1.Leslie Eisenberg — Cross/Redirect/Recross (Part 2)
492 linesTHE COURT: At this time the Court, again, calls State of Wisconsin vs. Steven Avery, Case No. 05 CF 381. We're here for a continuation of the trial in this matter this morning. Will the parties state their appearances for the record, please.
MR. KRATZ: Good morning, Judge, the State of Wisconsin appears by Calumet County District Attorney Ken Kratz, Assistant Attorney General Tom Fallon, Assistant District Attorney Norm Gahn, all appearing as special prosecutors.
MR. STRANG: Good morning. Steven Avery is here in person. Jerome Buting represents him, Dean Strang appears on his behalf as well.
THE COURT: Is there anything this morning before we resume the defense cross-examination of Ms Eisenberg?
MR. FALLON: I just wanted to alert the Court that Mr. Strang and I are working out the final language of a stipulation that we would like to put on the record after Dr. Eisenberg completes her testimony. We're waiting for the completion of her testimony to finalize the language regarding a stipulation to save us a witness.
THE COURT: Very well. The coordinator may bring the witness in and we'll bring the jury in.
(Jury present.)
THE COURT: You may be seated. Good morning, members of the jury. When we left off yesterday afternoon the defense was conducting its cross-examination of Dr. Eisenberg. We'll resume this morning. Mr. Strang, you may continue.
COURT CLERK: You want the witness to be sworn?
THE COURT: I think we will, we've been doing that. We'll have the clerk re-swear the witness.
DR. LESLIE EISENBERG, called as a witness herein, having been first duly sworn, was examined and testified as follows:
COURT CLERK: Please be seated.
CROSS-EXAMINATION BY ATTORNEY STRANG:
MR. STRANG: Welcome back. Good morning.
LESLIE EISENBERG: Good morning to you.
MR. STRANG: Yesterday when we were broke off -- when we broke off, we were talking about a site somewhat southwest of, you know, what we have all here been calling the Avery Salvage Yard property. I want to just go back, though, a little bit to get us up there again. And, now, when I say go back a little bit, I'm going to go back to the Janda burn barrel, number two, just for a little bit. Okay.
LESLIE EISENBERG: Yes, sir.
MR. STRANG: Which was your tag -- not your tag, but tag number 7964?
LESLIE EISENBERG: That's correct.
MR. STRANG: Okay. Now, again, nowhere did you find evidence that you were looking at bone fragments from more than one body?
LESLIE EISENBERG: That is correct.
MR. STRANG: The bone fragments you saw under tag number 7964 from the burn barrel were burned, charred, some of them calcined, as they had been in the burn area?
LESLIE EISENBERG: The human bone.
MR. STRANG: Yes, the human bone, because you did find some nonhuman bone?
LESLIE EISENBERG: In the location --
MR. STRANG: In the burn area and in the burn barrel?
LESLIE EISENBERG: That's correct.
MR. STRANG: Some of them were what you called avian bone?
LESLIE EISENBERG: Avian simply is a Latin term for -- means bird bone.
MR. STRANG: A bird, right. So whether it's a chicken, or a turkey, or a pheasant, some sort of something with wings?
LESLIE EISENBERG: Yes.
MR. STRANG: All right. So you correct me if I forget to add the human, because it's ordinarily human bone I mean to be talking with you about.
LESLIE EISENBERG: Understood.
MR. STRANG: Okay. Now, one of the things we didn't cover and I want to cover with respect to the burn barrel, is when you are looking at these human bone fragments you are using not just your eyes, of course, but you are also using your sense of smell; is that fair?
LESLIE EISENBERG: That's fair.
MR. STRANG: Smelling, do I smell the odor of let's say fuel, some accelerant or something, correct?
LESLIE EISENBERG: Yes.
MR. STRANG: The only human bone fragments on which you detected an odor of some sort of accelerant or flammable fluid were the bone fragments that came out of the Janda burn barrel; is that accurate?
LESLIE EISENBERG: No, I would qualify that by saying that the container in which those human -- those fragments from 7964 associated with burn barrel number two behind the Janda residence, upon opening the container, there wasn't an odor of fuel. Whether or not they were specifically human bone, I could not say.
MR. STRANG: Very good. Thank you. Because I was not clear on your report, but that -- that makes sense. So you opened this Tupperware type container, or was this a plastic bag, some container?
LESLIE EISENBERG: A sealed lidded container.
MR. STRANG: Plastic lidded container.
