6.Leslie Eisenberg — Direct/Cross (Part 1)
1,073 linesMR. FALLON: State would call Leslie Eisenberg.
COURT CLERK: You can step over there. Please raise your right hand.
LESLIE EISENBERG, called as a witness herein, having been first duly sworn, was examined and testified as follows:
COURT CLERK: Please be seated. Please state your name and spell your last name for the record.
LESLIE EISENBERG: My name is Leslie Eisenberg, E-i-s-e-n-b-e-r-g.
DIRECT EXAMINATION BY ATTORNEY FALLON:
MR. FALLON: Good afternoon.
LESLIE EISENBERG: Good afternoon.
MR. FALLON: What do you do for a living?
LESLIE EISENBERG: I am currently employed, and have been since June of 1993, for the State of Wisconsin, Wisconsin Historical Society, as the State's, uh, Burial Sites Preservation Program Coordinator. I am, likewise, employed privately as a forensic anthropologist.
MR. FALLON: Would you tell us what an anthropologist does?
LESLIE EISENBERG: I'd be happy to. Uh, a -- an anthropologist, and in particular, a forensic anthropologist, uses techniques from physical anthropology, uh, including knowledge of the human skeleton and knowledge of human variation and applying that knowledge in a legal context.
MR. FALLON: Are there any particular areas or subspecialties of forensic anthropology or anything like that?
LESLIE EISENBERG: Um, I, uh, have a bit of -- quite a bit of experience with trauma reconstruction and with, um, identifying and, um, recognizing burned human remains.
MR. FALLON: Um, Judge, either the witness should lean back a little or if you could turn the volume down a tad. She seems to be more comfortable leaning forward so, perhaps, less volume. Thanks.
THE COURT: Sure.
MR. FALLON: (By Attorney Fallon) How are you involved in this case?
LESLIE EISENBERG: I was, uh -- In early November of 2005, I was requested, uh -- my assistance was requested by the Calumet County Sheriff's Office, uh, to examine some human remains that had been recovered.
MR. FALLON: And, uh, in terms of today, um, why are you here today?
LESLIE EISENBERG: I am here to explain the work I've done, and my findings, um, with particular reference to a determination of, um, the sex and the age of the burned human remains I was asked to examine, uh, as well as to render a professional opinion with respect to the manner of death.
MR. FALLON: Now, before we get to your findings and opinions, Doctor, um, I'd like to find a little bit about yourself, please. Um, first of all, uh, tell us your educational background?
LESLIE EISENBERG: I received a Master's Degree in anthropology in 1981, a Doctorate, or Ph.D, in anthropology in 1986, uh, and in 1997 was awarded what's called "diplomat" status or board certification in forensic anthropology.
MR. FALLON: And if you could tell us, what does diplomat status, or bird cer -- board certification status what -- why is that significant?
LESLIE EISENBERG: It's significant, uh, to a forensic anthropologist because it means that you have gone through a very rigorous process in submitting case reports for review to an organization called the American Board of Forensic Anthropology, who will review your application and determine your fitness to sit for a very rigorous day-long written and practical examination.
MR. FALLON: From which institutions did you receive your Masters and Doctoral Degrees?
LESLIE EISENBERG: Both degrees were received from New York University in New York City.
MR. FALLON: Tell us, if you would, um, your, uh -- Well, how long have you been with the Wisconsin Historical Society? We'll start there.
LESLIE EISENBERG: I, uh, moved to Wisconsin in, uh -- at the end of May of -- of 1993 to accept the position with the Wisconsin Historical Society. So I've been here almost 14 years.
MR. FALLON: Did you say '83? '93?
LESLIE EISENBERG: '93.
MR. FALLON: What, um, positions have you held which, uh, benefit you in the performance of your anthropological, uh, duties and opinions that you render?
LESLIE EISENBERG: Well, there have been a number. Uh, for me, one of the most important positions I held before coming to Wisconsin, uh, began in 1986, and that was as a consulting forensic anthropologist, one of two for the Office of Chief Medical Examiner in New York City.
Uh, I have also, uh, been fortunate and honored to be asked to be part of a federal disaster mortuary team that goes by the name -- the full name is, um, Disaster Mortuary Operational Response Team. And that's a team made up of different kind of professionals, including dentists and pathologists and, uh, other specialties like forensic anthropology, that are most useful in identifying, um, remains that have sustained effects from disasters, whether they be, um, an explosion, a burning episode, um, more -- most recently Hurricane Katrina, uh, the World Trade Center, plane crashes, things like that.
MR. FALLON: And this, uh, Disaster Mortuary Operational Response Team, is that known by the acronym DMORT?
LESLIE EISENBERG: It is.
MR. FALLON: D-M-O-R-T?
LESLIE EISENBERG: That's correct.
MR. FALLON: And, now, you mentioned some disaster relief efforts. Have you participated in any disaster relief efforts, uh, involving the need for, uh, expertise in the field of forensic anthropology?
LESLIE EISENBERG: Yes, I have.
MR. FALLON: Uh, tell us about those responses that you've been involved in?
LESLIE EISENBERG: Well, of the requests made to me to assist, um, I -- I have been asked to assist on multiple occasions. Of those requests I've been able to, uh, actually help with three of them. The first one was regarding a train derailment, train crash, in Bourbonnais, Illinois, uh, where, uh, a number of individuals on that train, um, sustained, um, trauma from -- from the crash and also from the subsequent burning episode.
I also was called, uh, the day of the World Trade Center disaster, excuse me, to respond to New York to help with the identification of the extremely fragmented and, in many cases, very badly burned human remains from that attack.
Uh, and more recently, in September of 2005 to -- I was asked to go down to Mississippi -- to, Gulf Port, Mississippi to assist with the identification of, uh, in some cases, cemetery remains that had been washed out, and in other cases, to assist, uh, with remains of unidentified individuals, um, who were either washed up or recovered subsequent to, uh, Hurricane Katrina and Rita, which followed on its heels.
MR. FALLON: Are you, uh -- Do you -- Are you a member of any committees or belong to any boards of, uh -- that are particular interest with respect to the field of forensic anthropology?
LESLIE EISENBERG: Yes, I am, um, a board member of the American Board of Forensic Anthropology. Uh, for six years, uh, I served on that board as an elected member. Uh, the last three years of that six-year term as the board secretary.
MR. FALLON: Currently, do you belong to any, um, uh, national professional organizations?
LESLIE EISENBERG: Yes, I do.
MR. FALLON: And what, uh, are those organizations?
LESLIE EISENBERG: Um, may I refer to my resumé so that I don't leave anything out that may be of interest?
(Exhibit 381 marked for identification.)
MR. FALLON: Sure. Showing you what has been marked for identification purposes has Exhibit 3-8-1. Could you identify that for us, please?
LESLIE EISENBERG: Exhibit 381 is my resumé, also known as a Curriculum Vitae, um, which consists of 17 plus pages. Um, with regard to my professional affiliations, um, I do belong to a number of national and regional organizations.
Um, I am a, um -- a fellow of the American Academy of Forensic Sciences, which is basically the umbrella organization of forensic professionals in this country, in Canada and membership also, uh, spans the globe. Uh, being a fellow of that organization means that you have attained the highest level of membership, uh, that the American Academy of Forensic Sciences, um, has.
Uh, as I mentioned, I am also a board certified forensic anthropologist with an affiliation with the American Board of Forensic Anthropology.
I am also a member of the International Association for Identification, which most recently has begun a forensic anthropology section, and I am, uh, acting, uh, with other colleagues to begin, uh, that section for the organization.
MR. FALLON: All right. Um, if I may interrupt you. And, again, continuing the field of anthropology, um, are you a member of any, uh, regional professional organizations?
LESLIE EISENBERG: Yes, I am, sir.
MR. FALLON: What would those be?
LESLIE EISENBERG: Um, with respect to my qualifications here, the -- I am a member of the Wisconsin Association for Identification, the Wisconsin Association of Homicide Investigators, and the Wisconsin Coroners and Medical Examiners Association.
MR. FALLON: Have you received, uh, any, um, particular research grants, awards, or honors of, um, particular importance with respect to your field of forensic anthropology?
LESLIE EISENBERG: Uh, yes, I have. If I may refer, again to --
MR. FALLON: Sure.
LESLIE EISENBERG: -- Exhibit 381?
MR. FALLON: You may.
MR. STRANG: Your Honor, that exhibit can be admitted without --
MR. FALLON: I --
MR. STRANG: -- objection.
MR. FALLON: Thank you. I was just about to do that in a moment or two.
THE COURT: All right. The exhibit is admitted.
MR. FALLON: Thank you.
LESLIE EISENBERG: Most recent for 2006, I am, uh, proud to say that my peers, uh, in the DMORT organization in, uh, the, uh, federal disaster team have named me the distinguished member of the year.
Um, and among other, uh, awards and honors, in the year 2000, the Wisconsin State Assembly, uh, presented me with a citation, uh, recognizing my work in another forensic case, uh, from Sauk County, Wisconsin.
MR. FALLON: All right. So is the, uh, Curriculum Vitae, uh, that you have there a -- a summary of your professional training and experience awards, publications, etc.?
LESLIE EISENBERG: It is, sir.
MR. FALLON: Thank you. Uh, turning now to this particular case, when did you first become involved, uh, in this case, involving, uh, Teresa Halbach?
LESLIE EISENBERG: My involvement with this case began with a telephone call. Actually a voicemail message that was left for me on November 9 of 2005. Uh, there was a call placed to me, uh, by special agent of the Wisconsin Department of Justice, uh, Division of Criminal Investigation, uh, asking for my assistance in examining some, um, items that had been collected, uh, with -- and the specific request had to do with looking at those items to determine if any human remains were part of that in -- uh, ini -- initial collection of items.
MR. FALLON: I'd like to direct your attention to, uh, the time frame of November 5, which we've established is a Saturday, through November 10th, which we have also established as a Thursday. Uh, during that time frame, uh, were you in the state of Wisconsin?
LESLIE EISENBERG: I, uh, left, uh, on that Sunday, which I believe would have been the --
MR. FALLON: Sixth?
LESLIE EISENBERG: -- 6th of, uh, November, returning on Wednesday, the 9th. I was, along with four or five other individuals, who's representing the state of Wisconsin at a -- at a missing persons conference in Denver, Colorado.
MR. FALLON: All right. You returned to the 9th and your first day back at work would have been the 10th?
LESLIE EISENBERG: Would have been Thursday, November 10 of '05.
MR. FALLON: What were you asked to do, initially? What were your primary tasks?
LESLIE EISENBERG: My primary task was to examine the contents of a sealed box, um, and to provide information about the con -- the contents of that box.
Um, when I opened the box, uh, on, Thursday, November 10 at the Dane County Coroner's Office Morgue where I do most of my, uh, laboratory work, um, I opened the box to find many, uh, blackened, highly fragmented and incomplete human bone fragments.
MR. FALLON: All right. Upon making that examination and after receiving the request from law enforcement, what did you attempt, or what was your -- what were you attempting to do with respect to, uh, evaluating these, uh, fragments?
LESLIE EISENBERG: Well, the first task at hand in this case, and in -- in other cases, uh, as well, sometimes, uh, one of the tasks that a forensic anthropologist is often asked to do, is to look at, um, remains, whether they're fragmentary or complete, and render an opinion as to whether or not the remains are human and, if you can answer yes to that question, to then, uh, distinguish or determine, um, can you also distinguish other kinds of items that are associated with those.
So one of the -- one of the key roles for forensic anthropologists is to determine or distinguish human from nonhuman remains, whether they're biological or otherwise.
MR. FALLON: I've -- I've just been informed you might have to pull that microphone just a little bit closer.
LESLIE EISENBERG: Okay. I'll try and do better. Thank you.
MR. FALLON: At some point were you attempting to develop a biological profile of, uh -- of the person, if there was, in fact, a determination that they were human remains?
LESLIE EISENBERG: Yes. One of the other key roles of a forensic anthropologist is to develop what's called a biological profile. And that often includes, and should include, a determination of the sex of the individual, the age of the individual, um, the stature or height of the individual, the ancestry or race of the individual, um, a determination as to whether or not, um, there are any, uh -- the remains have sustained trauma of any kind, whether they occurred before death or after death, and, also, um, to re-fit any fragments that might be re-approximated or put back together.
MR. FALLON: Are you familiar with the terms "antemortem", "postmortem" and "perimortem"?
LESLIE EISENBERG: Yes, I am.
MR. FALLON: Could you explain those terms to us --
LESLIE EISENBERG: I --
MR. FALLON: -- please, at least as you apply them in your field of anthropology?
LESLIE EISENBERG: I would be happy to. The term "antemortem", the prefix "ante" means "before", "mortem" means "death", so antemortem means before death.
Perimortem, P-e-r-i-m-o-r-t-e-m, "peri" means at or near the time of death. So that's what perimortem means.
And postmortem, "post" means "after" so postmortem means after death.
MR. FALLON: All right. In terms of your task, could you tell us, please, what were -- what were the condition of the bones and fragments and materials that were sent to you?
LESLIE EISENBERG: The material that I initially examined, and virtually all of the subsequent material presented to me for examination, um, the human bone fragments that I identified and sorted and inventoried was incomplete, highly fragmented, burned, and in some cases what we call calcined, and calcined is -- is a state or a condition, um, along a continuum or a progression of what happens to bone, human bone, when it's exposed to heat.
Um, and it's -- it's -- so if you can break that down into three different kind of general periods, when bone is initially exposed to heat, it begins to lose moisture. Um, many people think of bones as, uh -- as inert, kind of as a -- like a piece of wood, but, in fact, there are blood vessels that run through bone, and bone is a very dynamic substance. As anyone who may have broken a bone knows, it -- it hurts a lot when that happens.
So when bone is exposed to heat, it first begins to lose its moisture. It will then begin, um, as time goes on, as more heat or, um, is -- is applied or the duration of the exposure to heat is extended, the organic content of the bone, um, what makes you and me human, begins to -- to disappear from the bone.
And then the third phase, when a bone is calcined as I mentioned, is when it begins to lose all of its minerals, um, that keep the bones strong. And so when that happens, the bone begins to function not so much as a living bone, but more as a brittle material.
MR. FALLON: All right. Now, in the field of, um, disaster relief and forensic anthropology, are there, uh -- is there a standard, or are there levels of destruction or degradation that are, uh, assigned to particular samples when you're asked to examine them?
LESLIE EISENBERG: Well, again, um, different -- different researchers have -- have written about this and have assigned, um, or developed these, um, protocols or continuums where, um, the initial level is that, uh, a body may have been exposed to heat, continuing up to the final level where you are left with cremated remains. And it's, um -- the phases that have been defined by researchers are -- are fairly discreet or stand alone phases, but we know that -- that there's a continuum. There's a -- there's a continual progression from recognizably burned individual, to an individual whose remains have been, for all intents and purposes, cremated.
MR. FALLON: All right. Uh, I'd like to show you some exhibits, and to begin with, uh, some, uh, preliminary questions.
THE COURT: Doctor, I think I'm going to ask you to move the microphone just a little further away. There's a little distortion coming through the --
LESLIE EISENBERG: My apologies.
THE COURT: That's okay.
MR. FALLON: (By Attorney Fallon) If you would be so kind to uh -- to begin with the, uh -- the first photograph. I believe it's marked as Exhibit, uh, 382?
LESLIE EISENBERG: That's correct.
MR. FALLON: All right. And, uh --
LESLIE EISENBERG: Exhibit 382 is a -- what appears to be a four-by-six inch color photograph of myself and other investigators sorting through what appears to be burn material. And, uh, if memory serves, uh, I believe this photo was taken at the Wisconsin Crime Laboratory in Madison in December of -- of 2005.
