actually the analyst who did the tests that resulted in exoneration of Mr. Avery in 2003, right?

MR. BUTING: And you did that because -- in part, because newer, more accurate DNA results -- or tests had been developed that actually excluded Mr. Avery as the source of a pubic hair?

MR. BUTING: Okay. But I want to get into just a little bit about what that involved. What you tested were pubic hairs that were found, essentially, on -- in the area of the victim's privates, right?

MR. BUTING: These are combings that are done to find any possible pubic hairs from the assailant?

MR. BUTING: And your test in 2003 absolutely, positively, excluded Mr. Avery as the source of one of those hairs, right?

MR. BUTING: There was no question about that, right?

MR. BUTING: And it included -- or matched, a fellow by the name of Gregory Allen, right?

MR. BUTING: And you knew that Allen was no friend of the victim, so that his pubic hair shouldn't be found where they were, right?

MR. BUTING: Okay. But you knew that his hairs -- or that his DNA profile was registered in CODIS.

MR. BUTING: And that, in fact, he was already in prison at the time of 2003 when you did this test?

MR. BUTING: In prison for a rape that he committed after, or while Mr. Avery sat in prison for Mr. Allen's crime.

MR. BUTING: Now, what Mr. Gahn didn't have you point out, though, let's get into a few other things; although you were the one who exonerated -- or whose test exonerated Mr. Avery, the evidence sat at your lab for more than a year before you got around to doing the test that did exonerate him, right?

MR. BUTING: And one of the things that you in fact said you do is control priorities and case flow of what gets tested when, right?

MR. BUTING: So, had you done that test as soon as it came in, the evidence being in September of 2002, I believe, Mr. Avery would have been exonerated then, wouldn't he?

MR. BUTING: So Mr. Avery sat for another year, in prison, because of the delays that resulted in your Crime Lab; isn't that right?

MR. BUTING: Another thing Mr. Gahn didn't point out is another irony in this case. Not only were you involved in the 2003 exoneration of Mr. Avery, but you were also involved in the 1985 conviction of Mr. Avery, weren't you?

MR. BUTING: And you testified as a witness for the prosecution at trial in that case, didn't you?

MR. BUTING: In fact, the trial where he had 16 alibi witnesses and was convicted included your expert opinion regarding some hairs that had been found and were offered by the prosecution to somehow link Mr. Avery to that crime; isn't that right?

MR. BUTING: Well, I have it here, if you need to refer to it. But I don't know that we'll get into that much detail.

MR. BUTING: I just want the jury to understand a little background, okay?

MR. BUTING: You do recall that you testified, generally, in those terms, right?

MR. BUTING: Okay. And just so we understand, there were no DNA tests back in 1985?

MR. BUTING: You were testifying about a type of so-called science known as microscopic hair comparison analysis, right?

MR. BUTING: And the theory behind that science, in 1985, was that you could take a microscope with two fields and that you could put one hair underneath one microscope field and another hair under the other, and you could examine the two of them together, correct?

MR. BUTING: And the theory being that you could -- you present this to the jury anyway, that you could make some conclusions about how similar, dissimilar, or consistent one hair was to the other?

MR. BUTING: And I don't mean to be jumping all over you, you were not the only person in the country doing this kind of testimony in 1985, right?

MR. BUTING: Forensic labs all over the country were bringing in experts to testify to juries about this kind of science, right?

MR. BUTING: Including the FBI, right?

MR. BUTING: Now, with the advent of DNA, the forensic community discovered something about those tests, right?

MR. BUTING: They discovered that those conclusions or opinions that were being drawn by the experts, such as yourself, were really not all that reliable, didn't they?

MR. BUTING: All right. And even wrong on occasions, right?

MR. BUTING: So, for instance, in the 1985 trial of Mr. Avery, there were some hairs found, head hairs I think, found on a T-shirt that he was wearing on the day of this poor woman's rape, right?

MR. BUTING: Well, okay. Do you recall giving an opinion that one hair found on Mr. Avery's T-shirt appeared to be similar to or consistent with a head hair standard of the victim in that case?

MR. BUTING: Would you like to take a moment to review --

MR. BUTING: -- a portion of your transcript?

MR. BUTING: Mr. Gahn tried to present her as a totally unbiased witness for them, in the event that because she -- her test in 2003 resulted in the exoneration, I think the jury needs to hear that she's also testified the other way for the prosecution at the beginning of the trial.

MR. BUTING: Also a question on her opinion and the validity of her opinions.

MR. BUTING: All right.

MR. BUTING: (By Attorney Buting)~ Let's do it this way. Would you agree with me that at least -- that hair comparison, microscopic hair comparison, so-called forensic science, is one example of how science is not necessarily or -- or our understanding of science is not necessarily infallible, is it?