LESLIE EISENBERG: Yes.
MR. STRANG: And it's there that you get the waft of some kind of flammable liquid or fluid?
LESLIE EISENBERG: Yes.
MR. STRANG: But, of course, there is no way to tell which -- which of the bone fragments or non-bone material that may be coming from?
LESLIE EISENBERG: Right, there was no way to tell from the contents of that container where that odor was coming from.
MR. STRANG: All right. Very well. Now, you did not detect the distinctive smell of burnt rubber from any of the containers you examined here that contained human bone fragments?
LESLIE EISENBERG: I did not.
MR. STRANG: And by that, I mean any of the containers, all of the tag numbers from whatever source?
LESLIE EISENBERG: I did not.
MR. STRANG: Neither did you -- did you note any residue from, let's say burnt rubber, that was visible to you, in any of the containers you examined?
LESLIE EISENBERG: No burned rubber, that's correct.
MR. STRANG: Now, if we're warmed up, I think let's go, now, back to tag number 8675 where we left off yesterday afternoon. And this is the -- get ourselves oriented again.
MR. STRANG: I want to go to the ELMO.
MR. BUTING: It may not be turned on.
MR. STRANG: (By Attorney Strang)~ Okay. This is just 402 again, which we saw yesterday, tag 8675, are the items that came to you, reportedly, from the GPS coordinates of that red flag.
LESLIE EISENBERG: That's correct.
MR. STRANG: Somewhere southwest of the Avery property?
LESLIE EISENBERG: Yes.
MR. STRANG: Have you ever seen a photograph of the Avery property, from the air?
LESLIE EISENBERG: I believe I have seen one.
MR. STRANG: All right. You may or may not be able to work with Exhibit 91, but I will show it to you. Can you orient yourself from that photograph? This is an exhibit that's been admitted, I'm sorry, I should have shown it to you; it's Exhibit 91?
LESLIE EISENBERG: Yes, I can.
MR. STRANG: Okay. You can see where the Avery salvage property is?
LESLIE EISENBERG: Yes, I can.
MR. STRANG: All right. Does it look to you like we're looking east from an airplane?
LESLIE EISENBERG: It does, because the Avery and Janda properties appear at the lower left hand corner of the salvage yard.
MR. STRANG: Terrific. Thank you. Let me pop this up on the ELMO. Okay. So, obviously, someone taking this photograph is up in an airplane? And what we're doing is we're flying probably about close to due east here.
LESLIE EISENBERG: I'm sorry, close to?
MR. STRANG: To due east.
LESLIE EISENBERG: Due east, yes.
MR. STRANG: Toward the lake. And the road coming through at an angle in the upper left corner of the picture is Highway 147.
LESLIE EISENBERG: I believe it is.
MR. STRANG: And we can see Avery Road coming down to the northeast corner of the salvage yard.
LESLIE EISENBERG: That's correct.
MR. STRANG: Okay. And what -- We can't place the location from which the material under tag number 8675 came, but we can see here that there's essentially quarry area and some wooded areas to the south of the Avery property?
LESLIE EISENBERG: Yes, that's correct.
MR. STRANG: So I'm going to refer to tag 8675 as the quarry pile; does that work?
LESLIE EISENBERG: It does, understood.
MR. STRANG: All right. Now, you found, in the material from the quarry pile, two fragments that appeared to you, in your experience, to be pelvic bone; is that right?
LESLIE EISENBERG: That's correct.
MR. STRANG: There were some cuts, appeared to be some cuts on those pelvic bone fragments?
LESLIE EISENBERG: Yes.
MR. STRANG: But you weren't able to conclude, 100 percent certain, that these were human pelvic bone fragments; do I understand that correctly?
LESLIE EISENBERG: That's correct.
MR. STRANG: Okay. Now, you suspected them of being human pelvic bone; am I understanding you correctly?
LESLIE EISENBERG: Yes.
MR. STRANG: You still suspect them of being human pelvic bone?
LESLIE EISENBERG: Suspected possible human.
MR. STRANG: Right. And part of the problem you had in identifying those as certainly human is that they were so small.
LESLIE EISENBERG: It was less their size than what the contours of the bone looked like after they were cut. But it was clearly a joint articulation at the right side of the pelvis where the pelvis meets the lower part of the spine.
MR. STRANG: You say the right side, you actually were able to say which side of the pelvis?
LESLIE EISENBERG: Yes.
MR. STRANG: Okay. And the overall thickness of those fragments was consistent with a human being?