MR. FALLON: All right. Um, and the next, uh, photograph?
LESLIE EISENBERG: The next four-by-six color photograph, marked Exhibit 383, depicts the, uh, contents of the initial box that was submitted to me, uh, for examination, uh, under Calumet County Sheriff's Office Tag 8318.
This was a box that was left for me, um, at my office on November 9 of 2005. That on the following day, I brought it to the Dane County Coroner's Office Morgue, uh, to examine.
MR. FALLON: All right.
LESLIE EISENBERG: And -- and I would also note, um, the darkened color of -- of the bones, um, and the fact that some of the lighter colored bones, the bones that almost look white, have taken on or have reached that phase, that calcine phase, where the mineral content and the moisture of the bone, uh, has already dissipated or is gone.
MR. FALLON: All right. If you could take -- I believe there's -- should be a, um, laser pointer --
LESLIE EISENBERG: Yes.
MR. FALLON: -- up there? If you could just point to the box and just give the jury an example, if you would, of some of these calcined bones that you just described for them? If you could pick out from the box there?
LESLIE EISENBERG: Um, there's one.
MR. FALLON: All right.
LESLIE EISENBERG: Um --
MR. FALLON: Toward the bottom of the --
LESLIE EISENBERG: There's another.
MR. FALLON: Toward the bottom of the box on the edge there?
LESLIE EISENBERG: Correct.
MR. FALLON: All right.
LESLIE EISENBERG: And a fragment here, a fragment there. And I would also note that some of these fragments, um, as you probably can see, uh, in some cases have a calcine portion and maybe a charred portion all part of the same bone.
MR. FALLON: All right. What is the, uh, next, uh, photograph? This is Exhibit --
LESLIE EISENBERG: This is Exhibit 384.
MR. FALLON: All right. And what are we looking at here?
LESLIE EISENBERG: You are looking at, um, uh, a sampling of skull fragments, uh, of different sizes, um, that were part of that initial submission that came in that white box to me that I initially examined on November 10 of 2005.
Um, they look, I'm sure, very irregular to all of you, um, but I would call your attention to some, uh, characteristic, um, traits that I -- that stand out to me immediately. Um, these -- these areas of projections, um, these are all part of cranial sutures, where many of the bones of the skull fit together.
MR. FALLON: All right. If we were to zoom in, would that assist you in further illustrating the point you're making?
LESLIE EISENBERG: Thank you, yes. Here and here.
MR. FALLON: So you're pointing to pieces what -- what appear to be very irregular shaped?
LESLIE EISENBERG: That's correct.
MR. FALLON: All right. And those are cranial sutures?
LESLIE EISENBERG: They, um -- they represent parts of cranial sutures and there are different cranial sutures around the skull.
MR. FALLON: All right. Now, do you recall approximately, um, how many, um, diagnostic, uh, human skull fragments you did examine or look at?
LESLIE EISENBERG: If memory serves, there were 58 diagnostic skull fragments. Um, and when I use the word "diagnostic", uh, to me that means there was en -- there was enough about the bone, either given its shape or its contours, where I could say, yes, this bone fragment came from the skull.
MR. FALLON: And, uh, it -- I may not be clear enough in my own head, so what, exactly, is a cranial suture?
LESLIE EISENBERG: We, um -- All of us, hopefully, as -- as, uh -- as we're born, develop into kids and -- and get older. Um, hopefully our heads grow to accommodate our growing brains. And, uh, essentially, what happens is that -- the skull is made up of multiple bones, and as your brain grows, um, your skull is able to accommodate that growth at these open sutures or these, um -- I don't want to call them a zipper, but in a sense, you could think of them as the teeth of a zipper, um, that as you get older, um, those teeth or these sutures sometimes fuse or grow together. But in -- in younger children, even, uh, in adults, hopefully my age, those sutures are still pretty open even though my -- my brain has stopped growing.
Um, for little kids or for babies, um, you can sometimes feel a soft spot on the top of the head. That's because the bone, uh, has not grown to the point where, um, that soft spot is covered up yet.
MR. FALLON: All right. Are they somewhat reflected, or some people refer to those as growth plates? Or they assist in the growth of the head and this -- the brain? Skull?
LESLIE EISENBERG: Most people, uh, refer to growth plates with respect to growing long bones. The leg bones and the arm bones. But less so, really, with the skull.
MR. FALLON: All right. All right. Uh, next, uh, exhibit, please? This is Exhibit No. three eighty --
LESLIE EISENBERG: This is Exhibit 385. Um, this photograph was taken, um, as part of my preparations in preparing, um, a submission or a package for a transfer to the FBI for -- for examination. What you are looking at in this image, um, is a bone fragment that's -- that's kind of charred but, um, perhaps not really burned, and certainly not to the degree of the other, uh -- of all of the other bone fragments found in this case.
MR. FALLON: I'm going to ask my colleague, if I could, to zoom in on the one that you seem to be pointing at. Pointing your laser pointer at. A Thank you. This -- this is the bone, um, and although there's no scale in this particular photograph, it was really meant as a -- as a, um -- a reminder to me what the contents of that evidence tag number, uh, contained.
And this is -- was the largest bone that was collected as part of this evidence tag. It is, uh, unquestionably human, um, and -- and the -- the color of this bone is more typical of what you would expect to see, um, in a nonburn case. In other words, it was somehow protected, um, and if you could zoom out to the larger photo for me, please, was protected by some of, um, this dried or desiccated muscle tissue that surrounded this bone.
MR. FALLON: All right. Now, the one we've been examining more closely here, is that the bone that you, uh, had sent or arranged to be sent to the FBI, or excuse me, to the Crime Lab for further analysis?
LESLIE EISENBERG: No, this -- um, the contents of all of the items you see on this screen, um, this larger bone, which is only about two-and-a-half inches long, and some of these other bone fragments, and this muscle tissue, uh, was packaged by me and transferred directly to the FBI in November of 2005.
MR. FALLON: All right. Um, what type of bone, uh -- Is that all bone, or is it tissue, or what, exactly, is that one to the far left there?
LESLIE EISENBERG: This?
MR. FALLON: Yes.
LESLIE EISENBERG: This entire fragment is human bone.
MR. FALLON: All right. All right. Based on your examination of the bones and fragments recovered, uh, from the, um, burn pit behind the garage of Mr. Steven Avery, did you find evidence of human remains?
LESLIE EISENBERG: Yes, sir, I did.
MR. FALLON: And what did you determine?
LESLIE EISENBERG: I was able to determine --
MR. FALLON: Were they human or nonhuman? Human?
LESLIE EISENBERG: They were human.
MR. FALLON: Were you able to determine, uh, the -- or identify the relative age of the person whose remains you examined?
LESLIE EISENBERG: Yes, I was. And it -- it's, uh, with a reasonable, uh, degree of scientific certainty, based on an examination of certain preserved parts of the skeleton, um, my assessment is that the, uh, fragmentary and burned remains that I was asked to examine from behind Mr. Steven Avery's garage were those, um, of someone, uh, probably no older than between 30 to 35 years of age.
MR. FALLON: When you -- when you say "no older" can you explain that? No older than the range of 30 to 35. Can you explain how anthropologists use dates like that so that we're not confused?
LESLIE EISENBERG: I -- I will. And, um, I -- I would say that any reasonable and professional forensic anthropologist will always provide an -- an age range, as opposed to a particular year, um, because we can never really know for sure. But there are certain characteristics, certain things we expect to see happening to bone at certain ages, and as we -- as we age, as we start to look a little different every year on the outside, on the inside our bones also start to look a little different.
And what I'm referring to in particular is the onset of a degenerative bone condition known as arthritis.
MR. FALLON: All right. So when you say, uh, 30 -- of an individual less than 30 to 35, in other words, it's someone who's younger than -- I assume you have different levels? There's a 30 to 35, there's a 20 to 25, or a 40 to 50, so they -- these remains of this person was somebody who was clearly less than 30 to 35 years of age?
LESLIE EISENBERG: That's correct. And I say that because there were no bony signs of arthritis on several of the joint surfaces that I was able to recognize and examine.
MR. FALLON: Were you able to determine the sex of the person whose remains were recovered?
LESLIE EISENBERG: Yes, I was.
MR. FALLON: And what was that?
LESLIE EISENBERG: That in my professional opinion these remains are those of an adult female.
MR. FALLON: And why were you able to make that determination?
LESLIE EISENBERG: I was able to make that determin -- determination based on, um, certain characteristics, traits and measurements of various portions of the body that had been recovered and could be recognized as to where in the body they come from. Actually, which bone they came from.
MR. FALLON: All right. I would like to direct your attention to, I believe, the next photograph? And that would be Exhibit 386?
LESLIE EISENBERG: Three-eight-six. That's correct.
MR. FALLON: And, uh, it's now being displayed on the screen. What are we looking at in Exhibit 386?
LESLIE EISENBERG: Um, I -- I would ask, um, you to -- as you're facing me, um, we are facing this image, and -- and what we are looking at is, um, the recognizable, what I call diagnostic, portions of human facial bones, and -- and I'd like to take you through what it is I see in the hopes that you can orient yourselves as well.
MR. FALLON: Sure.
LESLIE EISENBERG: Um, if you, um -- if you're looking at this head-on or face-on, if you will, this would be the top of the left eye socket. This would be the top of the right eye socket. This is the left nasal bone. Um, everyone's nose has a right side and a left side. We recovered the left nasal bone. We also have the entire, or virtually the entire, right cheekbone, as well as a portion of the left cheekbone, and a portion of bone that begins in the cheekbone area and continues over and above the left op -- the opening for the left ear.
MR. FALLON: All right.
LESLIE EISENBERG: And -- and I must say, if I can add, that, um, in burn situations like this one, it is sometimes unusual to find the -- the facial structures because they are thin and easily damaged. And the fact that we have these bones and they are as recognizable as they are, to me is -- is, in part, a testament to the recovery that occurred at the scene.
MR. FALLON: I note from examining, uh, Exhibit 386 that there appear to be some red dots on the fragments which are displayed?
LESLIE EISENBERG: That's correct.
MR. FALLON: Can you explain what those dots are and who -- how they came to be?
LESLIE EISENBERG: Yes. Um, I would be happy to do that. As -- as part of the investigation and the sorting, um, I needed to find a way to, um -- to mark from what location certain bones came. And what I initially decided to do was to go out to Walgreens, buy some very brightly colored nail polish in different colors, different enough so that each color could be distinguished from one another, and mark certain recovered items whose tag numbers or identification numbers we knew so that if I was, over time, be able -- was able to re-fit fragments, I would know if one match and another match came from the same, uh, evidence collection or came from two different evidence collections, for example.
Um, the red dots you see here, um, indicate that all of these fragments, all of these, recognizable to a forensic anthropologist, facial fragments, came from that initial recovery Tag No. 8318, uh, in that white box that I was initially asked to examine.
Um, I would also like to say that I took great pains on these fragments, and other fragments that may have been so marked, to place these dots in areas that did not ob -- obscure any kind of anatomical landmark or that might be needed later on for examination purposes.
MR. FALLON: All right. If you would turn to the next photograph? This would be Exhibit 387?
LESLIE EISENBERG: Yes, sir.
MR. FALLON: And 387 is what?
LESLIE EISENBERG: Three eighty-seven is a close-up of a portion, uh, of facial bones that we saw in the previous, uh, slide. Uh, what you are looking at, uh, we're doing the same thing. We're looking face-on at somebody, and what you are looking at, this area is actually the area just above and between your eyes. And, again, this area is the portion of the frontal bone or the forehead that demarcates or forms the boundary for the top of the left eye socket.
You are also looking at -- at the left nasal bone. Uh, and while you can't see it here, um, actually -- which actually fit with this frontal bone.
MR. FALLON: All right. If you would, uh, turn to the next, uh, photograph, I believe it would be Exhibit 388?
LESLIE EISENBERG: Yes, sir.
MR. FALLON: And Exhibit 388 is, um -- First of all, you have to tell us a little bit about this exhibit. Um, um, how was this -- with whom did you work to prepare this particular exhibit?
LESLIE EISENBERG: Um, I had the opportunity, uh, to work with, uh, a Wisconsin State Trooper by the name of Timothy Austin, who prepared many of the graphics for this case, um, using software that, uh, I wouldn't have the first idea about how to make work, but he -- he did, uh, a wonderful job in -- in helping me depict certain areas of -- of the body that had been recovered, uh, from -- from Mr. Avery's property.
Um, what this slide depicts is a graphic of a human skull. We are essentially looking, again, face-on at that skull, and each of these identifying labels, uh, points to the portion of the facial bone that was depicted and was recognized and was inventoried, uh, in this particular case.
If you remember, we had virtually the entire right cheekbone, um, that we call the malar bone, but it's essentially a cheekbone, um, we had the left nasal bone, um, we had this portion of the left cheekbone, the left malar again. We had that, um, linear or stick-looking piece of bone that forms part of the cheekbone that continues over and above the -- the opening for the left ear.
Um, and a very, very characteristic portion of the left frontal bone that contains, uh, a continuous surface demarcating the top of the left eye socket.
We also had, uh, fragments from the -- the top of the right eye sockets, but, unfortunate -- unfortunately, given their fragmentary nature, they could not be re-approximated or fit one right next to another.
MR. FALLON: All right. If we could have you turn to one more, uh, photograph, and then, um, I'll ask a couple of questions regarding the ones we just looked at. Uh, Exhibit, I believe it would be 389?
LESLIE EISENBERG: Yes, sir.
MR. FALLON: All right. Um, the question at hand, as we began the analysis of these, uh, facial bones, was your ability to determine a female from male, and, um, if you would then, uh, illustrate further, uh, making a compare and contrast, uh, Exhibit, uh, 389, with, uh, the male and female anatomy and tell us how you were able to determine that the remains you examined were, in fact, female?
LESLIE EISENBERG: In fact, there were multiple indicators of -- of, uh, these remains having come from a female. Um, the first, um -- the first evidence of that actually came from that left frontal bone fragment that you saw a minute ago with, um, the sharp, um, upper boundary of the left eye socket, and that is, uh, characteristic, and actually the hallmark, uh, for, um, being able to dis -- distinguish -- well, one of the characteristics and one of the hallmarks for allowing anthropologists to make a distinction between males and females.
MR. FALLON: So I take it, then, by your description, you're pointing that the skeletal figure depicted on the left-hand of our screen is a male?
LESLIE EISENBERG: No, actually, uh, facing the screen --
MR. FALLON: Oh. Our -- our looking -- look -- right-hand side, excuse me.
LESLIE EISENBERG: Yes. The skeleton graphic on the right-hand side is the male --
MR. FALLON: Right.
LESLIE EISENBERG: -- and on the left-hand side depicts, in a general way, a female.
MR. FALLON: Okay. Now, you said, uh, in addition to the, uh, facial bone, uh, that you've just described, there were other, uh, bone, uh, material that you examined that, um, further supported your opinion that, uh, the remains were of a female?
LESLIE EISENBERG: Yes, sir.
MR. FALLON: Tell us --
LESLIE EISENBERG: Um --
MR. FALLON: -- about that.
LESLIE EISENBERG: As we move from, um, the head down the body to what are called the post-cranials, anything neck and below, post, again, after, so below the -- below the skull, uh, one of the, um, fragments that was actually recovered and in very, very good shape was part -- was a bone that forms part of the elbow joint, and the elbow joint is made up of three bones; the lower end of the upper arm bone, that's called the humerus, and the upper end of the two lower arm bones, the one on the thumb side of the arm, called the radius, and the one on the other side, called the ulna.
And what I was able to identify was the elbow, and of the radius, it's called the radial head, which is, um, a rounded lozenged-shaped portion of the bone that forms part of the elbow joint.