MR. BUTING: Okay. But at the time you were presenting testimony you expressed it in terms of a reasonable degree of scientific certainty, didn't you?

MR. BUTING: Well, in general, whether in Mr. Avery's case or any of the other cases where you presented this kind of hair comparison testimony, you presented opinions to juries or to Courts, to a reasonable degree of scientific certainty, didn't you?

MR. BUTING: As to which, asked and answered or relevance?

MR. BUTING: All right.

MR. BUTING: (By Attorney Buting)~ When you talked about DNA and what it is and how it's examined, you mentioned -- Oh, by the way, before I leave that, to your knowledge, your lab isn't going around doing those kind of -- providing that kind of testimony anymore, hair comparison testimony anymore, are you?

MR. BUTING: And neither is the FBI, right?

MR. BUTING: Okay. But going back to DNA, you said that -- and I don't have your -- the power point slides, but I think the jury can probably recall them -- you showed this double helix kind of spiral thing being unwound and bracketing off certain areas of it, right?

MR. BUTING: And you talked about a part that was considered a gene and a part that is not a gene, or something like that?

MR. BUTING: Okay. And -- Well, I don't know if you got into this or not, but let's just briefly touch on this. When we're talking about genetics, you recognize that certain genes are inherited by everybody, right? The genes, for instance, that make humans have two eyes instead of one, right?

MR. BUTING: Two arms instead of one?

MR. BUTING: Or two legs, right?

MR. BUTING: There were certain genes that are common to everybody, unless there is some sort of birth defect or genetic mutation, right?

MR. BUTING: And so, if you find a gene that says -- that determines that this individual should have two eyes, or two legs, or two arms, that's kind of meaningless in terms of identifying a suspect, isn't it?

MR. BUTING: I understand.

MR. BUTING: But if you were to look at genes that everybody has and find them in a profile, that would be meaningless?

MR. BUTING: For your purposes?

MR. BUTING: As you would say, that would have zero discriminating power?

MR. BUTING: Okay. And other more common types of genes, however, are sort of individually inherited. Like the gene that would say what color your hair should be, may be different from what someone else has, right?

MR. BUTING: Or what your eye color may be, right?

MR. BUTING: Or how tall or how short you are, ultimately, going to be when you grow up?

MR. BUTING: Those are sort of more individual genetic characteristics that are inherited at different rates in the population?

MR. BUTING: Same thing with whether you are Type A, or Type B blood, or Type O positive, or whatever?

MR. BUTING: And there are data banks, then, statistics that can say, you know, what are the odds, or what are the chances of finding, you know, a random man population, somebody with blue eyes?

MR. BUTING: You are a serologist, so let me focus on that. There are statistics that talk about -- that tell you what percentage of the population is Type A blood?

MR. BUTING: And type B and so forth, right?

MR. BUTING: And those are well-known statistics that have been developed over years of study?

MR. BUTING: Now, in fact, we know, or we're learning, what genes actually determine someone to be -- to have certain characteristics, physical or biological characteristics, right?

MR. BUTING: Some diseases we're finding are based on a particular gene someone may have, for instance?

MR. BUTING: Now, with DNA tests, you talked about this area that's not really what you call a gene, but you called it a genetic marker, right?

MR. BUTING: And it's an area of the DNA that's -- appears to be, I think you used the term hyper variable; do you recall that?

MR. BUTING: Okay. But you also said that we don't know what those -- what that portion of the DNA is even about, why it's there, do we?

MR. BUTING: We don't know what it does, why we would have a marker that would be the D21, blah, blah, blah, number that you come up with in these tests?

MR. BUTING: These are just things that we think, at our current level of scientific knowledge, are rather unique from one person to the next, when you put them altogether?

MR. BUTING: Okay. But if science later determines that they are not completely, independently inherited, that they are linked together, that would really make a difference for you, wouldn't it?

MR. BUTING: Because all of these 1 in a quintillion, or 1 in a billion numbers you come up with are based on the assumption that each one of those 16 numbers on your power point slides are inherited completely independent of each other?

MR. BUTING: That is, if someone has a D21 16, they are not necessarily going to be -- also have a VWA 12?

MR. BUTING: All right. Let's talk about the testing process just a little bit first, then we'll get into it in more detail. The jury, I think, needs to understand that the tests that you do in your lab, or anyone does in your lab, are not what we would call double blind tests?

MR. BUTING: Or even blind tests, you never heard that term?

MR. BUTING: Well, okay. Let's say, on a proficiency test that you get, that's sent to you from some lab, outside lab, you have no idea what you are testing, right?

MR. BUTING: You have no idea what's the suspect sample, what's the elimination sample. You don't know any of that when you do the tests, right?