MR. FALLON: Objection, she indicated suspected and possible and that's as far as she can go. I don't believe there's any testimony regarding consistent or non-consistent. She couldn't identify --
THE COURT: I think his question is just asking about one element of the bones, not concluding that it was a human bone. So as I understand the question, I'm going allow it.
MR. STRANG: The thickness. And actually, you know, it's a fair point.
MR. STRANG: (By Attorney Strang)~ Let me just drop back and ask you a foundational question or two before I get to that. One of the things that distinguishes human bones from even larger animal -- large animal bones, is the wall thickness of the bone, is that -- am I correct in that?
LESLIE EISENBERG: You are partially correct. It's the relationship or the ratio of the thickness of the outside of the bone to the size of what we would call the marrow cavity, the inside of the bone.
MR. STRANG: Okay. So if we have a round bone, there's a wall thickness, so to speak, and then a marrow cavity, you are describing that as, inside?
LESLIE EISENBERG: A space, like a cylinder.
MR. STRANG: Right. And then the other wall?
LESLIE EISENBERG: Correct.
MR. STRANG: And if we were looking at something like a deer, a relatively large animal, would we find, in a long bone of a deer, that the wall thickness of the bone was less than the wall thickness of a similarly length -- similarly long human bone?
LESLIE EISENBERG: No, the thickness -- the diameter, the measurement of the outside of the bone in humans would be less than that in a deer bone, for example.
MR. STRANG: Now, I think I lost you -- I mean -- You are talking about the ratio of the wall thickness to the thickness of the marrow cavity?
LESLIE EISENBERG: That's correct.
MR. STRANG: And that's -- It's a thicker wall relative to the marrow cavity in the human bone.
LESLIE EISENBERG: No, it's a thinner wall.
MR. STRANG: I have it the other way around?
LESLIE EISENBERG: Yes.
MR. STRANG: Okay. All right. So the question, then, is the thickness of the bone wall here that you observed on these two pelvic bone fragments, was that thickness at least consistent with human pelvic bone?
LESLIE EISENBERG: Let me answer your question in two parts. The first part is that the architecture or the make up of these pelvic bone cut fragments is different in character and shape than the long bones you have been talking about. The internal structure of these bones is made up almost entirely of honeycomb looking bone.
MR. STRANG: All right.
LESLIE EISENBERG: And so using the long bone as an example may not be an accurate comparison. Secondly, the thinness of the outside bone of these pelvic cut fragments is not inconsistent with the thickness I would expect to see relative to the honeycomb bone in humans.
MR. STRANG: Okay. It is not inconsistent with the human --
LESLIE EISENBERG: Correct.
MR. STRANG: -- bone. And let me ask you just maybe the simplest, most straight forward question here, is what made you suspect that these pieces of pelvic bone could be human?
LESLIE EISENBERG: The contours of the bone, and more particularly, the shape of what we call the articular surfaces, where one bone fits with another bone at the hip joint.
MR. STRANG: Those appeared consistent with a human being?
LESLIE EISENBERG: With the shape and the contours of what would be expected in a human bone.
MR. STRANG: All right.
LESLIE EISENBERG: Yeah.
MR. STRANG: Now, I would like to show you something that's not been marked as an exhibit. And I don't have a small copy of it, so I'm going to pause and tell Mr. Fallon what it is that I want to put up on the screen, if you would bear with me. I will let you in on the secret now. I'm going to show you what's marked on the CD Rom that I got from the report that you and Trooper Austin did.
LESLIE EISENBERG: Yes.
MR. STRANG: What's marked as skeleton 1, it's a JPEG file, skeleton one, okay?
LESLIE EISENBERG: Yes.
MR. STRANG: And I don't -- That's what you are about to see. Now you know. This is, again, one of these computer generated models that Trooper Austin did under your supervision?
LESLIE EISENBERG: He was not working under my supervision, but we worked cooperatively to depict my findings.
MR. STRANG: He was good with the computers, you were good with human skeletons?
LESLIE EISENBERG: Hopefully, yes.
MR. STRANG: Yes. And, again, this isn't a photograph, but what you know in looking at this model is that the features you see are consistent with an adult female human skeleton?
LESLIE EISENBERG: Without seeing this side by side with what might be a male skeleton, I will agree to that characterization.
MR. STRANG: Okay. And, look, I'm not trying to push you somewhere you don't want to go on this; this is from your report?
LESLIE EISENBERG: Yes.