MR. FALLON: All right. And, um, did you recover, uh, any other bones? For instance, a femur shaft or anything like that which would be of -- would be of some assistance in determining the sex?
LESLIE EISENBERG: Yes. Along with the head of the radius, um, that actually I can try and point out in this graphic, it's -- well, maybe not. Um, may I -- may I approach the --
MR. FALLON: Sure. I think that --
LESLIE EISENBERG: -- graphic? I think I might be able to do a little better.
MR. FALLON: Sure. Would you like to use a pen to, uh, point or --
LESLIE EISENBERG: Well, no, this -- this should work. Um, it's that lozenged-shaped area right there. You have one on the left and one on the right, um, but I was only able to identify one of those radial heads and -- and I do not know from what side that came.
Um, along with the head of the radius there was also a femur shaft. The femur is the thigh bone. And, um, most long bones, the arm bones and the leg bones, as you can see in this photograph, the upper arm bones, there's an upper end at the joint, a lower end at the joint, and in between those two joint ends is usually the cylindrical or rounded part of the bone that's called the shaft.
And there was a femur shaft fragment that was found in with the initial recovery Tag No. 8318 whose circumference measurement or the measurement around the tubular part of the bone falls well within the expected range, uh, for females.
MR. FALLON: Now, early on in -- when we were talking about your experiences, you say -- uh, you said that oftentimes the ancestry or stature of a person could be determined. Were you able to make any of those determinations upon your examination in this case?
LESLIE EISENBERG: I was not. Uh, stature is, um -- was not possible. There were no complete long bones or no bones long enough to even, um, estimate stature from. Uh, likewise, there was nothing indicative of, um, ancestry.
There's certain parts of the body that anthropologists typically look at, um, skull shapes and proportions, as well as areas of the femur and some other bones that often assist us in determining ancestry or race. And, in fact, unless you can make a determination as to ancestry, um, no good forensic anthropologist would even attempt stature because many of the equations we use to plug in the length of a long bone require that you know the ancestry beforehand.
MR. FALLON: I take it that's because there are different standards associated with age?
LESLIE EISENBERG: There are different standards because different populations, um, are proportioned differently, and those equations take that into account.
MR. FALLON: Doctor, I want to switch gears a little bit from some of your, uh, findings here, and, uh, ask you this, um, uh, question: As a forensic anthropologist, are you -- um, are you familiar with the concepts of cause and manner of death?
LESLIE EISENBERG: Yes, I am.
MR. FALLON: Are you, um, sometimes asked to render such opinions based on your training, your experience and your findings?
LESLIE EISENBERG: Uh, I am. Uh, and in particular, in cases where remains are too -- either too badly decomposed or have been otherwise compromised to the point where traditional autopsy cannot be performed.
MR. FALLON: So, uh, for the benefit, uh, of all of us here, in your mind, please distinguish cause of death and manner of death.
LESLIE EISENBERG: When -- when, uh, someone uses the terms "cause of death" it's, um, why -- why did the person die? Um, but "manner of death", um, is -- is how did they die? And, um, most people would agree that there -- in general, there are, um, four main categories that people look to when they talk about manner of death. And, um, one of those categories is, uh, a natural death. Another category is an accidental death. A third category would be, uh, suicidal. Someone takes their own life. And the fourth major recognized category is homicide. That is, someone takes the life of someone else.
MR. FALLON: Um, based on your findings and examination of the materials submitted to you in your training, do you have an opinion as to the manner of death of this individual?
LESLIE EISENBERG: I do, sir.
MR. FALLON: And what is that opinion?
LESLIE EISENBERG: In, um, my professional opinion, the manner of death, uh, in this case was by homicidal violence.
MR. FALLON: Could you explain that term for us, please?
LESLIE EISENBERG: Yes, sir. Um, in -- in inventorying and examining every fragment, um, every piece that was recovered from this scene, and in separating the human bone from the nonhuman bone, from the nonbone, whether it was metal, fiber, whatever, um, there were two fragments in particular, two skull fragments, that showed, in my mind, unmistakable, um, defects or unnatural openings, openings that were not caused either by some disease process, they weren't pathological nor were they caused by any congenital condition or some kind of condition that someone might have been born with.
MR. FALLON: Now, if you would turn to the next, uh, exhibit you have there? And that is Exhibit 3 --
LESLIE EISENBERG: That is Exhibit 3-9-0.
MR. FALLON: What are we looking at?
LESLIE EISENBERG: We are looking at one of the cranial fragments. Um, obviously, it's unrecognizable to most people who -- who haven't spent many years looking at -- at bone fragments, but this is a human bone fragment that has been burned, that is fragmented. You are looking, uh -- If you think of the skull kind of as a ball that has an inside surface and an outside surface, you are looking at the inside surface of a skull bone that I know comes from the side of the skull, and I know that because of these anatomical landmarks here.
These, um, what looks like -- look like tracks in the sand are actually impressions in the bone in which, um, vessels sit. Um, and when you hear that someone has meningitis, these -- these, uh, tracks are the -- the, uh, areas in which the meningeal -- middle meningeal vessels sit. The vessels that become inflamed when someone does have meningitis.
So the fact that we see these vessel markings mean that this bone has come from one of the two bones on the side of the skull, and these bones, they're matched bones. They're called parietal bones, p-a-r-i-t-a-l. There's a left parietal bone and a right pariet -- parietal bone, and when I take this bone, um, and orient it in its, um, correct anatomical position, because of the placement and direction of these vessel markings, I know that this fragment came from the left side of the skull from the left parietal.
I -- I also --
MR. FALLON: I was going to say, uh, parietal is p-a-r-i-e --
LESLIE EISENBERG: E-t-a-l.
MR. FALLON: Okay. And, uh, just so that we're oriented in common everyday parlance, uh, where -- where on the skull is the parietal bone found?
LESLIE EISENBERG: The -- We -- As I mentioned, we have two parietal bones. One, it's a -- it's a matched set. We have one on the left side of our skull and one on the right side.
MR. FALLON: All right. Um, in relation to an area that, um, people are familiar with, sometimes called the temporal area, where in relation to the temporal area would this parietal bone, uh, which, uh, appears to be depicted in Exhibit 390, where would that be on the left side?
LESLIE EISENBERG: The temporal -- Uh, the temple area, um, would be, uh, to the front portion of that bone.
MR. FALLON: Okay. Um, before I go further into, uh, having you describe the findings regarding these, um, unnatural defects to the skull fragments, were there any other reasons, um, that you believed supported, uh, any other finding that you made that supported your opinion that this was homicidal violence?
LESLIE EISENBERG: Well, I think, um, there was a -- a clear effort to obscure a body, uh, through burning. Um, the -- the extreme heat-related fragmentation, um, the burning of the bone, in some cases the calcine bone, taking the -- the destruction of the bone mineral to -- to its extent, um, there was an obvious attempt, in my professional opinion, to obscure the identity of an individual.
MR. FALLON: All right. All right. Returning, then again, to these, um, uh, defects, you've talked a little bit about the parietal defect depicted in Exhibit 390, if I could direct your attention to Exhibit 391, if you could tell us what that is?
THE COURT: Mr. Fallon, before you begin, I -- or continue, I'm going to give people a chance to get up and stretch. It's been about an hour since we've been out here, so... We're not going to take a break, just a chance to get up and stretch.
(Short break taken.)
THE COURT: All right. You may be seated. Mr. Fallon, you may continue.
MR. FALLON: (By Attorney Fallon) Directing your attention -- I think we were at Exhibit 391. What is Exhibit 391?
LESLIE EISENBERG: Three-ninety-one, um, represents an image of three different bones that were re-approximated or re-fitted from the left parietal.
Um, this larger fragment, now in proper anatomical position, um, is the fragment -- the only fragment we saw in the previous image.
You are looking, uh, at the fragment as if you were standing inside of the skull looking to the inside of the left side of the skull.
And so, again, I would call your attention to these vessel markings that now are in proper anatomical position. Um, the outside of the skull would be behind.
MR. FALLON: All right. Now, you mentioned something about these, uh, defects. Is the def -- one of the defects the, uh -- that you found with -- associated with the parietal skull bone, is it featured in this exhibit here?
LESLIE EISENBERG: Yes, sir, it is.
MR. FALLON: Would you point out to us, um, the, um -- the defect that, uh, caused you some concern and support your opinion with respect to homicidal violence as the manner of death?
LESLIE EISENBERG: Yes, sir. I would, uh, like to call your attention to the top portion of this bone, and in particular to this semi-circular defect here that has another smaller, um, unnatural opening here, and this is actually the border from the outside of the un -- unnatural opening, and this area here that all -- that looks very much like honeycomb, actually kind of is honeycomb.
Um, our skull is -- is made up, um -- it's kind of a sandwich between hard, flat bone on the outside, hard, flat bone on the inside, with a honeycomb type of bone in the middle. And it's through this honeycomb type of bone, um, that there's -- there's fat, and there's blood vessels and -- and so on.
And, um, what you're looking at here is the in -- internal portion of the skull. We don't see the -- the outside of the skull, but what you're looking at is kind of the inside of a crater where the inside of the skull bone here is gone. It's missing. And you're looking directly into the honeycomb portion of the skull.
MR. FALLON: All right. If you would turn to the next exhibit, um, 392, I believe?
LESLIE EISENBERG: Yes, sir.
MR. FALLON: And what is depicted in Exhibit 392 then?
LESLIE EISENBERG: What we are looking at here is -- is, essentially, the flip side of -- of what we were just looking at. We are looking at the three bones, but this time from the outside of the skull.
And what I will call your attention to is the circular or crescent-shaped opening reflected on the outside of the skull. This is, essentially, just above where that honeycomb bone was on the inside of the skull that we just looked at.
MR. FALLON: Now, I also note, in addition to the, uh, couple of different colored, uh, dots on that, there also appears to be an arrow, uh, on Exhibit 392? Do you know what that is?
LESLIE EISENBERG: That's correct. I believe that is a -- a copper marker that was affixed there by a representative of the Wisconsin Crime Laboratory.
MR. FALLON: Mr. Olsen?
LESLIE EISENBERG: I believe so.
MR. FALLON: All right. If we could direct your attention, then, to, uh, the next exhibit? I believe it would be 393?
LESLIE EISENBERG: May I, uh, just return for one moment?
MR. FALLON: Oh, sure. I'm sorry if I'd interrupted you.
LESLIE EISENBERG: No, that's -- Um, we -- we mentioned before the, um -- my attempt at marking, um, some of the bone fragments, and what I would like to call your attention to here, um, are these two different colors of nail polish on this bone. The parietal fragment with the defect --
MR. FALLON: Right.
LESLIE EISENBERG: -- or the unnatural opening, and, um, an adjoining parietal fragment showing the same two markings.
MR. FALLON: All right. And that's -- As you've said, that's related to your color coding system --
LESLIE EISENBERG: That's correct.
MR. FALLON: -- to assist you in, uh, recognizing what the items are, and when you received them, and where they came from?
LESLIE EISENBERG: And -- and, additionally, um, whether there were any, um, specific results, um, that I wanted to show on that particular bone.
MR. FALLON: Exhibit 393? What is -- What is it that we are looking at, uh, with respect to Exhibit 393?
LESLIE EISENBERG: This is, uh, another part of the skull. This time not from the left side of the skull, but from the back side of the skull, and you're looking, uh, again, at the internal portion, or the inside of the skull bone, um, two different fragments that re-approximate, that fit, um, together, and, um, an area where you can see clearly a honeycomb appearance to the bone, which means a portion of the inside, between the outside of the skull and the inner skull bone, is exposed.
MR. FALLON: And is there a name for this particular bone?
LESLIE EISENBERG: This bone is known as the occipital bone, o-c-c-i-p-i-t-a-l. And it's the bone you feel at the back of your skull.
MR. FALLON: And, um, the, uh, area where this defect is, is that the area which seems to be, uh -- our attention seems to be directed to by virtue of the, uh -- the, uh, triangular marker?
LESLIE EISENBERG: That's correct.
MR. FALLON: And next exhibit, please? I believe this is Exhibit 394?
LESLIE EISENBERG: Yes, sir.
MR. FALLON: Uh, what is it that we're looking at here?
LESLIE EISENBERG: This is, um, uh, a view of the same two bones, uh, although, um, you get a better sense of the totality of those two bones. Um, just by way of reference, I will point your, uh, attention here to the inner table of the skull, the inner margin of the skull, and, again, this honeycomb bone between the inner and outer tables of the skull that's exposed, and, again, another copper-colored pointer pointing to this unnatural opening.
MR. FALLON: Now, um, are you familiar with the phrase, uh, "internal beveling"?
LESLIE EISENBERG: Yes, I am, sir.
MR. FALLON: And could you tell us what that is?
LESLIE EISENBERG: Internal beveling is kind of cratering. Um, it's, um, where, um, there may be an opening. Um, for example, if you take a -- a piece of drywall or sheetrock and -- and you hammer something into it, you're -- you're liable to have a -- a small hole on the outside, but if you flip that -- that piece of particle board around, you'd see a wider opening, or a cratering on the opposite side. And that's, basically, what we are seeing here on the internal view of the skull bone at the back of the skull.
MR. FALLON: And so you were pointing, again, to the area where you've identified it as a defect, and it's indicated in this photo by the Crime Lab marker?
LESLIE EISENBERG: It is. And the honeycomb appearance of the bone.
MR. FALLON: All right. Was there anything else about the def -- this internal beveling or -- or this -- that you've earlier referred to it as a defect that was unusual?
LESLIE EISENBERG: Um, in the sense that, um, both of these defects, um, the -- the cranial bones that were identified by me were taken for x-ray in November of 2005, and, uh, ten different x-ray films were taken, and the results of those x-rays indicate, um, that there were what are called radiopaque particles, or little areas on x-ray that were much whiter than -- and much denser than surrounding bone.
And when you look at these x-rays, those little white flecks, the reason they are so white in comparison with the surrounding bone is that the x-rays, while they pass through bone, do not pass through these other areas, and that's why you have that whiter appearance in relationship to the bone, itself.
MR. FALLON: So these -- this, uh, radiopaque or denser material, which of the, uh -- of the, uh, bones had the presence of this material? And the parietal bone, or the occipital bone, or both?
LESLIE EISENBERG: Both, sir.
MR. FALLON: All right. Um, next exhibit, please? I'd like to step out a little bit from the, uh, trees and get more of the overview, uh, forest perspective. Um -- Well, before we do that, we have one last internal photo. What is it that we're looking at here with respect to this particular photo?
LESLIE EISENBERG: We are looking at the flip side, or the outside of that occipital bone, the bone at the back of the skull that shows the unnatural opening. And what I will point out here is the outside of that opening, as well as the loss of a little bit of outer bone, which is not unusual when bone is -- is burned as it is in this case. The bone becomes very brittle and fragile and it's not unusual to see some spawling off of bone from the outer surface.
MR. FALLON: All right. Next exhibit, please? That would be Exhibit 396?
LESLIE EISENBERG: Yes, sir.
MR. FALLON: All right. Exhibit 396, uh, does that, uh, generally depict the location of the parietal defect as you observed it?
LESLIE EISENBERG: Yes, sir, it does.
MR. FALLON: Uh, next one, please? What are we looking at here? I take it this is, uh, Exhibit 397?
LESLIE EISENBERG: Yes, it is. What we are looking at are two of three fragments that could be re-approximated or re-fitted from the left parietal bone. What I -- I'll call your attention, again, to these vessel markings telling me that this, in fact, comes from a parietal bone, and, more specifically, call your attention to the internal beveling or internal cratering, um, of the parietal bone.
And what I'd like to call your attention to are these four flecks or whiter areas depicted on x-ray. Here's one. Here's another. Here's a third. And here's a fourth.
MR. FALLON: Directing your attention to the one, uh, in the, uh, bevel defect?