MR. BUTING: Okay. So, those aren't completely blind either. Let me give you an example what I mean by blind. Someone gives you a sample, two reference standards. And you have no idea who the suspect is and who the extremely unlikely elimination sample is?

MR. BUTING: All right. And then you get an evidence sample, that's also unknown at that time?

MR. BUTING: If you just got those three samples and you are just testing them, you have no idea which is which, that's what I mean by blind testing?

MR. BUTING: All right. That's not what you do in your lab?

MR. BUTING: In your lab, when you get a reference sample, you know -- in fact, you usually know the name of the person whose reference sample you are dealing with?

MR. BUTING: So when you test Mr. Avery's DNA sample, you knew it was Mr. Avery who you were testing?

MR. BUTING: Or Delores Avery in her case?

MR. BUTING: Or Allen Avery in his case, right?

MR. BUTING: And you know that, and not only do you know who it is you are testing, but you have some idea whether they are considered a suspect in the case or not?

MR. BUTING: You know that because you talk with police and prosecutors?

MR. BUTING: Oh, okay. So when you get it, you already know who the suspect is?

MR. BUTING: And in this case, there was a suspect and the name given to that person was Steven Avery, when it came to your lab; isn't that right?

MR. BUTING: Not only that, you get messages, phone messages and phone conversations, in this case with Mr. Fassbender, right?

MR. BUTING: And he kind of gives you a heads up on what to look for and, you know, what happened, what they think happened in the case, or at the scene?

MR. BUTING: And in this case, you got a number of phone calls and messages from Mr. Fassbender, kind of early on in the testing, right?

MR. BUTING: I'm showing you Exhibit 341, does that look -- does that form look familiar to you?

MR. BUTING: This is something that's called a case communication record?

MR. BUTING: Something that you use in your lab?

MR. BUTING: And what you do is, when you get a phone call from somebody, you will keep jotting notes as to the gist of the conversation?

MR. BUTING: And did you do that in this case?

MR. BUTING: Is that your initials at the top?

MR. BUTING: Let me put this up on the ELMO. There we go. All right. I apologize for the delay. Up on the screen, now, is Exhibit 341. And this is one of those phone messages that you got from, in this case, Mr. Fassbender, correct?

MR. BUTING: You've got a place to indicate that, where it says you check incoming, Fassbender's name, and the date of this is November 11th of 2005, correct?

MR. BUTING: And the very first thing that is indicated on here is, he is telling you that there's some evidence that is going to be coming or is already here, right?

MR. BUTING: Here meaning at your lab?

MR. BUTING: And he says there's going to be a couple of items from the house and the garage, right?

MR. BUTING: And then he says -- or you wrote down, I assume that's him telling you -- try to put her in his house or garage, correct?

MR. BUTING: So you are being told, before you do any of these tests, that Mr. Fassbender wants you to come up with results that put Teresa Halbach in Mr. Avery's house or garage; isn't that right?

MR. BUTING: Of course not, but that's what you are being told to do?

MR. BUTING: That's what Mr. Fassbender told you he hoped you would be able to do with your tests; isn't that right?

MR. BUTING: Okay. You also had some emails with Mr. Kratz, correct?

MR. BUTING: Actually, before we get to that, let me do one more here.

MR. BUTING: I'm showing you Exhibit 342, would you be able to identify that for us?

MR. BUTING: That's another one of those case communication records?

MR. BUTING: But this one, though, is dated December 15th?

MR. BUTING: Concerns another phone conversation with Mr. Fassbender?

MR. BUTING: Mind if I put it up on the ELMO now?

MR. BUTING: This is, again, an incoming call where Mr. Fassbender is calling you, right?

MR. BUTING: Now, the first entry we should clarify a little bit, it says swab keys and collect swabs, no need to analyze at this time, right?

MR. BUTING: Just so we're not confused, the jury is not confused, that is not in reference to this Toyota key that was brought to you earlier, right?

MR. BUTING: That was a completely separate test that was done. This is some other keys that they brought to you?

MR. BUTING: It also says, like a couple days later, four days later, that Mr. Fassbender wants you to swab handcuffs and leg irons, right?

MR. BUTING: As well as the license plates from the RAV 4 and to check the .22 caliber gun, Item DD, for any indication of the victim's blood on the barrel, right?

MR. BUTING: And also to swab the trigger guard area to compare with Steve Avery?

MR. BUTING: And we'll get into this with a little more detail with some of the other things first, but as long as we're at these phone messages, let me just clear this up. You did do that in this case, right?

MR. BUTING: You swabbed the handcuffs and the leg irons?

MR. BUTING: And you found no DNA of Teresa Halbach on those items, did you?

MR. BUTING: And you swabbed the license plates and you found no usable DNA that you could draw any conclusions from, right?

MR. BUTING: And you checked the Item DD, .22 caliber gun, that's a rifle, right?