MR. STRANG: Do you need to look at your report or reorient yourself to what skeleton figure 1 was?
LESLIE EISENBERG: This is from Trooper Austin's report?
MR. STRANG: Yeah, I mean, the report the two of you put together.
LESLIE EISENBERG: That's fine, I don't believe that's necessary.
MR. STRANG: Okay. So you are comfortable and I don't know, frankly, that female versus male makes a big difference on this point, but show us the pelvis.
LESLIE EISENBERG: May I approach.
MR. STRANG: We'll give you a laser point, or you can approach if you like. But ...
LESLIE EISENBERG: Thank you.
MR. STRANG: Sure.
LESLIE EISENBERG: As I mentioned yesterday, the pelvic girdle or the pelvis, that we all probably think about as one bone, is actually three different bones.
MR. STRANG: All right. You talked about the fragments you saw under tag 8675 being right pelvic bone, so let's identify that.
LESLIE EISENBERG: Okay. I should clarify, one of those -- for one of those fragments, it's impossible to side, the iliac crest that we talked about yesterday. But the other two fragments that are still articulated at a joint surface are from the right side.
MR. STRANG: So show me the right pelvic bone here, if you would. And this is obvious it's left as we're all looking to it, but when you say right or left on the human body, you are talking about as if you were in the person's skin?
LESLIE EISENBERG: When you -- and I'm sorry, I should have clarified that -- when we look at a graphic or photograph like this, computer generated image, we, in the same way we were looking at the face yesterday, we are then looking at someone who would be facing us. So the right hand side would be the person's right hand side.
MR. STRANG: Correct. Yes.
LESLIE EISENBERG: As we're facing, correct.
MR. STRANG: My right pelvic bone?
LESLIE EISENBERG: Correct.
MR. STRANG: So right pelvic bone is one of the bones, left pelvic bone is the second of the bones that make up the pelvis?
LESLIE EISENBERG: Well, they actually have fancy names, but there are a left side called the innominate, a right side called the innominate, and they both are joined, left and right, at the sacrum, which is at the base of the spine.
MR. STRANG: That's the tailbone that hurts when you slip and fall on the ice?
LESLIE EISENBERG: It's the very bottom of that bone, yes.
MR. STRANG: Okay. All right. Innominate is i-n-n-o-m-i-n-a-t-e?
LESLIE EISENBERG: That's correct.
MR. STRANG: Okay. Now -- So you actually had three bones that you thought associated with the pelvis under tag 8675 from the quarry file?
LESLIE EISENBERG: That's correct.
MR. STRANG: Two that look from the right pelvis, one from the sacroiliac -- sacroiliac?
LESLIE EISENBERG: The iliac crest, so it would be either this topmost area, what you can feel when you palpate or touch your hip, or from the right side, that's correct.
MR. STRANG: Were these fragments too small to suggest to you whether they might be male or female?
LESLIE EISENBERG: It was not a matter of sides but simply what parts of the bone we had that would not allow that determination.
MR. STRANG: When you say cuts, you saw cuts on these, are you able to be any more specific about the type of cut that you saw?
LESLIE EISENBERG: It was a long, linear cut, on either side of those two bones that were still in proximity. They were essentially a slicing cut on one side and a sharp slicing cut on the other side.
MR. STRANG: Any way to tell what instrument may have made that cut?
LESLIE EISENBERG: We --
MR. FALLON: Objection, lack of foundation.
MR. STRANG: I can ask some foundational questions --
THE COURT: Go ahead.
MR. STRANG: -- if that would help.
MR. STRANG: (By Attorney Strang)~ One of the things you do in your work is look for human damage to bones or damage caused by human agency, if you will?
LESLIE EISENBERG: If present, yes.
MR. STRANG: If present. I mean, you look for it, sometimes it's present, sometimes it's not, but you are always looking for it.
LESLIE EISENBERG: Correct.
MR. STRANG: You looked for that here?
LESLIE EISENBERG: Yes.
MR. STRANG: Damage to the bones by human agency, correct?
LESLIE EISENBERG: That's correct.
MR. STRANG: The unnatural defect that you were describing in the parietal and occipital bones yesterday was an example?
LESLIE EISENBERG: That's correct.
MR. STRANG: Another common example would be to look for evidence of cutting that you might see in bone?
LESLIE EISENBERG: That's correct.