LESLIE EISENBERG: Yes, sir.
MR. FALLON: Are, um, those, uh, dense, white specks or particles, are those naturally occurring?
LESLIE EISENBERG: They are not, sir.
MR. FALLON: When we say something is, um, radiopaque, uh, can you give a -- a -- a layman's, um, understanding of that term?
LESLIE EISENBERG: Well, I am certainly not a radiologist, but it means that the, um -- the x-rays, which are -- are not visible to the naked eye, cannot penetrate whatever that substance is. Uh, and in this case, can penetrate the bone, but cannot penetrate these other, uh, more dense substances.
MR. FALLON: All right. If you would, uh, take the next exhibit? Exhibit 398?
LESLIE EISENBERG: Yes, sir.
MR. FALLON: What are we looking at in Exhibit 398?
LESLIE EISENBERG: We are looking at one of the, um, x-rays, one of the ten x-rays, that was taken in November of 2005 of selected, um, cranial fragments, and, uh, in particular, I'd like to call your attention to some of the sutures that we talked about before. The irregular shape of these bones, um, but, in particular, I'd like to focus on this bone up in the upper left-hand corner.
MR. FALLON: All right. Now, what bone is it that we've zoomed in now at the upper left-hand corner of Exhibit 398? There are eight, uh -- eight bones depicted, and we're looking at the one in the upper left-hand corner, and, uh, what is it that -- which bone -- First of all, is that the parietal or occipital?
LESLIE EISENBERG: That is the occipital fragment with the unnatural opening.
MR. FALLON: All right. And, um, would you identify clearly, then, the, um, uh, radiopaque dense particles you've been talking about?
LESLIE EISENBERG: Yes. Um, I focus your attention in this area within and adjacent to the unnatural opening or defect. Um, and, uh, in x-ray, when I look at the x-rays, I count at least ten different particles. There may actually be more.
MR. FALLON: All right. Thank you. Um, would you turn to the next exhibit, please? This would be Exhibit 399?
LESLIE EISENBERG: Yes, sir.
MR. FALLON: All right. Uh, and, uh, 399, uh -- What is depicted on Exhibit 399?
LESLIE EISENBERG: We are looking, uh, at the back, uh, of this graphic skeleton. The back kind of from the left-hand side of the skeleton and the approximate area of, uh, where that occipital defect or opening is on the bone. Uh, it related to the previous slide we just saw of the x-ray.
This is the portion of the bone that showed at least ten of those radiopaque or dense particles adjacent to the defect.
MR. FALLON: All right. Excuse me. All right. Uh, Doctor, in terms of, um, these defects, were you able at all, based on your findings, to determine a particular order which these defects may have occurred?
LESLIE EISENBERG: No, sir.
MR. FALLON: Are these naturally occurring defects in the human condition?
LESLIE EISENBERG: They are most certainly not.
MR. FALLON: Why not?
LESLIE EISENBERG: Um, based on the -- It's not what our bone looks like. It's not what our skull bone looks like. We may have tiny openings for the passage of blood vessels, but we do not have openings that, um, are this large or that cause, um, the outer or inner tables of the skull, um, to be fractured away or to expose the honeycomb bone in between the outer and inner layers of the -- of the skull.
MR. FALLON: In your opinion, Doctor, did these defects exist before the burning episode or did they occur after?
LESLIE EISENBERG: In my professional opinion these defects occurred prior to or before the bone epi -- the burning episode. Before.
MR. FALLON: Tell us why?
LESLIE EISENBERG: Um, as I looked at the bone, uh, it's always important to look at the distribution of burning and the color on the bones, and, um, inside the defects, uh, the cratering and the honeycomb portion of the inside of the skull is of the same color as the outside burned portion and the inside burned portion. And based on that observation, it is my professional opinion that these defects occurred prior to the burning episode.
MR. FALLON: What does the presence of the internal beveling, coupled with the localized radiopaque particles on the parietal and occipital bones, signify to you?
LESLIE EISENBERG: To me, the -- those defects, and -- and what those defects look like, signifies, um, what happens to skull bone when it's subjected to a gunshot or gunshots.
MR. FALLON: I have a few, uh, questions here of -- to conclude. Uh, before I do, Doctor, you mentioned something about the concept of postcranial remains, uh, and having described them as below the head. What other postcranial remains, uh, were you able to identify as coming from the area behind the, uh, garage that we've been referring to as the burn pit?
LESLIE EISENBERG: I would, um -- I would say that virtually every part of the skeleton -- Um, obviously, there were no entire bones that were found, but at least a fragment or more of almost every bone below the neck was recovered in that burn pit. Um, one bone that's conspicuously absent, uh, are the left and right kneecaps, for example, but that is not surprising to me given that those bones were made up almost exclusively of that honeycomb, very fragile bone, that I would expect not to survive, um, a burning episode. So it's not surprising to me that I've not found evidence of -- of the kneecaps, but virtually every other bone below the neck, um, I found evidence for.
MR. FALLON: Uh, next exhibit, please? I'm showing you what has been, uh, marked for identification purposes as Exhibit 3 -- um, 400?
LESLIE EISENBERG: Yes, sir.
MR. FALLON: And with respect to Exhibit 400, is this, um, representative of the variety of human bone that you found in this area?
LESLIE EISENBERG: Yes, sir.
MR. FALLON: So you have some rib bone, some hand, some legs, clavicle --
LESLIE EISENBERG: There is --
MR. FALLON: -- or shoulder bones?
LESLIE EISENBERG: Yes. Um, obviously, no entire bone, but, uh, enough, um, of a bone or bones -- uh, enough of the anatomical landmark that I can say this is part of the spine, or this is part, uh, of a rib, or this is part of a -- a collarbone. Yes, I can.
MR. FALLON: Now, there were some other bones that you found that you weren't completely sure were human or not; is that correct?
LESLIE EISENBERG: That is correct.
MR. FALLON: Let's talk a little bit about that, if you'd like, all right? Um, and we'll talk about them in -- in this context, other than, uh, damage caused by fire or gunshot, as you've, uh, told us about, what other bones did you find that had other indicators of -- of damage or unnatural occurring injury to them?
LESLIE EISENBERG: There were several other bones whose origin, uh, I could not be sure of. In other words, I was not sure, uh, that the bones were definitely human.
MR. FALLON: I'll get to that in a minute.
LESLIE EISENBERG: Okay.
MR. FALLON: If you would just describe for us, first of all, what the possibility or probability -- What -- Describe the bone that you have, uh, pictured in your mind right now, and then we'll talk about it.
LESLIE EISENBERG: There -- there is one bone fragment in particular. Uh, part of a bone shaft. That kind of tubular, cylindrical portion of a bone is probably not more than about two or two-and-a-half inches, um, that shows evidence of cut marks and, of, uh, a saw cut as well.
MR. FALLON: All right.
LESLIE EISENBERG: And that bone is -- is, um, burned to the point of being calcined. In other words, its color has moved beyond black, but to whitish-gray.
MR. FALLON: All right. Now, with respect to that particular bone, uh, can you say to a reasonable degree of scientific certainty that that bone shaft fragment is a human bone?
LESLIE EISENBERG: I cannot, sir.
MR. FALLON: Um, did you find any evidence of a, uh -- of the superior aspect of an iliac blade?
LESLIE EISENBERG: Uh, yes, I did. And, um, for everyone in the room but me, I'll show you where that is.
MR. FALLON: That's my next question.
LESLIE EISENBERG: And, um --
MR. FALLON: Thank you. Bail me out.
LESLIE EISENBERG: The, um -- The pelvis is made up of three different bones; the left hip bone, the right hip bone, and the sacrum, which is the bone that sits at the base of the spine and actually is the lowermost portion of the spine. And the iliac crest is this top area here. What you actually feel, if you rub your hand on your hip bone, that's known as the iliac crest.
MR. FALLON: All right. Now, the bone that you suspected to be the iliac crest, can you say to a reasonable degree of scientific certainty that that, uh, is human bone?
LESLIE EISENBERG: No, sir, I cannot.
MR. FALLON: Did you find evidence, uh -- or -- of a bone that's referred to as the sacral iliac articulation?
LESLIE EISENBERG: Actually, those are two bones. It's where the right half of the sacrum, or the lowermost part of the spine, um, articulates -- it's actually adjoined -- with the right side of the hip bone.
MR. FALLON: And in terms of that, uh, suspected bone fragment, can you say to a reasonable degree of scientific certainty that that was human bone?
LESLIE EISENBERG: Um, I cannot.
MR. FALLON: Doctor, were you able to perform any other tests, uh, on these bones to determine if they were of human origin?
LESLIE EISENBERG: Uh, no, there were no other tests that I performed.
MR. FALLON: And why is that?
LESLIE EISENBERG: Um, I did not, uh -- there, um, are -- There is the potential for, um, using, um, microscopes to look, for example, to try and confirm if suspected human bone might actually be human bone or animal bone, but given the condition of the remains, I did not believe, um, that cutting into the bone, uh, that they would survive that -- those kinds of tests, and so I did not perform them.
MR. FALLON: Did you make an effort to, have, um, um, several bone fragments, uh, submitted to the FBI Laboratory to attempt further identification?
LESLIE EISENBERG: Yes, sir, I did.
MR. FALLON: Based upon your examination of the bones and the material that you had, did you find evidence of any heman (phonetic) human bone that was identified as being collected from a site other than the burn pit behind the defendant's garage?
LESLIE EISENBERG: Yes, sir, I did.
MR. FALLON: Tell us about that?
LESLIE EISENBERG: There, uh -- Human bone also was found in and among material that was collected from, uh, what was designated "Burn Barrel No. 2".
MR. FALLON: All right. And what type of bone fragment do you recall as having come from that particular burn barrel?
LESLIE EISENBERG: There was a portion of a -- a scapula or a shoulder blade, um, some long bone fragments, um, a possible hand bone, metacarpal, and I believe there was a fourth representation but I don't remember. Um, I certainly can check my notes if you'd like.
MR. FALLON: Uh, would it -- Spine bone, perhaps?
LESLIE EISENBERG: Yes. Vertebral spine. Thank you.
MR. BUTING: Sorry. What was that?
MR. FALLON: (By Attorney Fallon) Could you -- Counsel didn't hear that.
LESLIE EISENBERG: Part of -- Part of the spine. A vertebral element.
MR. BUTING: Vertebral?
LESLIE EISENBERG: Yeah.
MR. BUTING: Okay.
MR. FALLON: (By Attorney Fallon) All right, Doctor. The opinion that the remains were those of an adult female less than 30 to 35 years of age, do you hold that opinion to a reasonable degree of scientific certainty?
LESLIE EISENBERG: Yes, I do.
MR. FALLON: The opinion that the internal beveling observed in the left parietal bone is characteristic of a gunshot or bullet entrance wound, do you hold that opinion to a reasonable degree of scientific certainty?
LESLIE EISENBERG: Yes, sir, I do.
MR. FALLON: The opinion that -- The opinion that the internal beveling observed in the occipital bone left of the midline, is characteristic of gunshot or bullet entrance wound, do you hold that opinion to a reasonable degree of scientific certainty?
LESLIE EISENBERG: Yes, sir, I do.
MR. FALLON: The opinion that the internal beveling observed in the left parietal bone and in the occipital bone occurred before the burning episode, do you hold that opinion to a reasonable degree of scientific certainty?
LESLIE EISENBERG: Yes, sir, I do.
MR. FALLON: Finally, Doctor, the opinion that the manner of death for this person was homicidal violence, do you hold that opinion to a reasonable degree of scientific certainty?
LESLIE EISENBERG: Yes, I do.
MR. FALLON: Um, I would move into evidence the exhibits that I've had this witness identify. Upon their receipt, would pass the witness for cross-examination.
THE COURT: Any objection to the exhibits?
MR. STRANG: I have no objection to any of the exhibits.
THE COURT: Very well. Court will order, uh, all of the exhibits testified to by this witness admitted, and at this time we're going to take our afternoon break. Uh, members of the jury, I'll remind you not to discuss the case during the break. Uh, and we'll resume cross-examination after the break.
(Jurors out at 2:42 p.m.)
THE COURT: You may be seated. Counsel, I'll try not to, uh, interrupt you in your examination for a stretch break, but, uh, science class is pretty heavy for the jury, so when I look at them and think they need a break, I'll try to do it at a logical time.
MR. STRANG: You should feel free to do that.
THE COURT: All right. We'll see you at 3:00.
(Recess had at 2:43 p.m.)
(Reconvened at 3:00 p.m.; jurors present.)
THE COURT: You may be seated. Is someone going to get the witness?
MR. FALLON: I believe so.
THE COURT: All right. Mr. Strang, you may begin.
MR. STRANG: Thank you, Your Honor.
CROSS-EXAMINATION BY ATTORNEY STRANG:
MR. STRANG: Dr. Eisenberg, um, let's start by agreeing, if we can, that in all the work you did on this case with human bone, possible human bones, suspected human bone, all of the work which you've testified, you had no evidence that more than one person was involved in terms of a contributor of bones?
LESLIE EISENBERG: Are you asking me whether or not more than one individual was represented by what I examined?
MR. STRANG: That's right. That you have no evidence that you saw bone fragments from more than one person? Is that a better way to put it?
LESLIE EISENBERG: I have no evidence for having seen any duplicate bones in what I examined. That's correct.
MR. STRANG: No evidence that you saw bones that were characteristically male, for example?
LESLIE EISENBERG: No trace that would suggest to me any of those fragments came from a male skeleton.
MR. STRANG: Nothing to suggest female human bones of a detectably different age range than the under 30 to 35 years you've testified to here today?
LESLIE EISENBERG: That's correct.
MR. STRANG: The evidence that you have is that the bone fragments here were attributable to one person and one person only?
LESLIE EISENBERG: That's correct.
MR. STRANG: Did I hear you stop just short, um, of giving us your opinion on the cause of death? Did I hear you stop just short of that?
LESLIE EISENBERG: Um, no, I don't believe so.
MR. STRANG: Okay. I heard you say that you had an opinion on manner of death; correct?
LESLIE EISENBERG: I -- I was asked to render an opinion as to manner of death.
MR. STRANG: And the manner of death you assigned here in your opinion as homicide, or I think your term was homicidal violence?
LESLIE EISENBERG: Yes, sir.
MR. STRANG: All right. And, again, that's -- Manner of death is a, um -- is a term of art, if you will, normally used by medical examiners, or coroners, pathologists?
LESLIE EISENBERG: That's correct.
MR. STRANG: All right. Um, and we have accidental, suicidal homicidal, and there's -- there's a -- there's a fourth one?
LESLIE EISENBERG: Natural.
MR. STRANG: Natural, which would encompass illness or heart attack, that kind of thing; correct? In natural?
LESLIE EISENBERG: Well, I guess it depends on the situation, and -- and since I am not a forensic pathologist, I'd -- I'd -- uh, really don't know how to answer that question.
MR. STRANG: Well, I'd understood you to be saying, uh, here to this jury that you are qualified to give an opinion on manner of death?
LESLIE EISENBERG: In the absence, uh, of, um, remains that could be subject to a traditional autopsy, then really the forensic anthropologist is the only one, um, who can offer such, uh -- such information.
MR. STRANG: And are you qualified to opine on manner of death, including natural, accidental, homicidal and suicidal?
LESLIE EISENBERG: Uh, I believe, depending on the nature of the case, yes, I am.
MR. STRANG: What do you mean by "depending on the nature of the case"?
LESLIE EISENBERG: If the remains are highly fragmented, whether or not they're burned, if the remains are too decomposed or skeletonized for a traditional autopsy, um, then if the forensic anthropologist observes something that is significant and can speak to cause and/or manner of death, I believe it's the duty of the forensic anthropologist to provide that information.
