3.Sherry Culhane — Redirect/Recross (Part 3)
236 linesMR. GAHN: (By Attorney Gahn)~ Ms Culhane, could you explain and describe to the jurors exactly what is on that envelope and how it is packaged and what information will be helpful in determining its basic chain of custody?
SHERRY CULHANE: It's an express mail package that was sent to the Crime Lab. Again, when it came into the laboratory, it got a case number and our bar coding system, and it was signed by whoever receipted the case. And, then, at some point was opened and I believe resealed with my initials and evidence tape.
MR. GAHN: And when that arrived at the Crime Lab and you opened it, it contained evidence to be analyzed in the case of the exoneration of Steven Avery?
SHERRY CULHANE: Yes.
SHERRY CULHANE: No, I don't. I would have to open this.
SHERRY CULHANE: No, it doesn't have an item number; I have a case number.
SHERRY CULHANE: Yes, I believe so.
THE COURT: Are you about to ask the witness to open the envelope?
THE COURT: All right. I think before she does that, I believe Mr. Buting wanted some information placed on the record about its condition. And after he gives that description, I will ask if the State agrees.
MR. BUTING: All right.
THE COURT: Perhaps, Mr. Buting, you can take it to the prosecution table, so as you are describing it, all attorneys will have a chance to look at it.
MR. BUTING: Well, I think -- isn't the witness going to -- can't I ask her to explain what it is, so I'm not the witness who is testifying.
THE COURT: If you wish to ask some questions now, I believe that was the State's original request. I thought you objected to it, but if you want to and the State agrees, go right ahead.
MR. BUTING: Sure, I mean, I would rather do it that way so that --
THE COURT: Counsel, is that correct? Mr. Gahn?
THE COURT: All right. Mr. Buting, go ahead.
MR. BUTING: Okay. Just, we don't know what's inside at this point, but on the left side of the envelope, as you are facing the label.
SHERRY CULHANE: Mm-hmm.
MR. BUTING: Does it appear at some point it was opened?
SHERRY CULHANE: Yes.
MR. BUTING: And then there's a piece of tape, sort of a wide piece of tape that says State Crime Lab?
SHERRY CULHANE: Yes.
MR. BUTING: And it has an initial over it?
SHERRY CULHANE: Yes.
MR. BUTING: Would you look on top of that -- By the way, this tape that says State Crime Lab, it's a clear tape?
SHERRY CULHANE: Yes.
MR. BUTING: But it has your label in red?
SHERRY CULHANE: Yes.
MR. BUTING: And that's your little initials?
SHERRY CULHANE: Yes.
MR. BUTING: That little black thing right there?
SHERRY CULHANE: Yes.
MR. BUTING: If you look on top of that, doesn't it appear that there's a piece of small scotch tape that appears to be closing it?
SHERRY CULHANE: Yes, it does.
MR. BUTING: And, your Honor, I would ask, if she's going to open it, rather than cut it with a knife, I would ask that she peel off that piece of scotch tape and see if its accessible that way.
THE COURT: Any objection?
THE COURT: All right. Do you understand the request?
SHERRY CULHANE: I think so.
THE COURT: All right. If you can peel off --
SHERRY CULHANE: Peel this tape off?
THE COURT: Just the thin piece of scotch --
MR. BUTING: Just the scotch tape, not your evidence tape.
SHERRY CULHANE: All right. I can't really get it all off.
THE COURT: Do you prefer it peeled off or use a letter opener that would leave the scotch tape on, in two pieces, one on each side?
MR. BUTING: Well, what I would rather see is, is if by taking the scotch tape off one can open it. It looks like -- Is that what you have done.
SHERRY CULHANE: That's what I just took off.
MR. BUTING: Okay. And if you peel off this last little bit, does it appear to -- I don't know if we're going to be able to tell if this is torn off. Just go ahead and open it. I would just slit it along that edge.
SHERRY CULHANE: Should I cut it along this opening here?
THE COURT: Do you want us to use a letter opener or something?
MR. BUTING: She has a little knife.
SHERRY CULHANE: I do have this.
THE COURT: All right. Sounds like both parties are agreeable, so go ahead.
MR. BUTING: Record should reflect inside of the postal envelope is another manila envelope that appeared to be unsealed. And now you have pulled out something that was inside of that.
SHERRY CULHANE: Would you like for me to describe it?
THE COURT: Mr. Gahn?
THE COURT: Go ahead.
SHERRY CULHANE: This is a manila envelope, says Marie Beth Varriale. These are my markings, my initials, the lab number and the item designation. This is actually samples that are used to collect data bank samples. It's just a kit that we have.
Inside the kit is a sealed white envelope with the laboratory case label and item designation, W, my initials. And then this is the -- this is a cut that I made when I took the sample out and it's been resealed with my initials across it.