MR. STRANG: Now, that -- that actually may give you some help on occasion in deciding whether you are looking at a human bone or an animal bone, if the piece is so small that you can't tell the difference, in the sense that animals might often be butchered and you would see signs of cutting near the ends or joints of bones?
LESLIE EISENBERG: That's correct.
MR. STRANG: Are you able to, not every time now, but on occasion are you able to draw any professional conclusions about what type of instrument may have used to cut, or is that beyond what you can do?
LESLIE EISENBERG: That is beyond my expertise and certainly would refer that kind of work out to someone who specializes in that kind of analysis.
MR. STRANG: Okay. You may have some suspicions, but wouldn't make -- wouldn't feel competent to make a final conclusion?
LESLIE EISENBERG: As to what instrument --
MR. STRANG: Right.
LESLIE EISENBERG: -- may have caused the cut? That's correct.
MR. STRANG: Are you capable of discerning the characteristic differences between a cut made by something that's sawtooth and a cut made by a smooth edge?
LESLIE EISENBERG: Visually, that is often possible to do.
MR. STRANG: But, again, a final conclusion you would refer out?
LESLIE EISENBERG: Yes, I would.
MR. STRANG: All right. Did it appear to your eyes that these cuts were -- if you could draw any conclusion at all -- that the cuts on these pelvis bones were from a smooth edged instrument or a toothed instrument?
LESLIE EISENBERG: I cannot answer your question.
MR. STRANG: Very well. But the cuts were fairly long and straight cuts?
MR. FALLON: Objection, she's indicated this is beyond her ability to answer these types of questions.
MR. STRANG: No, no. I think -- I think that you did testify to, if I heard you just a minute or so ago describing the cut more specifically -- you said -- or maybe I misheard you, they were fairly long cuts?
THE COURT: I will overrule the objection because I think the question goes to not what type of instrument it came from, but rather the appearance of what she saw in the bone.
MR. STRANG: And the Court is right.
MR. STRANG: (By Attorney Strang)~ Not interested in the instrument, just what did you see about the cut, again?
LESLIE EISENBERG: That they were straight and linear. But because of the burning and charring of the bone itself, it was difficult to make any additional observations beyond that.
MR. STRANG: All right. Could you tell, for example, whether the cut went horizontal to the ground or vertical?
LESLIE EISENBERG: If I could place those two adjoining fragments in anatomical position, which I was able to do, as part of the right pelvic structure, those cuts were made on either side, in what I would call a north/south direction, an up and down direction.
MR. STRANG: Up and down if the skeleton or person was oriented as I am now, standing up?
LESLIE EISENBERG: Correct.
MR. STRANG: Okay. These -- These three small fragments you described were not the only bone fragments that you found under tag 8675?
LESLIE EISENBERG: That's correct.
MR. STRANG: There were 10 bone fragments in total, or in addition to the pelvic bone fragments?
LESLIE EISENBERG: In addition.
MR. STRANG: Okay. So we're talking about a total of 13 bone fragments?
LESLIE EISENBERG: There were also nonhuman unboned burns -- burned --
MR. STRANG: Unburned bones?
LESLIE EISENBERG: Unburned bones. Thank you.
MR. STRANG: Okay.
LESLIE EISENBERG: Under that same tag number.
MR. STRANG: Okay. But 13 bone fragments that were burned?
LESLIE EISENBERG: Correct.
MR. STRANG: The charring and partial calcine -- calcined condition that you saw was essentially consistent with the charring and the calcined condition that you saw in human bone fragments from the Janda burn barrel and behind Steven Avery's garage?
LESLIE EISENBERG: That is correct, sir.
MR. STRANG: Of the 13 charred bone fragments under tag 8675, only one of those was -- was clearly nonhuman?
LESLIE EISENBERG: No, certainly more than one was nonhuman.
MR. STRANG: Of the 13?
LESLIE EISENBERG: Yes.
MR. STRANG: Okay. Let's go to your report. I'm interested here, I think, in the first report at page nine?
LESLIE EISENBERG: Yes, sir, I am there.
MR. STRANG: I was looking at the second full paragraph down on page nine of your first report.
LESLIE EISENBERG: Yes, sir.
MR. STRANG: So what you saw is a tag 8675 contained many elements of unburned nonhuman bone, which you just told us, right?
LESLIE EISENBERG: Yes.
MR. STRANG: And other items, as well as 10 fragments of bone with suspected cut marks?
LESLIE EISENBERG: Yes, that's what I have written.
MR. STRANG: Okay. Eight of the ten fragments, one definite nonhuman, were burned/calcined?