MR. STRANG: All right. Now, right now, I'm interested in manner. We'll get to cause. But is there a situation in which you would be qualified to opine, uh, that a cause of death was natural?
LESLIE EISENBERG: I don't believe so.
MR. STRANG: Then it's also true that there is not a situation in which you would be qualified to exclude natural cause of death unless you definitely could include or attribute manner of death to homicide, suicide?
LESLIE EISENBERG: There are many cases with which I've been associated or asked to examine where no cause or manner of death can be attribute --
MR. STRANG: Let -- let's go back and let's -- let's -- let's work on answering the question I'm asking, all right? Manner of death --
LESLIE EISENBERG: Yes, sir.
MR. STRANG: -- I think we've established that you can't think of a case in which you would be qualified to offer an opinion that the manner of death was natural? Did I understand you?
LESLIE EISENBERG: That is correct and that is because, uh, often a forensic anthropologist is not provided with enough remains to be able to do that. In other words, if I'm presented with --
MR. STRANG: All right.
LESLIE EISENBERG: -- a skeleton --
MR. STRANG: The answer to my question is, yes? You are not qualified to render an opinion in any case you can think of that the cau -- that the manner of death was natural? The --
LESLIE EISENBERG: I -- I don't --
MR. STRANG: -- answer to that question's yes?
LESLIE EISENBERG: I -- I -- I am not -- I -- I don't believe I'm not qualified. I simply believe that there is no way for me to observe and interpret what might be considered a natural, uh, death.
MR. STRANG: And if there's no way for you to observe and interpret it, then you certainly wouldn't offer an opinion to a reasonable degree of scientific certainty that something was a natural cause of death, would you?
LESLIE EISENBERG: That's correct.
MR. STRANG: All right. And then the question when we got a little bogged down was, then, unless you could say to a reasonable degree of scientific certainty that the manner of death was either homicidal or suicidal, you also could not rule out natural death, could you?
LESLIE EISENBERG: By exclusion, no, I could not.
MR. STRANG: The same would be true both calling an accidental death as the manner of death or rule out accidental as the manner of death?
MR. FALLON: Objection as to the, uh, relevance of an opinion -- of a relevance of an opinion regarding, uh, accidental or natural death to our circumstances here. Those were not the opinions elicited.
MR. STRANG: No, but I think she was tendered as an expert on giving an opinion on manner of death.
MR. FALLON: In the context in which it was asked?
THE COURT: I'm not sure if these are foundational questions leading to something else or where we're going.
MR. STRANG: They are.
THE COURT: All right. On a foundational basis, I'll allow it.
MR. STRANG: (By Attorney Strang) Again, not qualified to give an opinion within your field that something's an accidental death?
LESLIE EISENBERG: There may be circumstances where, um, I might be able to distinguish an accidental death from a -- a different type of manner.
MR. STRANG: Okay. And that -- that -- the situation there might be, just to use an easy example, uh, the crash of a -- of a jetliner? Of an airplane, possibly; correct?
LESLIE EISENBERG: Well, I certainly wouldn't give an opinion as to, um, how people died, because there may have been many factors beyond my expertise.
MR. STRANG: Okay. But, again, if we're just talking about manner and not cause, if you had no evidence that the plane fell out of the sky because of a bomb or some deliberate human action, but, rather, that the plane crash was an accident, in that instance you, as a forensic anthropologist, might be able to say the manner of death of a passenger in the plane was accidental?
LESLIE EISENBERG: That's correct.
MR. STRANG: But, again, I think what I hear you saying is that you, as a forensic anthropologist, have a fairly limited range in which you're comfortable opining on the manner of death if accident is a possibility?
LESLIE EISENBERG: It -- It depends on, um, my observations and, um, what's presented to me for analysis.
MR. STRANG: Now, let's go, then, to cause of death; all right?
LESLIE EISENBERG: Yes, sir.
MR. STRANG: Okay. Cause is just -- If -- if it's a homicide, how did the homicide happen; right? I mean, was it a gunshot? Was it something else? That's what we mean by cause of death?
LESLIE EISENBERG: That's correct.
MR. STRANG: All right. And, ideally, we would try to assign something more specific than that? If it's a gunshot, we'd like to know a gunshot to where; correct?
LESLIE EISENBERG: Correct.
MR. STRANG: All right. Here, you are not able to give an opinion that a gunshot or a gunshots caused the death of the person whose bones you examined, are you?
LESLIE EISENBERG: I am able to note the presence of defects that are consistent in architecture and -- and -- and what's happened to the bone.
MR. STRANG: And, again, that -- that wasn't my question, was it?
LESLIE EISENBERG: Would you ask it again, then, please?
MR. STRANG: I'd be happy to. You are not able to give us an opinion here that gunshot or gunshots was the cause of death of the person whose bones you examined?
LESLIE EISENBERG: In the absence of any other professional looking at these remains, that that is my testimony.
MR. STRANG: Why don't you tell me just exactly what evidence you have on which to conclude that the defects here you've described as gunshot wounds happened before the death of the person whose bones you examined?
LESLIE EISENBERG: I would be happy to, um -- to, uh, repeat, uh, the answer I -- I gave before when that question --
MR. STRANG: What --
LESLIE EISENBERG: -- was asked.
MR. STRANG: What is the evidence -- Let's assume these are gunshots for purpose of our discussion here, all right? What you -- what we're calling unnatural defects. Let's assume they're gunshots. What evidence did you see that allows you to conclude that those gunshots happened before or at the time of death?
LESLIE EISENBERG: I am not able to -- to tell you whether those gunshots -- I can tell you that the gunshots happened before death. I cannot tell you within a time interval how close to the time of death they occurred.
MR. STRANG: I think I heard you testify that you could tell us that the gunshots happened before burning? Did I hear that correctly?
LESLIE EISENBERG: That's correct.
MR. STRANG: All right. And you explained why you -- you concluded that the gunshots happened before burning --
LESLIE EISENBERG: Yes.
MR. STRANG: -- of the bones? Because the coloration's about the same, including on that beveled surface on the inside of the bone?
LESLIE EISENBERG: Yes, sir.
MR. STRANG: The interior side of the bone? So I understand that you -- you believe that the gunshot wounds here happened before the bones were burned? I'm -- I'm clear on that? Tell me what evidence you have that the gunshots to those bones happened before death as opposed to a dead person being shot?
LESLIE EISENBERG: After or before burning?
MR. STRANG: I'm talking about before burning. I'm talking about well before burning, okay? What evidence do you have that the person whose bones have the gunshot holes --
LESLIE EISENBERG: Um-hmm.
MR. STRANG: -- was alive and breathing as opposed to dead? A corpse, unburned, but dead, at the time the gunshot wounds made the holes you identified in those bones?
LESLIE EISENBERG: So -- so if -- if I may ask the question in a different way to make sure I understand what you're asking, you are asking me how can I be sure that a person who was already dead, then, did not sustain two gunshot wounds to the head?
MR. STRANG: Let's -- I'll -- I'll work with that. Can you work with that for me in answering the question about --
LESLIE EISENBERG: Is -- is that a fair assessment --
MR. STRANG: Sure.
LESLIE EISENBERG: -- of what you've asked me?
MR. STRANG: Sure.
LESLIE EISENBERG: Um, given the fragmentation to the skull and the inability to put the entire skull back together, I cannot say that.
MR. STRANG: As you sit here, and on the evidence you have, one or both of those gunshots, as easily, could have been fired into the skull of a dead person as into the skull of a living person; true?
LESLIE EISENBERG: That is possible.
MR. STRANG: Which -- Not only possible, it's true, isn't it?
LESLIE EISENBERG: Yes. In the absence of being able to reconstruct the skull, um, I would agree with you.
MR. STRANG: And -- and you've completed the work that you've been able to do on reconstruction of this skull?
LESLIE EISENBERG: To the best of my ability, yes.
MR. STRANG: All right. And if the gunshot wounds were fired into the skull after the person was dead, then the gunshots did not cause the death of the person, did they?
LESLIE EISENBERG: That would be a correct assessment.
MR. STRANG: If the gunshots did not cause the death of the person, then, as we go back to manner of death as homicide, the evidence you have for homicide is the burning or destruction of the bones that you saw?
LESLIE EISENBERG: That is correct.
MR. STRANG: The burning or destruction of these bones clearly happened after death or postmortem as you say?
LESLIE EISENBERG: One would hope so.
MR. STRANG: You have no evidence that it occurred before death?
LESLIE EISENBERG: I do not.
MR. STRANG: So if you're unable to give us an opinion on the cause of death, then you also are unable to give an opinion on the manner of death, unless we take as sufficient support for your opinion on homicidal violence as the manner of death the burning or destruction of the bones that you've described?
LESLIE EISENBERG: That's correct.
MR. STRANG: Now, you understand -- I don't mean to have ang -- angels dancing on the head of a pin here, you understand, because you're a forensic anthropologist, you apply anthropology, the science of human behavior, cultural and physical characteristics to law?
LESLIE EISENBERG: That is correct.
MR. STRANG: All right. And the law in the state of Wisconsin includes, among other possible crimes, but two relevant here, first degree intentional homicide, that is, intentionally causing the death of a human being, you understand that?
LESLIE EISENBERG: Yes.
MR. STRANG: And a crime called mutilation of a corpse, you understand that --
LESLIE EISENBERG: Yes, I do.
MR. STRANG: -- as well? And if one is living, then the defendant or the person is incapable of mutilating a corpse, because it -- you know, if you're living, you're not a corpse; correct?
LESLIE EISENBERG: Correct.
MR. STRANG: All right. So you understand, here, that these folks to your left will have to make a distinction between homicide on the one hand and mutilating a corpse on the other? You understand that?
LESLIE EISENBERG: Yes, I do.
MR. STRANG: All right. And you certainly would view the burning of bones to this state of char and calcination as mutilation of a corpse, and that to the extent these are human bones, that looks like mutilation of a corpse, doesn't it?
LESLIE EISENBERG: That's correct. Although mutilation of a corpse does not -- is not mutually exclusive. In other words --
MR. STRANG: Understood.
LESLIE EISENBERG: Okay.
MR. STRANG: Un -- understood. Uh, but I'm -- In terms of -- You -- you -- you would view what happened here, with the fragmentation and burning of bones, as mutilating a corpse if someone had done that intentionally, wouldn't you?
LESLIE EISENBERG: Correct.
MR. STRANG: All right. Now, in your work with these bone fragments, uh, you found evidence of two gunshot wounds I take it?
LESLIE EISENBERG: Yes, sir.
MR. STRANG: You did not find evidence of 10 or 11 gunshot wounds in any of your work with these bone fragments?
LESLIE EISENBERG: I did not.
MR. STRANG: Let's, uh, spend a little bit of time talking, now, just sort of backing up a bit, uh, to the recovery of -- of bone fragments. The initial process of recovery. Um, I understand you weren't there, okay, but I want to talk to you about the recovery process, all right?
Um, you were -- you were out of state at a -- at a conference in Denver or something, and, uh, didn't attend the recovery effort of any -- any bone fragments here?
LESLIE EISENBERG: That is correct.
MR. STRANG: Indeed, you weren't asked to do that?
LESLIE EISENBERG: That is correct.
MR. STRANG: Your initial contact on November 9 was a phone call simply alerting you that someone was bringing a box of material collected to you?
LESLIE EISENBERG: Yes, sir.
MR. STRANG: All right. And -- and -- and, indeed, somebody did, so when you came to the office on November 10, uh, there was a box waiting for you on your arrival?
LESLIE EISENBERG: That's correct.
MR. STRANG: This was the box you've described as being under, uh, Tag 8318?
LESLIE EISENBERG: That's correct.
MR. STRANG: Now, when -- when -- you -- you -- you talk about tags a lot, and I understand that, and you do, um, but, uh, when evidence is collected, the -- the person or people collecting that evidence will give it a unique number often on a tag; correct?
LESLIE EISENBERG: That's correct.
MR. STRANG: So they can keep straight what it is they found, and what they did with it, and then keep track later of where it goes --
LESLIE EISENBERG: Uh --
MR. STRANG: -- whose got their hands on it?
LESLIE EISENBERG: As well as that number is also associated with the location of the find.
MR. STRANG: Ab -- absolutely.
LESLIE EISENBERG: Yes.
MR. STRANG: Um, in general, and certainly in this case?
LESLIE EISENBERG: Yes, sir.
MR. STRANG: And the location will be described with some degree of, I guess, specificity. Here, 8318 was described as being behind Steven Avery's garage, or words to that effect?
LESLIE EISENBERG: Yes, sir.
MR. STRANG: All right. And, um, you were -- you -- you know a gentleman named Dr. Ken Bennett, uh, who also, I think, lives in Madison?
LESLIE EISENBERG: Yes, I do.
MR. STRANG: Uh, Ken Bennett, uh, also a Ph.D like you?
LESLIE EISENBERG: Yes, that's correct.
MR. STRANG: Also a forensic anthropologist?
LESLIE EISENBERG: Yes.
MR. STRANG: Uh, a colleague or at least an acquaintance of yours?
LESLIE EISENBERG: Yes.
MR. STRANG: And, uh, because you were out of town, uh, Dr. Bennett was the first to take a look at some of the bone fragments that you later examined?
LESLIE EISENBERG: That's correct.
MR. STRANG: To your knowledge, he wasn't asked to go to the recovery scene either?
MR. FALLON: Objection. Calls for hearsay.
MR. STRANG: I -- I guess I said, "to your knowledge" and that may or may not call for hearsay. Um --
MR. FALLON: Source of the information would be for Mr. Bennett or another agent. That would --
MR. STRANG: Well, let --
MR. FALLON: -- be hearsay.
MR. STRANG: Let's -- let -- let me withdraw it and we'll go at it this way.
THE COURT: All right.
MR. STRANG: (By Attorney Strang) Uh, you and Dr. Bennett share a specific field of expertise?
LESLIE EISENBERG: That's correct.
MR. STRANG: Forensic anthropology?
LESLIE EISENBERG: Yes.
MR. STRANG: There aren't that many of you folks in the world, or at least certainly in the state of Wisconsin?
LESLIE EISENBERG: There aren't that many board certified forensic anthropologists.
MR. STRANG: He's also board certified?
LESLIE EISENBERG: He is not.
MR. STRANG: Uh, and he's someone with whom you've worked collegially at various times in the past?
LESLIE EISENBERG: Uh, initially, when I moved to Wisconsin, uh, he invited me to work with him on a number of cases.
MR. STRANG: In your field of forensic anthropology, is it reasonable to rely on, uh, information provided by another forensic anthropologist whom you know to be honest and qualified?
LESLIE EISENBERG: Um, are you asking do I make an independent assessment or do I rely on information provided by a colleague and peer?
MR. STRANG: Oh, I -- I -- I'm quite certain that you always make an independent assessment in the end, don't you?
LESLIE EISENBERG: I do.
MR. STRANG: Yes. But --
LESLIE EISENBERG: And --
MR. STRANG: And in doing --
LESLIE EISENBERG: -- and in the beginning.
MR. STRANG: Okay. And -- And in doing that, uh, because you can't be all places at all times, you have to rely on information provided by others?
LESLIE EISENBERG: Well, I think the -- the investigators had to rely on someone who was knowledgeable at the time.
MR. STRANG: No, I'm talking about you, though. I mean, you -- you got to rely -- and you do routinely rely on some information provided by others?
LESLIE EISENBERG: Certainly in terms of, uh, forensic literature, that would be a good example.
MR. STRANG: That'd be one good example. Another good example would be when you come in and you say, uh, these are bones that were found behind Steven Avery's garage. You've never seen Steven Avery's garage in person in your life, have you?
LESLIE EISENBERG: That is correct.