MR. BUTING: You looked for any blood of the victim on the barrel, right?

MR. BUTING: You found no DNA of Teresa Halbach on that barrel?

MR. BUTING: You looked at the trigger guard as well, not just the trigger guard, but the trigger itself?

MR. BUTING: You swabbed both, right?

MR. BUTING: And you found no DNA of Mr. Avery, right?

MR. BUTING: Okay. And as to the handcuffs and leg irons, you did find some DNA on it, though, didn't you?

MR. BUTING: You found Mr. Avery's own DNA?

MR. BUTING: In a mixture with some other male, right?

MR. BUTING: Well, it wasn't a mixture with Teresa Halbach?

MR. BUTING: And the fact that you found DNA of any kind on the handcuffs, is an indication to you that they hadn't been wiped down with bleach, isn't it?

MR. BUTING: Okay. And you, of course, had no idea, way of knowing how old that DNA that you did find, from Mr. Avery, on those handcuffs or leg irons was, right?

MR. BUTING: That's one thing about DNA, when you find a profile, you can't tell when it is -- or when it was originally deposited, correct?

MR. BUTING: You find DNA sometimes in mummies thousands of years old.

MR. BUTING: Okay. Now, I have used the term elimination samples today. I don't believe you used that term yesterday -- or Friday; do you recall?

MR. BUTING: With Mr. Gahn, you referred to samples as exemplars or reference samples, correct?

MR. BUTING: That's because the term elimination samples has a meaning behind it, that the others don't?

MR. BUTING: Elimination sample is something that you refer to when you are just trying to eliminate somebody as a source?

MR. BUTING: Right. So in that circumstance, there would be -- it's just sort of assumed, there's really no question or doubt, that the sample that you are looking at has nothing to do with the case?

MR. BUTING: Right. With the understanding that that person you are trying to eliminate is not a suspect?

MR. BUTING: Okay.

MR. BUTING: May I go ahead and mark this so we know what we're talking about. I will mark this one because it's not highlighted.

MR. BUTING: Just by way of explanation, what I'm attempting to do at this point is show Ms Culhane an email that she received. I guess it's from Mr. Kratz. I do not intend to actually offer this into -- Well, I don't intend all the content of this email to come into this case, or to be sent to the jury, but I do wish one particular line of it where Mr. Kratz is telling the witness certain samples that he refers to as elimination samples. That's my only purpose. I don't know if counsel objects to that limited use.

MR. BUTING: I don't know if we need to send the witness out at this point. If there's any lengthy argument, we will otherwise.

MR. BUTING: If she can recall it and if she can say she's aware that they were described in those terms, sure, we can do that.

MR. BUTING: We could just say submitted by the State, whether it's police or prosecution is -- is not disclosed.

MR. BUTING: Okay. Are we ready to go?

MR. BUTING: No, this is all.

MR. BUTING: Sure. There are other items that I'm not going to introduce.

MR. BUTING: Yes. And just so the record is clear, I'm not going to offer this as an exhibit. It's been marked, for the record, but this will be one of those where it's just part of the record, but it's not evidence in this trial.

MR. BUTING: Is that fair? Okay.

MR. BUTING: Thank you, your Honor.

MR. BUTING: (By Attorney Buting)~ Now, Ms Culhane, you received a number of samples, not just Mr. Avery's, to compare the various pieces of possible evidence in the case, right?

MR. BUTING: And when you received a sample -- that is a DNA standard of Chuck Avery -- first let me establish that you did. You received an exemplar standard of Chuck Avery, Earl Avery, and Bobby Dassey, right?

MR. BUTING: Among some others?

MR. BUTING: Like the parents, Mr. and Mrs. Avery --

MR. BUTING: -- right? And when you received those samples, you were asked to do a profile for each of them, right?

MR. BUTING: And when you were asked to do a profile for each of them, those samples were referred to you as elimination standards, correct?

MR. BUTING: Which to your mind, and your understanding, would seem to indicate that you were not to consider any one of those three, Chuck, Earl, or Bobby, as suspects?

MR. BUTING: Sure. So if you get something that is told to you by the police as an elimination standard, and it hits, it matches some kind of crime scene evidence, you are going to report that, of course, right?

MR. BUTING: But the very fact that the items come to you with that designation, elimination standard, tells you something about what the police theory, or what they believe those samples relate to, whether they are a suspect or not?

MR. BUTING: Okay. Let me go back for a minute and talk about your background. I don't recall what exhibit it is that is your curriculum vitae, but I just want to clarify a few things. You have got a bachelor's degree in biological science; is that right?

MR. BUTING: And you actually went to two colleges, though. Your first college was Millsaps, M-i-l-l-s-a-p-s, College in Jackson, Mississippi?