LESLIE EISENBERG: That's correct.
MR. STRANG: So of the -- of the eight burned bone fragments that showed suspected cut marks, of those eight, one was definitely nonhuman?
LESLIE EISENBERG: At -- At that point in my analysis, that's as much as I knew.
MR. STRANG: Okay. Were you later able to establish more in terms of separating nonhuman from human among the 10 bone fragments we're discussing now?
LESLIE EISENBERG: I was.
MR. STRANG: And what did you -- what was the separation you eventually made?
LESLIE EISENBERG: I do not have my working notes here with me in court today and I am, unfortunately, not able to answer that question with any certainty.
MR. STRANG: Just don't remember now?
LESLIE EISENBERG: I do not.
MR. STRANG: Do you remember the bottom line being that the three pelvic area bones that you have described, you continue to suspect may be human, but can't be certain?
LESLIE EISENBERG: That is correct.
MR. STRANG: And as to the other 10 charred bones, are there some that you continue to suspect may be human, but can't be certain?
LESLIE EISENBERG: There is that possibility. I should say that none of those fragments are diagnostic; in other words, I cannot associate them with one particular bone or another.
MR. STRANG: Right. And I know you can't give us a number any more among the 10 charred bone fragments that weren't pelvic, but the bottom line is that you still suspect that some of them may be human, you are not certain of that?
LESLIE EISENBERG: The three larger fragments that show burn patterns consistent with burn patterns found on human bone elsewhere on the property, yes.
MR. STRANG: Okay. Very well. Of the bone fragments under tag 8675, from the quarry pile, that you suspect may be human, were the two from the right pelvic bone, or the right innominate bone, the only -- the only two that you were able to associate with each other?
LESLIE EISENBERG: Actually, they came to me still articulated.
MR. STRANG: Oh, okay.
LESLIE EISENBERG: The bones were in anatomical position, when I received them.
MR. STRANG: As they arrived?
LESLIE EISENBERG: Correct.
MR. STRANG: Others, because they were non-diagnostic, you couldn't associate one with the other?
LESLIE EISENBERG: That's correct, non-diagnostic and much, much smaller.
MR. STRANG: So, in the same way, then, if we go back to the child's nursery rhythm, you know, the leg bone is connected to the knee bone and the knee bone is connected to the shin bone and the shinbone to the ankle bone, that kind of thing; you can't -- you are obviously unable to tell us whether these fragments were from contiguous or, you know, associated bones?
LESLIE EISENBERG: The non-bone pelvic fragments, I cannot.
MR. STRANG: What we have, then, I guess in the end, first, your conclusion was that the vast majority of human bone fragments, presented to you under all tag numbers, quarry pile, Janda burn barrel, Steven Avery's garage area, or behind Steven Avery's garage, the vast majority of the human bone fragments, from all those sites, collectively, the vast majority was found behind Steven Avery's garage?
LESLIE EISENBERG: That's correct.
MR. STRANG: All of these exhibited similar charring and calcined appearance?
LESLIE EISENBERG: That is correct.
MR. STRANG: From all three sites?
LESLIE EISENBERG: The human bone, yes.
MR. STRANG: All of them were fragmented, similarly, from the three sites, again, human bone?
LESLIE EISENBERG: That's correct.
MR. STRANG: And while you made mention yesterday, briefly, to not knowing what the weather was, you know, and whether -- whether some weather condition might have caused bone fragments to be found east or west or south of the burn pit at Steven Avery's garage; do you remember that --
LESLIE EISENBERG: Yes, I do.
MR. STRANG: -- testimony? You certainly would agree that it would be very strange weather conditions, indeed, that would transport human bone fragments from the Avery garage area into burn barrel number two on the Janda property?
LESLIE EISENBERG: In fact, I would submit there would be no weather conditions that could make that happen.
MR. STRANG: You would rule that out?
LESLIE EISENBERG: I would.
MR. STRANG: Likewise, the quarry pile?
LESLIE EISENBERG: Yes, sir.
MR. STRANG: All right. So what -- what you conclude is that by human agency the bone fragments here were moved or located where they were found?
LESLIE EISENBERG: Some bone fragments identified as human had been moved, that's correct.
MR. STRANG: Including, I think we agreed yesterday, possibly human bone fragments found in the general area behind Steven Avery's garage?
LESLIE EISENBERG: Based on some of the information you provided me with yesterday, there is some evidence for disbursal --
MR. STRANG: All right.