MR. STRANG: Okay. Um, so you're getting that kind of information from law enforcement; right?
LESLIE EISENBERG: That's correct.
MR. STRANG: Perfectly reasonable in your field to rely on law enforcement officers for that sort of information?
LESLIE EISENBERG: Yes. They are trained in investigations.
MR. STRANG: Sure. And so when they tell you this is Tag 8318 and it was found behind Steven Avery's garage, unless you have some very good reason to doubt that, that's information that you rely on as part of your work in forensic anthropology?
LESLIE EISENBERG: That is correct.
MR. STRANG: Likewise, if Dr. Ken Bennett gives you information about what he saw or what he did, unless you've got some very good reason to doubt that, it's reasonable for you to rely on it in doing your own work?
LESLIE EISENBERG: No, I don't agree with you. I --
MR. STRANG: You wouldn't rely on Dr. Bennett?
LESLIE EISENBERG: I would listen -- If he gave -- he provided me with information, I would certainly note that, but I would start my investigation from scratch, um, independent of any information he or anybody else gave me.
MR. STRANG: So if -- if Dr. Bennett had told you, this is Tag 8318, and it's from behind Steven Avery's garage, you would have said, no, I've got to start from scratch. I'm going to drive to Mishicot, Wisconsin and make sure that there's a Steven Avery who's got a garage?
LESLIE EISENBERG: Well, the information provided to Dr. Bennett -- Dr. Bennett ultimately came from law enforcement, and it would be from law enforcement that I would take that information.
MR. STRANG: Okay. All right. So what, ultimately, came from law enforcement, you know that Dr. Bennett wasn't asked to come to the scene of Steven Avery's garage either, don't you?
LESLIE EISENBERG: No, I don't know that, sir.
MR. STRANG: You don't?
LESLIE EISENBERG: I don't.
MR. STRANG: All right. Do you have any information that there was an anthropologist present anywhere at the Avery Salvage Yard during the recovery of the bones you saw?
LESLIE EISENBERG: I do not believe there was.
MR. STRANG: That wasn't so hard, was it?
MR. STRANG: Okay. Um, and what you do know is that you -- regardless of who was at the scene, you did not receive any record of where any particular fragment was found in relation to any other fragment?
LESLIE EISENBERG: That is correct.
MR. STRANG: You got -- You got sort of general locations for batches or boxes or bags of fragments?
LESLIE EISENBERG: That's true.
MR. STRANG: Area behind the garage, here's a box containing the number of fragments?
LESLIE EISENBERG: Or burn pit, here's a box.
MR. STRANG: Right.
LESLIE EISENBERG: Correct.
MR. STRANG: Or, for example, beyond the Burn Barrel No. 2?
LESLIE EISENBERG: That's correct.
MR. STRANG: Okay. And, uh -- but -- But, as you're going through the, uh -- the fragments that you received, you did not have benefit of knowing where fragment A was found in relation to fragment B or fragment C?
LESLIE EISENBERG: That is correct.
MR. STRANG: In -- indeed, we've had testimony here that part of the recovery process, uh, involved first taking a shovel or a -- a small -- smaller hand tool of some kind, both, I guess, the testimony was, scooping up, um, you know, a shovel of something out of, let's say, the burn area or the burn pit, and then putting it on a sifting tray? We've had testimony like that here. Is that consistent with your understanding of the recovery process?
LESLIE EISENBERG: I -- Unfortunately, I know little or nothing about how the recovery was undertaken.
MR. STRANG: All right. You say, "unfortunately" you know little or nothing about that. Why -- Why do you say "unfortunately"?
LESLIE EISENBERG: Well, I -- I wasn't here when the majority of the work took place, and, uh, I know only what was associated with the evidence identifier in terms of location.
MR. STRANG: Uh, you're familiar with sifting of possible human remains?
LESLIE EISENBERG: I am -- As an archaeologist and forensic anthropologist, I am.
MR. STRANG: Right. And that's -- that's, actually -- I was going to get there eventually. But, uh, your -- your day job, so to speak, is that you're the coordinator for the State Historical Society's, uh, Burial Sites Preservation Program?
LESLIE EISENBERG: That's correct.
MR. STRANG: For the state of Wisconsin?
LESLIE EISENBERG: That's correct.
MR. STRANG: And, uh, burial site preservation is something that falls into a subfield of anthropology called archaeology?
LESLIE EISENBERG: That's correct.
MR. STRANG: Um, which you could define better than I, but, essentially, it's historical, uh, focus on physical, cultural, behavioral characteristics of human beings?
LESLIE EISENBERG: Actually, my -- the majority of my experience is from prehistoric archaeological sites.
MR. STRANG: I should have said that, because it's -- We've got history and then we've got prehistory?
LESLIE EISENBERG: Right.
MR. STRANG: All the way back to, conceivably, the earliest, uh, Homo sapiens or earlier, conceivably, would fall into archaeology?
LESLIE EISENBERG: That's correct.
MR. STRANG: So, um, you're familiar with this process of sifting at, for example, a burial site?
LESLIE EISENBERG: Yes.
MR. STRANG: Now, when you -- when you sift, uh, and you're sort of shaking things through, uh, necessarily what you're doing is you're rearranging the orientation or placement of, let's say, bone fragments, uh, from what they were before being disturbed?
LESLIE EISENBERG: Depending on how they were taken from the ground and placed in the screen, that is a possibility.
MR. STRANG: Okay. If they're taken from the ground with a -- with a good, old shovel, and the shovel's turned over on the screen, we're likely to be reorienting, if you will, the placement of the bone fragments each to the other?
LESLIE EISENBERG: Well, archaeologists sift and screen all the time, and we know where that shovelful came from, and as long as what's found in the screen is associated with the location of origin, then we are just fine with that.
MR. STRANG: Sure. No, I -- I understand that you --
LESLIE EISENBERG: Right.
MR. STRANG: -- screen all the time.
LESLIE EISENBERG: Right.
MR. STRANG: I'm just saying that part of what we're doing -- Um, if this is -- you know, it's three o'clock in the afternoon, it's going to be dark in two hours, so we're going to sort of swoop and scoop, uh, part of what we're doing is we're rearranging the places of the fragments? That's all. I'm not -- I'm not --
LESLIE EISENBERG: Archaeology by its very nature is -- is a destructive endeavor, and so, in a sense, that's -- that's what happens.
MR. STRANG: Yeah. And, um, if there -- if there was not a note made of where this shovelful came, or better yet, if there was not photography taken, you know, of -- of each, let's say, a grid section or small areas, we later would not know where fragments from a particular shovelful came in in relation, at least, to any other shovelful?
LESLIE EISENBERG: That is true. I would, uh, offer, in -- in this particular case, given, um, the -- the burn fragments, the dark color, um, while photography is often -- often accompanies this kind of endeavor, photography in this case may not have been all that helpful in terms of discriminating one fragment from another.
MR. STRANG: We'll never know, because we don't have the photography?
LESLIE EISENBERG: I don't know that, but if that's what you're telling me --
MR. STRANG: You've never seen any photographs of these --
LESLIE EISENBERG: I have not.
MR. STRANG: -- of these fragments in place as found?
LESLIE EISENBERG: I have not.
MR. STRANG: Okay. Um, now, you know, obviously, archaeology is destructive in the sense that we -- we -- you and I just agreed, if we're sifting and removing things from one place and taking them to another, in a sense we're destroying the site, if you will, or rearranging, changing the placement of the bones; true?
LESLIE EISENBERG: And any other material that might be of --
MR. STRANG: And -- and any other --
LESLIE EISENBERG: Right.
MR. STRANG: -- material that might be of interest?
LESLIE EISENBERG: Right.
MR. STRANG: Um, but, you know, essentially, if we -- if we do this, we scoop it up, we put it on -- on a -- on a sifting screen, this is a little bit like taking the pieces of a jigsaw puzzle and shaking the box up?
MR. FALLON: I'm going to object to that, uh, characterization. Uh, as I recall the testimony of, uh, Mr. Ertl, he testified that this was carefully done, uh, pushed on with a shovel and then put into the sifter. It's not this swoop and scoop and let's shovel it over like we're digging a ditch. So we object to the characterization of the question -- of the question.
THE COURT: Okay. I -- Mr. Strang?
MR. STRANG: I -- I can re -- I can reframe it if --
THE COURT: My understanding was that this witness indicated she didn't actually know anything about the particular method of collection here. I understood the question to be more of a general nature.
MR. STRANG: Yes.
THE COURT: Um --
MR. STRANG: They are. But let -- let me -- let me rephrase it.
MR. STRANG: (By Attorney Strang) I -- I think the point is fairly clear, when we're -- when we're sifting and shaking to try to get smaller pieces to fall through and larger pieces to stay up in the mesh, and then we do it again with a finer mesh, we're simply -- we're simply reorienting, shaking the bones around. The fragments. True?
LESLIE EISENBERG: With -- with the ultimate goal of identifying and recovering the maximum number of items.
MR. STRANG: Well, absolutely.
LESLIE EISENBERG: Right.
MR. STRANG: Absolutely. Uh, un -- understood. Um, now, um, it is true, though, that, um, had you been at the scene, uh, you might have done this recovery differently?
MR. FALLON: Objection. Calls for speculation.
MR. STRANG: Well, I -- I -- I think she knows how she would have done a recovery.
THE COURT: Well, I'm not sure how she can answer the question if she doesn't know how it was done in the first place. I mean, she said she wasn't there. I -- I think you'll have to rephrase the question.
MR. STRANG: (By Attorney Strang) Let's go at it this way. Uh, you have participated in burial site recoveries a number of times yourself?
LESLIE EISENBERG: Of unburn -- unburned skeletons, correct.
MR. STRANG: Of unburned skeletons?
LESLIE EISENBERG: And on two occasions, um, clandestine graves.
MR. STRANG: Okay. So this -- this is work you've done, is you've been out to a -- a gravesite or we'll call it a burial site, and you've participated in recovery; correct?
LESLIE EISENBERG: That's correct.
MR. STRANG: Uh, you've directed recovery?
LESLIE EISENBERG: Yes, I have.
MR. STRANG: All right. Uh, one of the things you do, for example, at a burial site would be typically to set up a grid?
LESLIE EISENBERG: Depending on the nature of the site, maybe yes, maybe no. Every site is a little bit different. Many of the discoveries that I get called out to in association with my job for the state of Wisconsin involves an accidental disturbance of a portion of a burial. Uh, under Wisconsin law, um, excavations of burials are now prohibited without a permit. So not even an archaeologist could go out and do that.
MR. STRANG: Okay. But a -- but assuming there's no legal prohibition, and the terrain allowed it, one of the things you have done in the past is set up a grid, if you will?
LESLIE EISENBERG: That's correct.
MR. STRANG: Tell -- tell the -- the jurors what -- what you mean by a grid?
LESLIE EISENBERG: Well, one of the important things that you do want to do is, um, map or note the location of interest with respect to a known point. So that even once the excavation is completed with reference to that known point, you could go back to that spot if you needed to for some reason.
Um, the benefit, where appropriate of setting up a grid of sorts, is to provide, uh, a -- a somewhat more systematic way of recovery, uh, so ultimately you will have an idea of the relationship of different parts of the body to each other.
MR. STRANG: And so if -- if we use -- if we're using a grid to do that, we would set up the grid around and probably just beyond the area that we suspect is the burial site to be excavated or recovered?
LESLIE EISENBERG: Correct.
MR. STRANG: And then we would -- this grid would consist of some number of, essentially, squares?
LESLIE EISENBERG: Or you may choose to run a string down the middle and excavate the west half and then excavate the east half. So there are varying --
MR. STRANG: Sure.
LESLIE EISENBERG: -- degrees of -- of specificity that you --
MR. STRANG: Sure. But -- but -- but no matter how many ways we -- we divide up the space --
LESLIE EISENBERG: Um-hmm.
MR. STRANG: -- into just two with a string down the middle, or into eight, or four, or sixteen, or whatever it is, what we can do, then, is we can identify a sector of the grid in which we're working at the moment?
LESLIE EISENBERG: That's correct.
MR. STRANG: Finish that sector, document what we've taken out of there, and then move to another sector?
LESLIE EISENBERG: That's correct. And sometimes that documentation doesn't occur until you get back to the laboratory.
MR. STRANG: Um-hmm. But -- but later we'll have a record of at least what area or sector of our grid particular items have come from?
LESLIE EISENBERG: That's correct.
MR. STRANG: Um, you also, in your work, um, recovering or -- or excavating a burial site, you'll set up, uh, what you might call a contamination path?
LESLIE EISENBERG: Well, um, not necessarily. Well, with respect to forensic work, I certainly would, but -- but let me preface that by saying that, um, if I am asked to assist at a scene, um, it is not my investigation. That investigation belongs to the local jurisdiction, and if I'm invited in to assist, I may make rec -- recommendations, but that doesn't mean that I come in and call the shots. It is always someone else's investigation.
MR. STRANG: Yes. Un -- understood. And I think that's -- You know, that's consistent with my recollection, at least of the testimony we've heard here from, let's say, Crime Lab people.
LESLIE EISENBERG: Okay.
MR. STRANG: And they -- they are asked to assist as you would be on occasion? Uh, you would be brought in for your expertise; correct?
LESLIE EISENBERG: That's correct.
MR. STRANG: But you wouldn't be running the show. You'd be offering your advice which, of course, your advice is why you're being asked to attend?
LESLIE EISENBERG: Which may or may not be followed.
MR. STRANG: Right. Your advice at least would be -- If this was forensic, if something that might end up in a courtroom, your advice would be to establish something like a contamination path or a contamination corridor so that we know where we're walking in and out of the site?
LESLIE EISENBERG: Well, that would not be my job. That would be the job of -- of whoever's scene it was to maintain chain of custody, to create a contamination path and so on.
MR. STRANG: Right. And I -- and I -- I think I said you'd make a recommendation?
LESLIE EISENBERG: I don't think I would need to make that recommendation. That is part of normal police protocol.
MR. STRANG: You would expect a -- the police normally to --
LESLIE EISENBERG: Correct.
MR. STRANG: -- to do exactly that?
LESLIE EISENBERG: Okay.
MR. STRANG: And, uh, where possible, you might try to either photograph or mark, uh, items of interest, let's say? Where they lie before picking them up in any way, or scooping them, or removing them in any way?
LESLIE EISENBERG: I would certainly call the attention of a -- an item of interest to an evidence technician and -- and a scene photographer.
MR. STRANG: Sure. Where it's possible?
LESLIE EISENBERG: Correct.
MR. STRANG: And I understand here, you know, you were -- you were hypothesizing that, given the dark and charred burn quality of these bones, photography may or may not have worked?
LESLIE EISENBERG: Correct.
MR. STRANG: Um, but the nail polish, um, idea that you had, for example, later, was a way for you to later associate one bone fragment at least with a tag number --
LESLIE EISENBERG: That's correct.
MR. STRANG: -- that you were given?
LESLIE EISENBERG: That's correct.
MR. STRANG: And, conceivably, that sort of nail polish idea, or something -- some similar coding or -- of bones or fragments of bones might be done by sector of a grid?
LESLIE EISENBERG: That is -- That's a -- a possibility, yes.
MR. STRANG: Again, if -- if we're worried about where things are in relation to one another?
LESLIE EISENBERG: Correct.
MR. STRANG: Now, one of the reasons that trying to identify things when they're still in the original place can be important, uh, arises here in -- in a -- in a situation where bones have been burned, and that is that once burn -- bones are burned to a certain level, they become quite fragile?
LESLIE EISENBERG: To a -- to -- for a high temperature for a prolonged period and so on, that's correct.
MR. STRANG: Right. In fact, in your experience, very commonly a calcined bone, um, may disintegrate with any handling?