MR. BUTING: You went there for just two years?

MR. BUTING: And then you transferred to Mississippi College to complete your undergraduate education, right?

MR. BUTING: Are you originally from that area, is that why you were going to school down there?

MR. BUTING: Okay. And then you got your bachelor of science in 1978?

MR. BUTING: You did not go on and get a master's degree, right?

MR. BUTING: Never in all your years since, have you gone back to try and get a master's?

MR. BUTING: I don't see anything in your CV that shows that you worked as a research scientist, right?

MR. BUTING: You have little or no publications in the field?

MR. BUTING: Okay. And I don't see in here that you do any kind of public speaking, or teaching to other forensic scientists, outside of your own lab, in Wisconsin?

MR. BUTING: Okay. But that's the only time?

MR. BUTING: And we'll talk a little bit more about validation in a few minutes. It's not really clear to me what jobs you had before you came to Wisconsin. Was it just working at the Jefferson Parish Sheriff's Office Crime Lab, or did you have some other employment between 1978 and 1984?

MR. BUTING: Okay. And now it's been 23 years that you have been on the job at the Wisconsin Crime Lab?

MR. BUTING: And your current title is DNA Technical Unit Leader?

MR. BUTING: A position that you were appointed to in 1997?

MR. BUTING: Now, is that a position that requires -- Well, obviously, doesn't require a master's degree, right?

MR. BUTING: Okay.

MR. BUTING: Okay. So you were sort of grandfathered in with this other way of getting some additional educational miles, right?

MR. BUTING: Okay. So it's kind of a seniority thing, too, because you have been there longer than most people?

MR. BUTING: Okay. Now, this current position as technical leader, you discussed as having some administrative duties, right?

MR. BUTING: And also some training duties?

MR. BUTING: And then, also, some actual DNA testing?

MR. BUTING: Can you tell me what percentage of your job involves each?

MR. BUTING: So about 30 percent less case load, generally, than the other analysts?

MR. BUTING: Okay. Let's talk about quality control, what you know about it in your lab, and just in general. You talked a lot about accreditation, right?

MR. BUTING: How important that is?

MR. BUTING: How rigorous the process is, right?

MR. BUTING: And one part of that is -- in fact, a big part of it, is these outside auditors, whatever you want to call them, outside overseers, look at the protocols that you are using to do certain tests, right?

MR. BUTING: And the -- there's various, I assume, accrediting type boards in different forensic fields?

MR. BUTING: Okay. And certainly part of that is DNA protocols, right?

MR. BUTING: But more than that, it's also what other kind of test protocols your lab is following?

MR. BUTING: Yes, other sections.

MR. BUTING: Okay. So, for instance, fingerprints, whatever that's called, identification division?

MR. BUTING: They have a specific protocol or number of steps they follow in order to come to a conclusion, right?

MR. BUTING: Ballistics the same way?

MR. BUTING: DNA, the same way?

MR. BUTING: And like trace -- let's say, one subsection of the trace division seems to be like volatile chemicals?

MR. BUTING: So, in other words, there's -- in order for -- let's say someone comes -- brings in evidence from an arson, and the Crime Lab is asked to do these chemicals tests to determine whether there might be volatile chemicals like gasoline or something like that?

MR. BUTING: Okay. And there's a protocol that they have to follow in order to do that test?

MR. BUTING: And these protocols are developed after a lengthy process, right?

MR. BUTING: They are peer reviewed?

MR. BUTING: And peer reviewed means that they are published so that other scientists, even in other parts of the country or world, can also try the same protocol and see if they get the same result?

MR. BUTING: They want to replicate, they want to be able to do the very same tests elsewhere and find that the results are valid and reliable?

MR. BUTING: Okay. And that's really -- that's part of the scientific process?

MR. BUTING: Just in general, the whole idea that someone comes up with a theory, until it can be tested and repeated by others, it's just a theory, right?

MR. BUTING: And it becomes science after others have been able to test the theory over and over and replicate it, right?

MR. BUTING: And sometimes that can take years before something rises to the level where it's considered science in the community, right?

MR. BUTING: And that's true of protocols, a protocol is a plan, basically, a plan or method in which to test some item to get to a particular end result; would that be fair?

MR. BUTING: And those can take years, certainly months, sometimes years, to test over, and over, and over, to be sure that others can get the same results?

MR. BUTING: Sure. But the development by the -- in your example was a reagent, or use of a reagent. But development by that chemical lab can take quite a while?

MR. BUTING: And you don't pick it up as something to use in your lab until it's already been -- until you are satisfied that it's been tested, retested, and it's a valid reagent.

MR. BUTING: Now, these audits you mention, these audits are something that are done for government labs as well as private labs, right?

MR. BUTING: So, it's not like government labs are somehow exempt from the usual examination of auditors just because they are government, right?