LESLIE EISENBERG: -- that's correct.
MR. STRANG: Now, you have no evidence that human bone fragments actually were burned at more than one site, do you?
LESLIE EISENBERG: I do not know that.
MR. STRANG: You just don't have any evidence that there were multiple burn sites, correct?
LESLIE EISENBERG: Not based on the material I was given to examine.
MR. STRANG: Right. And in any event, the burning, charring, calcining, all was roughly consistent as between the three sites: Quarry, Janda burn barrel and behind Avery's garage?
MR. FALLON: I'm going to object to that question. This is the third time that question has been asked in this context. The witness indicated that she cannot say that the bones at the quarry site were human, to a reasonable degree of scientific certainty.
MR. STRANG: Okay.
MR. FALLON: So whether they are burned, or calcined, or not charred, or burned, or whatever, is irrelevant.
MR. STRANG: Let's do it this way. I don't agree that it's irrelevant, but let me take the human qualifier out.
MR. STRANG: (By Attorney Strang)~ The bone fragments, here we have to set aside the completely non-burned bone fragments, animal bones that weren't burned.
LESLIE EISENBERG: Right.
MR. STRANG: But the burnt bone fragments that you saw from the three sites, again, all were roughly similar in their burning, charring, and calcining?
LESLIE EISENBERG: That is correct.
MR. STRANG: You are aware that the burn pit behind Mr. Avery's garage was one possible burn site, if you will, on the property that the -- the various properties that the police examined?
LESLIE EISENBERG: Yes, that's true.
MR. STRANG: That burn pit was described to you as, again, this sort of rectangular area that was at grade, but sort of surrounded by a higher mound of dirt?
LESLIE EISENBERG: I don't -- My understanding was that it was a mound itself and the pit was part of that mound; that may or may not be correct.
MR. STRANG: Right. And have you ever seen a photograph of that burn pit?
LESLIE EISENBERG: I have not.
MR. STRANG: All right. I won't show you one then. But essentially this was described to you as an open burn area, although possibly with sides to it?
LESLIE EISENBERG: Correct.
MR. STRANG: You are familiar with a burn barrel, correct? And the general idea of a burn barrel?
LESLIE EISENBERG: Yes, I am.
MR. STRANG: Seen pictures of burn barrels?
LESLIE EISENBERG: Yes.
MR. STRANG: A burn barrel here would be a possible burn site for a human cremation?
LESLIE EISENBERG: I guess anything is possible.
MR. STRANG: Well, burn barrels are used for burning things, right?
LESLIE EISENBERG: Most often not used for burning human remains --
MR. STRANG: Shouldn't be --
LESLIE EISENBERG: -- however.
MR. STRANG: Should not be used for burning human remains, but a burn barrel would be large enough to put a human being in if one wanted to.
LESLIE EISENBERG: Depending on the size of the barrel, it's possible.
MR. STRANG: Okay. And the jury has seen the barrels here, so. Were you aware of an aluminum smelter on the Avery salvage property?
LESLIE EISENBERG: Only in so far as that item was described in Trooper Austin's report.
MR. STRANG: Aware of the large wood furnace on the Avery salvage property?
LESLIE EISENBERG: I cannot say for sure.
MR. STRANG: All right. And again, then, you have no way of knowing what other possible burn sites that were in a quarry or anywhere else, in the vicinity of Mishicot, Wisconsin, of course?
LESLIE EISENBERG: That's correct.
MR. STRANG: Do you have enough experience with burnt human remains to know whether an enclosed burn area will do a faster job of cremating human remains than an unenclosed burn area?
LESLIE EISENBERG: I would respond to that by saying that's really outside of my range of expertise.
MR. STRANG: Okay. So the answer is you just don't know?
LESLIE EISENBERG: I do not know.
MR. STRANG: All right. Is it also outside your area of expertise to offer an opinion on whether a burn area that's actually fed with a source of flammable gas or fluid would cremate faster than a burn area that did not have -- was not fed by flammable gas or fluid?
LESLIE EISENBERG: Again, I would offer the same response, that's beyond my range of expertise.
MR. STRANG: What you can say is that the burnt human bone fragments that you saw from behind Steven Avery's garage, as they came to you, were consistent with human bone fragments that could have been moved to that site after burning?
LESLIE EISENBERG: I would have to answer no to that question.
MR. STRANG: Why were they inconsistent with human bone fragments that could have been moved to that site after burning?