LESLIE EISENBERG: It will certainly be extremely fragile and require very careful handling.
MR. STRANG: And you may get spawling or some disintegration no matter how careful you are?
LESLIE EISENBERG: That's correct.
MR. STRANG: Uh, so if one wanted, in that situation, to see a -- a very brittle or calcined bone as found, one almost would have to photograph, or in some way record without touching, the appearance of the bone?
LESLIE EISENBERG: Yes.
MR. STRANG: Um, calcined, by the way, is -- You described that. But it -- it -- it's a -- it's a chemical change in the minerals of the bone that produces something called calx? Is that -- Is that your best understanding?
LESLIE EISENBERG: Um, I don't know the term "calx". I apologize.
MR. STRANG: C-a-l-x?
LESLIE EISENBERG: No, I don't know that term.
MR. STRANG: Okay. It's the noun. The calcine is the -- the adjective. Um -- In any event, these things have a white appearance to them?
LESLIE EISENBERG: And calcined bone can be, uh, a range of colors from blue to gray to pinks to whites to yellows, even.
MR. STRANG: And -- and it tends to be sort of powdery on the surface?
LESLIE EISENBERG: Uh, if it's taken to the extreme, yes.
MR. STRANG: Now, um, the reason you might go to the trouble in a burial recovery, um, of the grid, of a contamination path, and photographing or trying to identify things in place, is that you -- you may want to know later, when you actually do get a chance to examine bones or bone fragments up close, how close they were in distribution and placement to a human skeleton?
LESLIE EISENBERG: That's -- That would be correct.
MR. STRANG: That's sort of the point of -- of this exercise; correct?
LESLIE EISENBERG: If -- if there's any way to determine, uh, for example, what the position of the body was.
MR. STRANG: Right. So in other words, if -- if by careful recovery process we find that, essentially, uh, charred and badly burned bones without any tissue at all nevertheless are found in the place they would be, for example, if a skeleton was lying prone on its back, we will know something about whether that site was disturbed?
LESLIE EISENBERG: That's correct.
MR. STRANG: Disturbed after burning occurred?
LESLIE EISENBERG: Or as part of the burning episode.
MR. STRANG: Or as part of the burning process?
LESLIE EISENBERG: Right.
MR. STRANG: Exactly. Um, so there's a number of ways that -- I call this a cremation site, um, might -- might be disturbed. One is during the burning process?
LESLIE EISENBERG: In order to keep a -- the fire going.
MR. STRANG: Absolutely. Poking the fire? Putting fuel on? Whatever it may be?
LESLIE EISENBERG: Correct.
MR. STRANG: Okay. Uh, another way it may be disturbed after burning is, uh, animals? You know, just -- just sort of animals in the environment? May -- maybe they're rummaging around, or carrying off bones, or sort of disturbing the scene?
LESLIE EISENBERG: Uh, it's possible. Although, um, what I understand about, uh, animals, um, coming to scenes of burned human rem -- remains, typically they don't. Um, it's not, uh, like a body that may be out in the woods that's subject to coyotes and dogs and racoons, and so on.
MR. STRANG: Okay.
LESLIE EISENBERG: Typically, animals do not, um, come near burned human remains.
MR. STRANG: They aren't drawn to the burnt remains?
LESLIE EISENBERG: Correct.
MR. STRANG: Okay. A decomposing body you've seen -- you'll -- you'll see often. There's -- I know there's a better forensic term for this, but, you know, sort of animal damage as things are pulled off or carried away?
LESLIE EISENBERG: That's correct. The body, essentially, is in their territory.
MR. STRANG: Exactly.
LESLIE EISENBERG: Right.
MR. STRANG: And, um, another thing you may see, specifically, or you'd be looking for in a -- in a cremation site, is, conceivably, whether some effort was made to change the body before it was burned?
LESLIE EISENBERG: Can you be more specific?
MR. STRANG: I'm sure I can. Um, dismember a body, for example?
LESLIE EISENBERG: Uh, dismembering marks would be quite obvious even after a burning episode.
MR. STRANG: But a starting point might be, uh, you know, if, in recovering the bones, we find limbs, or bones from limbs --
LESLIE EISENBERG: Hum.
MR. STRANG: -- in places where they would not anatomically be, we would potentially look further for evidence of dismemberment?
LESLIE EISENBERG: That's correct.
MR. STRANG: We also -- In a -- in a less sort of grotesque way we might be interested, or you -- you would be interested, if you could determine the position in which a body fell, or the position in which it was lying, or standing, or whatever it was when burned?
LESLIE EISENBERG: That's correct.
MR. STRANG: And so knowing where the bones first were found might provide you some evidence from which you later could draw a conclusion about body position?
LESLIE EISENBERG: That's correct.
MR. STRANG: Now, as it happened here, um, what -- what you got was boxes and bags of fragments?
LESLIE EISENBERG: That's correct.
MR. STRANG: You, in a -- in a -- I don't know who was here in the initial sort, but sort of early in the process, you, then, tried to separate, uh, fragments, um, by areas of the body to the extent you could identify, visually, what partial bone you were looking at?
LESLIE EISENBERG: That's correct. After sorting human from nonhuman and other nonbiological items, um, the next step in the process would be, uh, identification of fragments and grouping of like fragments from the same bone, if you will.
MR. STRANG: Right. So you divided the body up into I think it was eight different categories; face and cranial --
LESLIE EISENBERG: Initially.
MR. STRANG: -- and --
LESLIE EISENBERG: Initially.
MR. STRANG: Right. And tried to separate things into those eight groups after weeding out the nonhuman and, indeed, the nonbiological --
LESLIE EISENBERG: That's correct.
MR. STRANG: -- stuff. And, uh -- and then you've already told us about how you went the next step and tried to color code, uh -- not tried, you did -- color code, um, bone fragments by tag number; correct?
LESLIE EISENBERG: Yes.
MR. STRANG: Which at least told you the approximate area that the police say they recovered those fragments from?
LESLIE EISENBERG: That's correct.
MR. STRANG: None of that, though, um -- In -- in -- in none of that were you able, then, to say, um, whether the body had been disturbed or altered in the places in which it was found?
LESLIE EISENBERG: I cannot.
MR. STRANG: Uh, if I could trouble Counsel, maybe we could go back to Exhibit 392?
MR. STRANG: (By Attorney Strang) And I'll give you -- Well, if we can get it up on the screen, you can see it from there?
LESLIE EISENBERG: I can.
MR. STRANG: Okay. Exhibit 392, I think. Um, in fact, the -- it -- it is 392. It says up in the upper left corner there?
LESLIE EISENBERG: I do see that now. Thank you.
MR. STRANG: Now, these are three pieces that you were able to fit back together?
LESLIE EISENBERG: Yes.
MR. STRANG: Um, two of them you -- you nestled right up next to each other like puzzle pieces; correct? And the third one, I guess, you left that off a little bit?
LESLIE EISENBERG: Just -- just to show that, um, by separating it, that yet there was a third piece that -- and that piece does, in fact, re-fit.
MR. STRANG: Right. It -- it slides up and fits --
LESLIE EISENBERG: It does.
MR. STRANG: -- right on there? Okay. Now, the -- the two pieces on the left have double dots of some wonderful nail polish color?
LESLIE EISENBERG: They do.
MR. STRANG: All right. And the one on the right I -- I see only one dot?
LESLIE EISENBERG: That's correct.
MR. STRANG: Only one color? Does that mean the one on the right was actually found in a different place or under a different tag number than the two on the left?
LESLIE EISENBERG: No. Uh, the two fragments on the left that each retained two different nail polish dots means something different. Um, the more orangey-red of the colors, um, that appears on each of the three fragments means that those three -- three fragments came from the original recovery Tag No. 8318. The additional -- the second dot on each of the two fragments on the left side of the screen indicate that each of those fragments showed signatures in x-ray of a material of par -- particles denser than the bone, itself. So radiopaque particles that we have talked about previously.
MR. STRANG: Fair enough. Okay. So that's -- We now understand your code. We've got these little speckles of radiopaque stuff on the two pieces on the left but not on the piece on the right?
LESLIE EISENBERG: Correct. That are not visible to the naked eye.
MR. STRANG: Very good.
MR. STRANG: We could probably take that down. Thank you very much, Mr. Kratz.
MR. STRANG: (By Attorney Strang) Um, you were involved, I think -- The very first picture, um, you were shown, and you explained for the jury, uh, showed you involved in a sifting or sorting sort of process, yourself, um, at the -- at the Dane County Morgue?
LESLIE EISENBERG: No, that photo was actually taken at the Wisconsin Crime Laboratory in Madison.
MR. STRANG: Okay. The -- the Crime Laboratory. And this -- this is, again, a process where you -- you spread things out on tarps or plastic sheets and went very carefully through a thinly spread layer of the debris or material that had been recovered?
LESLIE EISENBERG: Of -- of badly burned, uh, debris. Correct.
MR. STRANG: All right. One of the things that came out of that was, to your knowledge, the discovery of some, you could call, metal grommets or rivets here? Were you around or were you aware of discovery of some metal --
LESLIE EISENBERG: There were some metal objects that, uh, I had identified as such in my original sort on November 10.
MR. STRANG: All right. And there -- those -- those were kept as something possibly of interest?
LESLIE EISENBERG: Those were returned to the Calumet County Sheriff's Office. Correct.
MR. STRANG: Um, you also found, uh -- Do you have your reports with you by the way?
LESLIE EISENBERG: I do. And -- and I'm assuming they were also placed into evidence or have they not yet been?
MR. STRANG: One of them has.
LESLIE EISENBERG: One. Okay.
MR. STRANG: So, yeah. Don't worry about it. I'm -- I was just going to invite you, if you need to, to feel free to look at your reports.
LESLIE EISENBERG: Thank you.
MR. STRANG: This -- this isn't a closed book exam here.
LESLIE EISENBERG: Thank you.
MR. STRANG: Um, just tell us if you need to look at a report. But, uh, you -- you found, also, some, uh, pieces or remnants of fabric, um, as you sorted through, um, the bone fragments and other material at -- at various times?
LESLIE EISENBERG: That's correct.
MR. STRANG: That fragments of fabric you also kept?
LESLIE EISENBERG: They were placed, uh, usually in vials or in ziplock bags, um, marked with the evidence tag number, if they were not kept with the bones, themselves.
MR. STRANG: You -- you remember any -- any fabric frag -- fragments or scraps of fabric that looked to you like blue denim?
LESLIE EISENBERG: With as much time that's passed, I don't remember.
MR. STRANG: One way or the other? Now, um, here you may need your report, which is why I sort of warmed you up for that. Uh, if you don't, that's fine. But, uh, your recollection is that, um, the -- the -- the largest bulk of human bone fragments that you saw came in under this original tag, 8318?
LESLIE EISENBERG: Uh, I don't know if I can answer your question because I looked at so many different containers, that taken collectively may have been, um, larger in bulk. What I can tell you is that the majority of identifiable fragments probably did come from that initial collection tag 3 -- 8-3-1-8, and also provided me with, um, the initial information that allowed me to determine, uh, sex and age.
MR. STRANG: Great. That's a good start. And, uh, you also know that, uh, some of the fragments you examined came from an area east of the burn pit or the burn area?
LESLIE EISENBERG: That's correct.
MR. STRANG: You know that's -- uh, because they -- they had a separate tag number?
LESLIE EISENBERG: That's correct.
MR. STRANG: And some of the fragments that you had examined came under a tag number saying they were found north of the burn area?
LESLIE EISENBERG: That's correct.
MR. STRANG: On yet a third tag, uh, said these fragments came from west of the burn area?
LESLIE EISENBERG: That's correct.
MR. STRANG: You were aware of at least one fragment, uh, I think the initial fragment found, that came from about eight feet south of the burn area?
LESLIE EISENBERG: I do not know to which fragment you're referring.
MR. STRANG: Okay. May -- maybe that wasn't separately tagged. But we've got 8318 which comes from the burn area, is your understanding?
LESLIE EISENBERG: The burn pit sifted. Correct.
MR. STRANG: Right. The burn pit. And then east, north and west of there?
LESLIE EISENBERG: Correct.
MR. STRANG: And in -- and in each of those four groupings, under these different tag numbers, you found human bone?
LESLIE EISENBERG: May I refer to my --
MR. STRANG: Ab --
LESLIE EISENBERG: -- report?
MR. STRANG: Absolutely.
LESLIE EISENBERG: Thank you. And here I'm referring to my second report that includes a, um, basic spreadsheet of tag numbers and, uh, material that was collected under each tag number.
MR. STRANG: That's correct.
LESLIE EISENBERG: What I don't have on this list is the, um, reference location for each tag number.
MR. STRANG: Why don't you -- Why don't you try page four of your first report?
THE COURT: I think while the witness is looking at that, we will take a chance for a stretch break if anybody wants one. Go ahead.
LESLIE EISENBERG: May I ask you to repeat the question or have the question read back, please?
MR. STRANG: Sure. I, uh -- What I'm asking is you -- in -- in each of those four areas, burn area, east, north and west, you were able to identify some human bone fragment?
LESLIE EISENBERG: Um, actually, um, in the container or the package labeled "bone fragments found north end of burn pile, south end of garage", no bone was found in that, uh -- associated with that evidence tag number. Simply lots and lots of what appeared to be insulation from what may have been wire that was no longer present.
MR. STRANG: Some burned metal wire?
LESLIE EISENBERG: Well, the insula -- burned insulation, uh, kind of tubular thin insulation was --
MR. STRANG: Okay.
LESLIE EISENBERG: -- in that container.
MR. STRANG: Okay. Fair enough. Um, but east and west you did find human bone fragments?
LESLIE EISENBERG: Yes, I did.
MR. STRANG: Uh, and the -- the burn area, itself, was described to you as roughly a rectangular area, six-by-six feet, more or less?
LESLIE EISENBERG: Um, what I know of the burn area is from my reading of, uh, Trooper Timothy Austin's, uh, graphic depiction of the scene.
MR. STRANG: Which is about six feet by six feet, more or less square or rectangular?
LESLIE EISENBERG: Um, I -- There was no scale in the photo that I remembered, but, uh --
MR. STRANG: Fair enough. Okay. Uh, we've heard testimony to that, and you, of course, didn't get to hear that. You -- you have no reason to doubt the DCI agent who described the -- the burn pit?
LESLIE EISENBERG: I do not.
MR. STRANG: Okay. As six feet by six feet rectangular? Um, so let -- let me -- let me just see whether we can agree that if -- First of all, you didn't find the whole skeleton, obviously?
LESLIE EISENBERG: That -- that is true. There were -- it was impossible to reconstruct an entire skeleton.
MR. STRANG: Right. But you -- you did find at least a piece of most of the bones -- almost all of the bones in the skeleton?
LESLIE EISENBERG: Correct. And for some bones, multiple pieces.
MR. STRANG: Right. Um, in all, though, this may be helpful, um, for a -- a -- a woman of Teresa Halbach's reported height and weight, you actually have a, um -- or formula you can use to give a rough idea of what you would expect the -- the total bone weight of that skeleton to be?
LESLIE EISENBERG: Well, there has been some work done in that regard, um, by some anthropologists and -- and by some other people, and, in general, as I read that information and distill it, and, uh, figure out what everyone is saying, um, some people say there's a lot of variability based on geography, other people say it's an unreliable measure, other people give weight numbers in grams for if a -- if a fragmentary bone weighs this much, then it was likely a male, if it weighs under this amount, it was likely female, so I think there's -- there's a lot of information out there.
Um, what I've come to think about as -- as I worked on this case, is that, um, it may be more important to think in terms of volume rather than weight of fragments.
MR. STRANG: Okay.