MR. BUTING: We don't just say, you know, we're the government, trust us?

MR. BUTING: You guys have to prove your validity, your reliability, scientifically, like any other lab?

MR. BUTING: That's true of the Wisconsin State Crime Lab, right?

MR. BUTING: It's true of all government labs that you are aware of?

MR. BUTING: Okay. And this whole accreditation process involves auditors at the very beginning getting the protocols, the test plans, and reviewing those before they ever get to your lab, right?

MR. BUTING: And only then, if those protocols pass the peer review, at least that level of peer review from outside auditors, do they even take the next step of coming to your lab?

MR. BUTING: So if you came up with a brand new protocol, never before done anywhere in the country, and you sent it off to these auditors and it had never been peer reviewed, what do you think they would say?

MR. BUTING: Well, I think this witness can testify, she's a scientist that was involved with quality control in her lab. I think I should be allowed to explore her understanding and knowledge of the development of protocols.

MR. BUTING: (By Attorney Buting)~ Okay. Have you ever, in your lab, submitted a brand new protocol for a test that had never been done anywhere else in the country?

MR. BUTING: All right. And so you are comfortable with the protocols because of that.

MR. BUTING: And you would not submit a brand new protocol, never done before, for your DNA test, and expect to pass accreditation with that, would you?

MR. BUTING: (By Attorney Buting)~ All right. So let me move on a little bit. Your auditors come after they get the protocols and they check out the lab, right?

MR. BUTING: They check out the analysts, by way of proficiency tests?

MR. BUTING: And they also check out security and that whole process?

MR. BUTING: Like chain of custody?

MR. BUTING: Let's talk about that for a moment. Wisconsin's Crime Lab's chain of custody procedure, I believe you testified the agency submits it, usually police, bring it into your lab, some central gathering person, right?

MR. BUTING: What do you call them?

MR. BUTING: And what they do is, they look at the evidence. You said they make sure it's sealed, right?

MR. BUTING: They give it one of these numbers, or you call them numbers but they are often letters, right?

MR. BUTING: Okay. So the lab number in this case is -- well, I don't expect you to have it memorized, but it's M05-2467.

MR. BUTING: Okay. Then you do have it memorized. And then as the items come in they get named, or designated, item A, B, C, all the way through the alphabet?

MR. BUTING: Then they start getting called AA, AB, AC all the way through the alphabet that way?

MR. BUTING: Where do they go after that, B?

MR. BUTING: BB, BC, BD, and you keep on going.

MR. BUTING: And in this case, probably you got higher designations than any other case that's ever come to your lab?

MR. BUTING: Three hundred fifty you said, right?

MR. BUTING: And when that happens, when it first comes in, this evidence specialist not only gives it a designation, but then fills out some kind of form that verifies the evidence has come into the lab, right?

MR. BUTING: And at the end of the case, or whatever, at whatever point your lab decides to send the evidence back to the submitting agency, they submit another -- or fill out another form, right?

MR. BUTING: And that form is called an Evidence Release Return Form?

MR. BUTING: Excuse the witness, please.

MR. BUTING: Should I mark it?

MR. BUTING: Judge, what it is is a record regularly kept in the course of her business. She's going to be able to easily identify it. She's talked about the 2003 exoneration. It shows that Mr. Avery's buccal swabs --

MR. BUTING: Yes. It shows that Mr. Avery's buccal swabs, that used to be in the custody of the Crime Lab, were sent back to the Manitowoc County Sheriff's Department in 2003.

MR. BUTING: Well, this witness has testified that there's DNA found on items that she said she didn't see any blood, which could have come from buccal swabs. So she's already testified to that, so it's in play, whether or not the Manitowoc Sheriff's Department had any of Mr. Avery's DNA in another form, which they did.

MR. BUTING: That would be the subject of testimony later, I suspect. But at this point, all I'm doing is showing that they are not still at the Crime Lab, that they were sent back to the submitting agency, in this case, Detective Remiker.

MR. BUTING: Judge, this is not new. We have alleged -- Look, they brought up, on direct, that there was DNA that she discovered that she said did not appear to come from blood. So it had to come from another source. This is another source, that according to this record at least, was sent back to Manitowoc County Sheriff's Department. And we will tie it up later when we establish that it is in fact still in the Manitowoc Sheriff's Department, or at least it was as of October -- or November 5th, whatever, 2005.

MR. BUTING: Judge, I don't mean to cut counsel off, but it is in response to testimony they elicited here, that some of it, some of the DNA apparently did not come from blood. Now, we have a right to respond to that and this is a response. It is not an explanation for the blood in the RAV 4.

MR. BUTING: Maybe an explanation for some of the other.

MR. BUTING: Thank you. What time did you say?