MR. GAHN: Explain a little more to the jury exactly what that contains and when you sealed it and how you sealed it.
SHERRY CULHANE: When samples are collected for the Wisconsin State -- the CODIS System, the data base, convicted offender samples, these preprinted kits are used. It says Wisconsin DNA Data Bank. and sometimes there are also other police agencies will sometimes use these to collect standards from individuals.
So there's some paper -- there's some documentation here as to where this kit came from and there's some instructions here if you were going to submit this to the data bank. There is a place for a fingerprint on here, which I really don't know anything about.
But I received it in this condition, with this -- this was completely sealed. And we placed our bar code from the lab across the top here and I signed and initialed and dated it. And, then, when I took my sample out, I cut along the top edge here.
The swabs are actually inside this white envelope here. This is just a piece of paper that's stuck to the envelope. So the swabs are inside this envelope.
When I took my sample, I split the top and pulled out the swabs, sampled the swabs, put it back, and sealed -- resealed it, this is the evidence tape in the lab, and initialed it.
MR. GAHN: And can you tell if that is the buccal swab that corresponds to, I believe, Exhibit 344, where the evidence was turned over, signed for by Detective Remiker?
SHERRY CULHANE: Yes. They both have the same Lab No. M85-1051, and they both have the item designation of W.
MR. GAHN: I would like you to describe the condition of those buccal -- of the buccal swabs, right now.
SHERRY CULHANE: I can feel in here, there appears to be one swab in here. And all the edges are sealed and this is the seal -- this was cut open at one time when I took my sample and then I resealed it back. And this is the seal that I placed on it. And appears to be exactly the way it was when I put it on there.
MR. GAHN: Are there any seals broken that where someone could remove that buccal swab and use it to rub on a key and plant evidence of Steven Avery?
SHERRY CULHANE: None of the seals are broken.
MR. GAHN: And can you tell on what date you sealed that envelope and sent it back to the Manitowoc County Sheriff's Department?
SHERRY CULHANE: Not by the markings on here, no.
SHERRY CULHANE: Not by these markings, no.
SHERRY CULHANE: 344 is the evidentiary release form and it was returned on September 25, 2003.
MR. GAHN: And it would have been returned on September 25, 2003, in the condition that you just described for the jurors?
SHERRY CULHANE: Yes.
MR. GAHN: And today, as you look at that, does it appear to have been tampered or opened in any way?
THE COURT: Mr. Buting, any recross?
MR. BUTING: Sure. There's always something.
RECROSS-EXAMINATION BY ATTORNEY BUTING:
MR. BUTING: Back to this deviation request form for a moment, you said -- you didn't go through the contamination log, but you just said you would guess that maybe 90 percent get resolved, meaning 90 percent of the contamination errors can be determined?
SHERRY CULHANE: Actually I said, or I meant to say, everything is resolved somehow. Probably 99 percent are resolved by re-extracting. There are several instances that samples were not re-extracted, simply because they were exclusions; in other words, the evidence sample excluded the alleged suspect, so if it's an exclusion then that's the end of it.
MR. BUTING: Yes. As a matter of fact, the protocol does specifically allow, when there's a contamination in a manipulation control, it does still allow you to make a exclusion?
SHERRY CULHANE: Correct.
MR. BUTING: But not an inclusion?
SHERRY CULHANE: Right.
MR. BUTING: Explain the difference between an inclusion and exclusion?
SHERRY CULHANE: When you are excluding someone, like if I have a evidence sample and I have a reference sample, and the profiles do not match, they are not the same, then, that reference sample is excluded. That person is not the source of the evidence sample. An inclusion is, if I have an evidence sample and a reference sample, and the profiles are the same, they are consistent with one another, that's referred to as an inclusion.
MR. BUTING: All right. And the reason why you can still use these contaminated tests to exclude somebody is because an exclusion is the absence of something, that is lacking, the evidence does not have the profile that the defendant or the suspect would be, right?
SHERRY CULHANE: Right.
MR. BUTING: Whereas, an inclusion, when there is a contamination, there's concern that there's something may be added to it that shouldn't be there, and that it may be because it's added that it includes somebody?
SHERRY CULHANE: Correct.
MR. BUTING: So they are treated differently in the protocol?
SHERRY CULHANE: Correct.
MR. BUTING: And page, the very next page from where we were looking before in the protocol, the E2 -- for some reason my pages aren't numbered. Starts on the top of evaluation of controls?
SHERRY CULHANE: Yeah.
MR. BUTING: Okay.
SHERRY CULHANE: This page, right.
MR. BUTING: Yeah, okay. Very first paragraph says that -- it talks about how manipulation controls may reveal the presence of contamination, right?
SHERRY CULHANE: Correct.
MR. BUTING: And what it specifically says is if -- if you're -- if this control -- manipulation control exhibits identifiable allele peaks, that means, basically, a DNA profile, right?