LESLIE EISENBERG: And, um, for that, I went to some of the literature that funeral homes and crematories, uh, put out. And there's kind of a general rule of thumb, um, that says, for every pound of body weight, um -- If you're buying an urn, for example, um, you should assume one cubic inch per pound of body weight.
And, um, as I did my -- my quick calculations, um, if Ms. Halbach's weight was as it was stated on the missing person's poster, as 135 pounds, then in terms of volume, um, what would have been expected if we were able to identify every fragment as human and group them all together, um, the volume of -- of her remains after the burning incident -- incident, after cremation of sorts, if you will, would be a little larger than a two-liter bottle of soda. And I say that with all due respect.
MR. STRANG: No. I -- I understand. A little bit more than two liters?
LESLIE EISENBERG: Correct. About 2.2 liters.
MR. STRANG: Um, for a person of about that weight --
LESLIE EISENBERG: Correct. If -- if --
MR. STRANG: -- and stature?
LESLIE EISENBERG: -- um, the crematory, um, estimates for the weight to volume conversion is -- is accurate.
MR. STRANG: Right. And what you had here was substantially less than two liters of volume?
LESLIE EISENBERG: I'd say, um, probably, um, I have two- to three-fifths of what might be expected, given those rough calculations.
MR. STRANG: Okay. Fair enough. Um, so something, perhaps -- and this is all very rough -- uh, but perhaps two- to three-fifths, 40 to 60 percent of what might be a -- a complete skeleton --
LESLIE EISENBERG: Correct.
MR. STRANG: -- in total?
LESLIE EISENBERG: Um, no, that's -- I'm sorry. That's -- That's not what I said. In terms of expected volume from, uh, human remains of the stated weight for Ms. Halbach.
MR. STRANG: Yes.
LESLIE EISENBERG: I believe if -- if you filled or put those fragments into a two-liter bottle, about 40 to -- 40 percent of that bottle would be filled.
MR. STRANG: Okay.
LESLIE EISENBERG: Okay?
MR. STRANG: Great. Um, and what -- what we know, then, is that there are -- there are pieces missing?
LESLIE EISENBERG: We know there are pieces that are missing. That's correct.
MR. STRANG: Not recovered?
LESLIE EISENBERG: Or not there to recover after the burning episode.
MR. STRANG: Exactly. I mean --
LESLIE EISENBERG: Correct.
MR. STRANG: -- the reasons for not being recovered may be just complete reduction to ash or something unrecognizable by fire --
LESLIE EISENBERG: Correct.
MR. STRANG: -- or missing for some other reason?
LESLIE EISENBERG: Correct.
MR. STRANG: Um, and if, um -- if the stated height on the -- on the missing poster is about right, of 5'6, we also know that if bone -- if human bones were found east and west, and if you'll take my word that there was testimony about a bone found -- being found eight feet south, a bone fragment being found eight feet south, and then some in the middle of the burn pit, we also know that the human skeleton of someone 5'6 would not have spread to that area as it lay in place?
LESLIE EISENBERG: You're saying, for example, from head to toe?
MR. STRANG: Head to toe, you know, fingertip to fingertip?
LESLIE EISENBERG: That's correct. I also understand there were some, um, weather-related changes happening to the scene out of everybody's control --
MR. STRANG: Sure.
LESLIE EISENBERG: -- so it's possible that the heavy rains that were reported could have transported some fragments from their original location.
MR. STRANG: We -- we don't know the -- the cause, but we do know that at -- at least, if the information reported to you is accurate, we do know that we're finding human bone fragments transported away from where they would have been in terms of skeletal, uh, position or human anatomy?
LESLIE EISENBERG: In other words, the distribution of fragments is larger than what you would expect if, um, a body was placed in one location.
MR. STRANG: Well said. Exactly. And that's what I mean and that's what you mean?
LESLIE EISENBERG: Yes.
MR. STRANG: Okay. All right. So how, or what, or why, we don't know. But fragments have been -- have moved? Have been moved? Or had moved, true?
LESLIE EISENBERG: Uh, I'm relying on what you're telling me.
MR. STRANG: Okay. Um, you -- you talked a little bit about animals a while back, and I want to just tie that up quickly. Um, you saw no evidence of the site or any of the bone fragments here being disturbed by a dog, did you?
LESLIE EISENBERG: I did not.
MR. FALLON: Objection. That's two questions in one. There's the bone, themselves, and the site. That's two different --
MR. STRANG: Fair enough. Fair enough.
MR. STRANG: (By Attorney Strang) Um, let's just talk about the bone fragments, okay?
LESLIE EISENBERG: Yes.
MR. STRANG: You didn't see any evidence, um, that any of the bone fragments, the human bone fragments, that -- that you identified had been disturbed in any way by a dog?
LESLIE EISENBERG: I did not.
MR. STRANG: Now, up until now we've really been talking about one general area, um, the area behind Steven Avery's garage. Fair enough?
LESLIE EISENBERG: Yes.
MR. STRANG: And then -- but we've broken that down by some tag numbers to the burn pit. Specifically, in the east and west. North, we found -- you found noth -- no bone?
LESLIE EISENBERG: Correct.
MR. STRANG: No human bone anyway? Uh, but that -- that site, taken as a whole, okay, um, that site was not the only place from which you identified human bone fragments here?
LESLIE EISENBERG: That is correct.
MR. STRANG: Another place in which -- or from which you were able to identify human bone fragments, uh, was something called the Janda Burn Barrel No. 2?
LESLIE EISENBERG: That is correct.
MR. STRANG: Can you see me and still be heard?
LESLIE EISENBERG: Yes.
MR. STRANG: All right. Um, you talked about Trooper Austin before, and then what I'm showing you here is Exhibit 113 which, uh, has been received, and, uh, we all also know to be Trooper Austin's work. Did you come to learn, in the course of your work, the location or approximate location of the Janda Burn Barrel No. 2?
LESLIE EISENBERG: Um, once I received, um -- It was sometime in December of -- of -- it was December 1, two thousand and -- '06 when I met with Trooper Austin, um, that I learned where these barrels were located.
MR. STRANG: Why don't -- why don't you point out the, uh, location of the barrels with your laser pointer, if you would. You see four of them represented there in this -- this diagram?
LESLIE EISENBERG: Yes.
MR. STRANG: All right. Doesn't -- One of them was No. 2?
LESLIE EISENBERG: That is correct.
MR. STRANG: All right. And then if we zoom back out, can you point out the, uh, area you've been describing as behind Steven Avery's garage?
LESLIE EISENBERG: Not in -- in this view, I don't believe I can.
MR. STRANG: Okay. Do you know which is Steven Avery's garage, or no?
LESLIE EISENBERG: Um --
MR. STRANG: If you don't, that's -- that's fine.
LESLIE EISENBERG: I can't tell from -- from this perspective.
MR. STRANG: Fair enough. Okay. Um, in any event, you understood that Burn Barrel No. 2 was a barrel associated with the Janda residence, not the Avery residence?
LESLIE EISENBERG: That's correct.
MR. STRANG: Specifically, uh, the items that came to you from the, uh, Janda Burn Barrel No. 2 were tagged No. 7964?
LESLIE EISENBERG: Um, may I confirm that?
MR. STRANG: Of course. 7964.
LESLIE EISENBERG: That's correct.
MR. STRANG: That's the property or the evidence tag number for the Janda Burn --
LESLIE EISENBERG: Yes.
MR. STRANG: -- Barrel No. 2? Now, from that Burn Barrel No. 2, you were able to identify human bone?
LESLIE EISENBERG: That's correct.
MR. STRANG: You made a conclusion to a reasonable degree of scientific certainty that these were human bone and not from some other animal?
LESLIE EISENBERG: There was human bone as well as nonhuman bone in that barrel.
MR. STRANG: Fair enough. And I -- I want to be clear, but the things that you identified as human, you did so to a reasonable degree of scientific certainty in your field?
LESLIE EISENBERG: Yes, sir.
MR. STRANG: All right. I show you Exhibit 401, which I think is an exhibit from the report that you and Trooper Austin did together, am I right?
LESLIE EISENBERG: That is correct.
MR. STRANG: Do you recognize that as a diagram depicting where and -- and what types of bones you found or identified as human in the Janda Burn Barrel No. 2?
LESLIE EISENBERG: Yes, sir.
MR. STRANG: Let me see if I can make this work. Maybe I shouldn't. Leave it to Mr. Buting. Do we now have Exhibit 401 up in color on the --
LESLIE EISENBERG: Yes. Yes, you do.
MR. STRANG: Okay. Um, you identified part of a human scapula --
LESLIE EISENBERG: Yes, sir.
MR. STRANG: -- in that burn barrel? Or the shoulder blade, as you said?
LESLIE EISENBERG: A portion of the shoulder blade.
MR. STRANG: Okay. You identified one or more portions of, uh, the spinal column or the vertebrae?
LESLIE EISENBERG: Fragments from the spinal column, yes.
MR. STRANG: More than one?
LESLIE EISENBERG: I believe there were.
MR. STRANG: Okay. Uh, identified one or more bones from the hand? Metacarpals?
LESLIE EISENBERG: At -- at least one.
MR. STRANG: And more than one fragment of long bones?
LESLIE EISENBERG: Yes, sir.
MR. STRANG: Now, these fragments of long bones were small enough that you weren't able to decide which of the long bones in the human body they came from?
LESLIE EISENBERG: That's correct.
MR. STRANG: Or even whether they all came from the same long bone in the human body?
LESLIE EISENBERG: That's correct.
MR. STRANG: What you can say, though, is that the human bone fragments that you found in Janda Burn Barrel No. 2 are -- were -- were not bones that -- or, you know, pieces of bones that are connected to one another, so to speak? This feels clumsy. Do you know what I'm trying to say?
LESLIE EISENBERG: Are you asking whether any of the fragments of human bone that I found in the burn barrel re-fit with one another?
MR. STRANG: Let's start there. I wasn't, but let's start with that.
LESLIE EISENBERG: I was not able to make any re-fits or re-approximations from the few bone fragments that came from the barrel.
MR. STRANG: Okay. You tried, but were not able to?
LESLIE EISENBERG: That's correct.
MR. STRANG: All right. And then I -- I was at at least one -- one greater area of generality. And, again, I -- I'm sorry, what I -- fumbling around, but the -- the -- the vertebrae that you find -- that you found are not, necessarily, in the same part of the body, so to speak, as a scapula?
LESLIE EISENBERG: I didn't find any whole vertebrae, um, but portions, I believe, of facets that allow one spinal element to stack on top of each other. So, um, what we -- what we think of as spine, most of it is that honeycomb bone that --
MR. STRANG: Right.
LESLIE EISENBERG: -- doesn't survive well in heat, fire, so, um, there were isolated fragments that could be identifiable as to location, but I could not tell you where along the spine they came from.
MR. STRANG: Okay. If -- Let -- Let's go at it this way. Sort of graphic way, and I apologize. But if -- if one were going to cut up or dismember a body, you would not expect any one limb or piece to account for all of the differing locations of bone fragment that you found in the Janda's burn barrel?
LESLIE EISENBERG: I am not sure I understand your question.
MR. STRANG: If -- If my arm had been removed, okay?
MR. STRANG: Uh, and then burned in a burn barrel, and in -- and no -- no one -- no -- no more disturbing of that burn barrel scene had happened, you might find pieces that you could associate with my arm?
LESLIE EISENBERG: That's correct.
MR. STRANG: Maybe pieces of fingers or bones in my hand? Maybe the ulna? I guess, that's the -- the radius on this side and the ulna down here? Uh, and then maybe the long bone up here?
MR. STRANG: You might find a socket or something, uh, conceivably?
LESLIE EISENBERG: I might find a piece of the shoulder joint. That's correct.
MR. STRANG: Okay. But things you might be able to then identify as coming from a distinct limb or portion of my body?
LESLIE EISENBERG: I would certainly try and do that.
MR. STRANG: Um, here, the distribution of the fragments you found did not suggest, you know, that they came from one piece of a body that might be easily removed before burning?
LESLIE EISENBERG: That's correct.
MR. STRANG: Sort of had a scattering, if you will, of fragments in that Janda burn barrel?
LESLIE EISENBERG: Scattering from throughout the body.
MR. STRANG: Yes.
MR. STRANG: Okay. Now, there was, uh -- You noticed that the, um, human bone fragments in the Janda burn barrel were charred in much the same way as the human bone fragments you found under the other evidence tags?
LESLIE EISENBERG: That's correct, sir.
MR. STRANG: Some were calcined?
LESLIE EISENBERG: Uh, I don't recall that. I'm sorry.
MR. STRANG: But the general -- the general, physical appearance of the bones in the Janda burn barrel was much like the general, physical appearance of the bones in the Steven Avery burn area or behind the garage?
LESLIE EISENBERG: That's correct.
MR. STRANG: Okay. There was a third site, um, that, uh, resulted in, uh, evidence under another tag number being brought to you, was there not?
MR. STRANG: And this would be Evidence Tag No. 8675. Did you find, uh -- Did you find Evidence Tag No. 8675 in your report?
LESLIE EISENBERG: I -- You hadn't asked me --
MR. STRANG: Oh.
LESLIE EISENBERG: -- a question or asked me to do anything --
MR. STRANG: I'm sorry.
LESLIE EISENBERG: -- so I -- I didn't look.
MR. STRANG: Okay. It -- it may be helpful to go to your discussion of Tag No. 8675?
LESLIE EISENBERG: Yes, sir.
MR. STRANG: All right. Now, do you -- do you have the Austin report with you as well?
LESLIE EISENBERG: I do not.
MR. STRANG: You do not? Okay.
MR. STRANG: I'll show this to Mr. Fallon. We'll mark this.
(Exhibit No. 402 marked for identification.)
MR. STRANG: (By Attorney Strang) Exhibit 402. Do you recognize that?
LESLIE EISENBERG: Yes, I do, sir.
MR. STRANG: What is it?
LESLIE EISENBERG: It looks like, uh, what I would call a -- a plan view or a birdseye view of a portion, um, of the -- what's indicated here as the Avery Salvage Yard, uh, that depicts, uh, the Steven -- the approximate location of the Steven Avery res -- residence with respect to the entire salvage yard, and then somewhere southwest of there, uh, a point location, uh, from which, uh, Tag No. 8675 was identified.
MR. STRANG: Terrific. Let's put up Exhibit 402 on the ELMO. Okay. Um, this is, obviously, just a diagram, but we've got Avery Road coming down from the north, and then a box around the -- what we've heard is about a 40-acre parcel for the Avery Salvage Yard?
LESLIE EISENBERG: Yes, sir.
MR. STRANG: You see that? And then a smaller box in there. Again, that's the approximate location of Steven Avery's trailer and his garage?
MR. STRANG: And then the flag you're talking about is the site from which the materials that you were given under Exhibit -- or under Tag No. 8675 came?
LESLIE EISENBERG: That's correct.
MR. STRANG: All right. It appears to be well southwest of the Avery property?
LESLIE EISENBERG: Yes, sir.
THE COURT: Mr. Strang, can you, uh, let me know about how long this line of questioning will go?
MR. STRANG: Yes, I was -- I, actually, was going to do that. Um, I could -- I could break here comfortably, or I could do five more minutes and I would still have 30 minutes left, so...
THE COURT: All right. Then I think, uh, we'll break for today, uh, and resume tomorrow morning.
Uh, members of the jury, I'll remind you, uh, before we leave today, do not discuss the case, uh, with each other. Make sure you don't listen to any news accounts, or read anything, or watch anything on TV about the case. Uh, with that, I will excuse you for today and we'll see you tomorrow morning.
(Jurors out at 4:32 p.m.)
THE COURT: You may be seated. Uh, counsel, if you could, after you clean up, I'd like you to stop in chambers again.
MR. BUTING: Sure.
(Wherein court stands adjourned at 4:33 p.m.)