MR. BUTING: All right. Thank you.

MR. BUTING: Now, Ms Culhane, we were talking about, before the break, about this process that you go through when -- your lab goes through when evidence is brought in from the agency and, actually, also, when it's returned to the agency, correct?

MR. BUTING: I'm showing you Exhibit 344, can you identify that?

MR. BUTING: Okay. And this is a regular record that's used by your lab in the course of business, day-to-day?

MR. BUTING: Okay. And it's meant, as part of a chain of custody, to document where evidence goes, who has it at any given time?

MR. BUTING: When you're done with it, you want to make sure it's clear you are done with it, it is no longer your responsibility, from that point on?

MR. BUTING: All right. I'm just going to put up here, on the ELMO, Exhibit 344. And this has a case number on it, rather old case number, right?

MR. BUTING: I'm sorry, let's move over here.

MR. BUTING: And the 85 -- M85, 85 refers to the year of the case that it's submitted to you?

MR. BUTING: So that would be 1985?

MR. BUTING: So this is actually an Evidence Release Form relating to Mr. Avery's 1985 conviction, right?

MR. BUTING: And the last item number, W, designated W, at the bottom there, says one sealed envelope containing -- I always call it buccal, is it buccal?

MR. BUTING: Buccal. Containing buccal swabs reportedly recovered from Steven Avery, right?

MR. BUTING: And by this form, what you are saying is that -- moving it to show the date here -- the date is October 13th of 2003, right.

MR. BUTING: Sure. Let me zoom out of it, maybe we can see. Does that help?

MR. BUTING: Okay.

MR. BUTING: And the name of the person who is signing it is Detective Remiker, or Dave Remiker?

MR. BUTING: Manitowoc Sheriff's Department, right?

MR. BUTING: That's the printed name and then there's a signature next to it, which I assume you can't identify yourself?

MR. BUTING: Do you know Mr. Remiker?

MR. BUTING: Okay. So, what this document tells you, then, is that on -- in September of 2003, you returned Mr. Avery's buccal swab reference sample to the Manitowoc County Sheriff's Department?

MR. BUTING: Okay. Now, back to the internal chain of custody. When the evidence first comes in to this evidence specialist; we saw a name up there, Sue Glitchel, I think it was?

MR. BUTING: G-l-i --

MR. BUTING: G-i-t-c-h-e-l. Fran Lutz is another one?

MR. BUTING: L-u-t-z?

MR. BUTING: Anyway, they take it and they put it in some sort of communal storage room; is that what happens?

MR. BUTING: And that's a locked room?

MR. BUTING: That only certain people can come and go?

MR. BUTING: Those people include the individual DNA analysts, right?

MR. BUTING: No?

MR. BUTING: So when you need to go work on something that's a part of evidence that's been brought in, you have to go check in with the evidence custodian?

MR. BUTING: Okay. And somewhere it's marked that you now have custody of it, rather than the central storage?

MR. BUTING: Okay. And then when you take it, you or any of the analysts take it into your possession, you bring it over to your lab bench?

MR. BUTING: Do you have some sort of storage lockers there?

MR. BUTING: And can you just describe what those are, what they look like?

MR. BUTING: The lab benches are about 6 feet long?

MR. BUTING: Okay. And is there more than one on each bench?

MR. BUTING: Okay. When you say cupboards for storage, these are like drawers?

MR. BUTING: Okay. There's shelves underneath the bench you are actually working on?

MR. BUTING: That's the lab bench where you are doing certain tests?

MR. BUTING: Extractions usually?

MR. BUTING: Okay. And are these cupboards or these shelves you are talking about, are they -- they have doors on them?

MR. BUTING: Are they like open wire mesh kind of doors?

MR. BUTING: Solid doors?

MR. BUTING: And they have locks on them?

MR. BUTING: And there's two separate shelves, or two separate cupboards?

MR. BUTING: Okay. And each analyst has two of those?

MR. BUTING: And that's so that if you are working on one big case, you don't mix up the items from that case with some other case you are working on?

MR. BUTING: So you wouldn't mix one case -- evidence from one case that you are working and put it in the same cupboard with another?

MR. BUTING: Sure. All right. So you -- you do try and keep the evidence from one case all together?

MR. BUTING: Okay. And so in this case, when you would be working on any of the evidence in this case, you would try and keep all of the evidence that's not up on the bench, you would try and keep it all in one cupboard?

MR. BUTING: All right. And is the key that only you have to the cupboard, or do all the analysts keys work on the same cupboard?

MR. BUTING: And the key works for all of these cupboards?

MR. BUTING: So you could open up someone else's cupboard?

MR. BUTING: Or they could open up yours?

MR. BUTING: Okay. Not that you would want to, but I'm just trying to establish that for the record?