SHERRY CULHANE: Right.
MR. BUTING: Then the DNA specimens that are extracted along with that control, in other words, the evidence sample that's being done, along with your control?
SHERRY CULHANE: Correct.
MR. BUTING: The DNA specimen will be considered inconclusive for match purposes, right?
SHERRY CULHANE: Correct.
MR. BUTING: That's the rule that your lab has?
SHERRY CULHANE: Right.
MR. BUTING: And you said about 99 percent of the time they are re-extracted. In fact, do you know whether you might be the only lab analyst ever, at the Crime Lab, to ask for a deviation from the protocol in order to include somebody?
SHERRY CULHANE: No, I'm not.
MR. BUTING: Do you see any in that control -- in that contamination log?
SHERRY CULHANE: No, but this was before that. We did have a deviation before the instances in the contamination log.
MR. BUTING: Okay. Before you started keeping track?
SHERRY CULHANE: Yes.
MR. BUTING: From your memory you recall that?
SHERRY CULHANE: Yes, I do.
MR. BUTING: Okay. But there's no record of it.
SHERRY CULHANE: Not in this documentation, no.
MR. BUTING: Okay. And you said that you felt that it was appropriate to deviate because you felt this was probative evidence, right?
SHERRY CULHANE: Correct.
MR. BUTING: That means you make a judgment -- a value judgment about whether this evidence is important in this case, right?
SHERRY CULHANE: We do that every piece of evidence we look at, on every case.
MR. BUTING: That's right, because it's not a blind test, like we talked about earlier, right?
SHERRY CULHANE: That's the way we work. That's the way any Crime Lab works cases.
MR. BUTING: That's the way you work. And in this case Mr. Fassbender asked you to try to put Teresa Halbach in the defendant's garage or house, right?
SHERRY CULHANE: As I said before, in your request from the investigator, had no bearing whatsoever on my examination or my results.
MR. BUTING: No bearing whatsoever?
SHERRY CULHANE: That's correct.
MR. BUTING: And yet, for the first time in your career, you deviate from a protocol to include -- to find one piece of evidence, the only piece of evidence in this entire case that links Teresa Halbach to Mr. Avery's garage or house, you deviated from the protocol so that you could call her on that one piece of evidence, right?
THE COURT: The objection is sustained.
MR. BUTING: (By Attorney Buting)~ You contaminated -- Your results showing that you contaminated this bullet, you got the results on April 3rd; is that right?
SHERRY CULHANE: I would have to check. Actually, April 6th.
MR. BUTING: Okay. April 6th. And you were aware, I believe, because your lab objected to it, that the defense filed a motion to assure fair forensic testing to allow the defense to have a witness there when you do any tests that would result in using up all the evidence?
THE COURT: I'm sustaining the objection, not on relevancy, but on the grounds it's beyond the scope of recross.
MR. BUTING: (By Attorney Buting)~ Well, in any event, because you used up all of the sample, not only could you not re-extract it, the defense had no opportunity to retest that, did we?
SHERRY CULHANE: You didn't have any opportunity to test the original item, but my extracts are available for retesting.
MR. BUTING: Did you retest them?
MR. BUTING: Why not?
SHERRY CULHANE: Because my results from my quantitation show that there was DNA in the manipulation control --
MR. BUTING: You're telling me --
SHERRY CULHANE: I would have gotten the same thing.
MR. BUTING: You are telling me that you get a test that requires that you go to so far as to deviate from the protocol when you could have simply retested the same extract?
SHERRY CULHANE: There was nothing different about it. Retesting it would not have changed anything.
MR. BUTING: Because it was contaminated already.
SHERRY CULHANE: Because the DNA was introduced during the extraction process.
MR. BUTING: Because it was -- That's right, therefore, the extract was contaminated already; isn't that right?
SHERRY CULHANE: The control was contaminated with the my DNA, not the extract.
MR. BUTING: So, rather than retest, you went out on a limb and made this request, that you have never made before in your life, so that you could give Mr. Fassbender what he wanted, some evidence that would link Teresa Halbach to that --
THE COURT: Objection is sustained.
MR. BUTING: (By Attorney Buting)~ You talked about 50,000 samples, I think you brought that up again. The thing about contamination is, once you find a contaminated sample, it doesn't matter what the percentage of other cases that you -- where you have contamination, does it?
SHERRY CULHANE: Yes.
MR. BUTING: Well, it doesn't matter whether this is one in 50,000, or whether this is the 89th in 50,000, it's a test that you know is contaminated, right?
SHERRY CULHANE: Are you referring to the bullet?
MR. BUTING: Yeah.
SHERRY CULHANE: Yes, I know it's contaminated with my DNA.
MR. BUTING: So whether it is a unusual or rare circumstance in the big picture or not, doesn't matter because you have a case where you know there was contamination; it's one of the incidents that need to be reported?
SHERRY CULHANE: Correct.
MR. BUTING: The 2003 case, just so nobody is confused, the pubic hair that you found comingled with the victim's pubic hairs was not just a man, it was Gregory Allen, right?
SHERRY CULHANE: Correct.
MR. BUTING: And you knew, from discussions with the police, that Gregory Allen, in fact, was a suspect in that very case, from the very beginning?
SHERRY CULHANE: No, I did not.
THE COURT: Mr. Buting?
MR. BUTING: It's not beyond the scope, he just brought it up, he talked about it.
THE COURT: He did bring it up, but the question about whether he's a suspect is beyond the scope, so I'm going to sustain the objection on that basis.
MR. BUTING: (By Attorney Buting)~ In any event, he was in the data bank and it hit on him, right?
SHERRY CULHANE: Correct.
MR. BUTING: And it excluded Mr. Avery, right?
SHERRY CULHANE: Yes.
MR. BUTING: Without any kind of deviation from protocols, right?
SHERRY CULHANE: Yes, that's correct.
MR. BUTING: It was a standard test that proved he was excluded?
SHERRY CULHANE: That's correct.
MR. BUTING: The bottom line is, in this case, if you had followed the protocol of your own lab, and you would have had to file a report that says any DNA tests on that bullet were inconclusive, right?
SHERRY CULHANE: Without a deviation, which our protocol does allow for, yes.
MR. BUTING: Ma'am, the question is, if you had followed the protocol and not requested a deviation, your report would have said, the DNA on that bullet was inconclusive?
SHERRY CULHANE: Correct.
MR. BUTING: That's all your Honor.
THE COURT: Anything else Mr. Gahn?
FURTHER REDIRECT EXAMINATION BY ATTORNEY GAHN:
SHERRY CULHANE: Because every situation, each case that we work and every situation, is different. And sometimes there are circumstances that warrant deviating from the stated protocol.
SHERRY CULHANE: In my opinion, yes.
SHERRY CULHANE: Because my DNA was not in the evidence sample, it was only in the control, and it was a source that I could track. It was me. It was introduced when I was handling the tubes. It had no bearing, no scientific bearing on the type of the evidence sample at all. It was no mixture. It was a single source sample that was consistent with Teresa Halbach, and for those reasons I felt it was appropriate.
MR. GAHN: And did the fact of your profile being in the control in this case have any impact whatsoever on Teresa Halbach's DNA being on the bullet?
MR. BUTING: Objection, been asked and answered.
THE COURT: Sustained.
MR. BUTING: Just one quick response here.
FURTHER RECROSS-EXAMINATION BY ATTORNEY BUTING:
MR. BUTING: So, now we understand that you know how that bullet -- how that control test was contaminated, because it was you handling the tubes; is that your testimony? Didn't you say earlier that you were training and talking and were too close to the bench?
SHERRY CULHANE: That's correct. And I believe that's why it was introduced.
MR. BUTING: You just said --
SHERRY CULHANE: By handling --
MR. BUTING: -- a moment ago --
SHERRY CULHANE: -- I meant handling the evidence, and that includes everything I did in reference to that evidence.
MR. BUTING: And that includes the bullet sample too, right? Handling that, the evidence you are talking about is the sample with the bullet in it -- DNA in it, right?
SHERRY CULHANE: Of course I had to handle it --
MR. BUTING: Of course.
SHERRY CULHANE: -- to extract it.
MR. BUTING: Of course. So when you say you know where this came from, you don't know where this came from. You don't know whether it came because you were spitting too close as you were talking, or whether you were handling it and got it off on your hands; you don't know how that control was contaminated, do you?
SHERRY CULHANE: The fact is, it was my DNA.
MR. BUTING: Ma'am, you don't know how that control became contaminated, do you?
SHERRY CULHANE: Not 100 percent for sure, no.
MR. BUTING: Just like many other incidents reported in the log, where it is undetermined how contamination occurred --
THE COURT: Court is going to sustain the objection. And we're just plowing the same ground here so I'm going to excuse the witness.
MR. BUTING: I'm done anyway. Thank you, Judge.
THE COURT: Members of the jury, we'll take our afternoon break at this time. Again, I will remind you not to discuss the case during the break.
(Jury not present.)
MR. BUTING: Judge, I would move the introduction of all the exhibits that we filed.
THE COURT: All right. I think there were some exhibits produced by both sides; do -- are both parties asking for their exhibits to be admitted?
THE COURT: All right. Everything that was introduced today, then, is admitted.
MR. BUTING: With the exception of 343, which I think we just marked.
THE COURT: That's right there was one that was specifically requested not to be admitted. Okay.
(Recess taken.)
THE COURT: At this time the State may call its next witness.
THE COURT: All right.