MR. BUTING: Now, when you take evidence out of your cupboard and start working it on your bench, is it always put back at the end of the day and locked in the cupboard?

MR. BUTING: Sometimes you have tests and things that work overnight, right?

MR. BUTING: All right. Now, in this case, you worked a little bit differently with regard to the RAV 4 stains, because you are the one who actually took them in?

MR. BUTING: So instead of the police department delivering swabs of these stains, that you would then check out from the evidence custodian, it didn't work that way?

MR. BUTING: What happened was, on November 7th, I believe?

MR. BUTING: Monday, you come down to the garage and you see there's this RAV 4 there, Toyota RAV 4?

MR. BUTING: And you are there after Mr. Groffy, right?

MR. BUTING: He's already done his photographs and processing before you ever touch it?

MR. BUTING: And you testified that you took a number of those swabs, a number of stain swabs. You mentioned a -- I forget what the last number -- actually the last number was A-23, right?

MR. BUTING: So you actually took 23 swabs in different areas, some of them the same areas?

MR. BUTING: I see what you are saying. So what you are saying is, you took A-1, A-2, A-3, A-4, up to where, 12?

MR. BUTING: Okay. And then Mr. Riddle, Michael Riddle?

MR. BUTING: He's the fingerprint guy?

MR. BUTING: He examined it. And when he would find fingerprints on it, he would give those a designation like A-13 or A-14.

MR. BUTING: Okay. And then there is a stain, a swab that you took, though, that's designated A-23?

MR. BUTING: And that's because Mr. Riddle found something he thought maybe you should take a look at and swab.

MR. BUTING: So Mr. Riddle found something, fingerprints or whatever, that he designated A-15 through A-22?

MR. BUTING: Okay. And you came in and did this last one?

MR. BUTING: Okay. And then you took all these swabs, you said they were in like a test tube holder, to dry?

MR. BUTING: Did you package them there at the bench in the garage, or did you take it back to your department, your bench, to package?

MR. BUTING: So they were dry already?

MR. BUTING: Okay. And these swabs, just so we're clear, they're like Q-tips?

MR. BUTING: Longer?

MR. BUTING: Okay. So then you took the swabs that you found from the RAV 4, the 14, and you brought them directly to your lab bench?

MR. BUTING: And then into your storage locker?

MR. BUTING: Okay. And, then, once they were dried and you were -- Well, you did some tests with them, I'm sure. But once you were done with doing those first round of tests in November, you put them in your storage locker?

MR. BUTING: You didn't return them or place them in central storage?

MR. BUTING: Why don't you look. Why don't you look at -- you have the Chain of Custody Report?

MR. BUTING: Look at Page 1 of 50?

MR. BUTING: It's the Chain of Custody Report, just look at the first page.

MR. BUTING: First page lists A, A-1, 2, 3, 4, 5 -- I'm sorry, 4-A.

MR. BUTING: Right?

MR. BUTING: And A-1, A-2, A-3, were all determined to be Teresa Halbach's DNA, if you recall?

MR. BUTING: Those were the swabs from the blood in the back, and the rear of the cargo?

MR. BUTING: And four as well. Okay.

MR. BUTING: And those were in your custody until when?

MR. BUTING: Okay. And so, then, on that date, you returned them to the central storage area with the evidence specialist?

MR. BUTING: But from November up to April 3rd, they were sitting in your storage area of your lab bench?

MR. BUTING: Yes. But in that same compartment all together?

MR. BUTING: With whatever other evidence you had on the Avery case, all in that same cupboard, right?

MR. BUTING: Okay. Then, if you look ahead maybe to Page 38 of your Chain of Custody Report, directing your attention to Item FL as in Larry, FL?

MR. BUTING: Now, you previously testified about that, that's the bullet fragment?

MR. BUTING: Right?

MR. BUTING: That's the one that you say you found Teresa Halbach's DNA on?

MR. BUTING: That came into your lab on what date?

MR. BUTING: And it came into your custody from that central room on what date?

MR. BUTING: Okay. And then you actually started working on it the next day, March 29th; isn't that right? Do you need to refer to your case notes?

MR. BUTING: That's fine.

MR. BUTING: Okay. And, then, one of the things you do in that -- first thing is you open it up and take a look at it, right?

MR. BUTING: You unseal the -- whatever it is, and in this case it was like a little plastic bag, right?

MR. BUTING: And you then began -- we'll talk about it more later, but at that point you began the process of extraction amplification and, ultimately, figuring out a profile?

MR. BUTING: And that's the test that we later -- we heard later, at some point in the process, was contaminated with your DNA?

MR. BUTING: Proficiency tests are something that you take about every year or so?

MR. BUTING: Twice a year. And they involve you doing -- testing a sample that's sent to you by some outside private company?