LESLIE EISENBERG: My answer would be that, with the hypothetical transport that you are talking about, the moving of bones, I would expect to see some breakage to some fragments, or many fragments, with that transport. And the kinds of signs that I would look for for breakage would be a bone break where on the surface is the break, the break would be lighter in color than the surrounding burned bone, which would indicate to me a more recent break from handling, whatever caused that handling. And I did not see any -- anything like that.
MR. STRANG: Well, we do know that the very recovery of burn bone fragments from behind Mr. Avery's garage involved shoveling, correct?
LESLIE EISENBERG: That's correct.
MR. STRANG: Transport to a sifting screen?
LESLIE EISENBERG: Yes, sir.
MR. STRANG: Sifting on the screen, correct?
LESLIE EISENBERG: Correct.
MR. STRANG: Some of them falling through to a second screen?
LESLIE EISENBERG: Yes, sir.
MR. STRANG: Some of them falling through altogether to a tarp below?
LESLIE EISENBERG: If that's how they set it up.
MR. STRANG: All right. Possibly sifting on a second screen?
LESLIE EISENBERG: Possibly, yes.
MR. STRANG: And from all of that, you saw no breakage or spalling of the human bone fragments you looked at?
LESLIE EISENBERG: I did not.
MR. STRANG: But I think we have also established that as bones from behind the garage came to you, we have no way of knowing their relationship to one another or to the human skeletal anatomy as they were found?
LESLIE EISENBERG: We do not know the relationship of one fragment to the next, to the next, that's correct, but we do have general locational information assigned to individual tag numbers.
MR. STRANG: Right. Just behind the garage, for example?
LESLIE EISENBERG: Yes.
MR. STRANG: All right. So while shoveling and sifting may not have produced this sort of breakage, you think that bones being carried in a barrel or some other container and poured out would have produced breakage; is that your opinion?
LESLIE EISENBERG: I -- I really can't answer that question.
MR. STRANG: Okay. So you are not able to say that the bone fragments you found are inconsistent with having been transported to the burn area and poured out there?
LESLIE EISENBERG: Are you referring to the burn fragments from the burn barrel?
MR. STRANG: No, no. I'm talking about the burn fragments of human bone found behind Mr. Avery's garage?
LESLIE EISENBERG: And you are asking me, were they transported there?
MR. STRANG: No, you obviously don't know whether they were or were not transported, you weren't there.
LESLIE EISENBERG: I was not there, but based on my archaeological experience and the volume of human -- of burned human bone fragments behind the garage, I find it highly unlikely that that was not the primary burn location.
MR. STRANG: All right. But I guess that rests on an opinion that transport in a barrel or some other container, and being poured out, would have done more damage to those human bone fragments than shoveling, sifting, putting into a box and transporting to Madison would have done?
LESLIE EISENBERG: I really don't know.
MR. STRANG: You don't know one way or the other?
LESLIE EISENBERG: That's correct.
MR. STRANG: What you do know is that somehow bones were transported from one place to another place because they wound up in at least two different spots, human bones that is, behind Avery's garage and in the Janda burn barrel?
LESLIE EISENBERG: There was transport --
MR. FALLON: Objection to the question. She just indicated that there was not a transport, in her opinion, to the burn pit. So there's only one transport of human bone that the testimony has revealed, so I object to the question as mischaracterization.
THE COURT: Mr. Strang.
MR. STRANG: I don't think it's a mischaracterization at all and she certainly could answer here. The fact that she said the bones clearly were transported, moved from original location, both behind the garage and by dint of the fact that they are found in the Janda burn barrel.
THE COURT: That she -- her previous testimony was that they were moved from behind the garage?
MR. STRANG: No, no, moved somewhere, somehow the bones were moved because they were found in at least these two separate locations.
THE COURT: Let's ask her again.
MR. STRANG: (By Attorney Strang)~ Human bone fragments were moved here, that's your professional conclusion, isn't it?
LESLIE EISENBERG: There is evidence from the Avery property that there was transport of human bone. And I believe that transport occurred from the original burn pit and adjacent areas, to barrel number two.
MR. STRANG: And you base that opinion on what?
LESLIE EISENBERG: On the overwhelming majority of burned human bone fragments behind the garage, in the area and adjacent areas of the burn pit, the finding of very delicate and fragmentary dental structures within that universe, if you will, of burned human bone fragments behind the garage and absolutely none, for example, in burn barrel number two.
And it's my opinion that if transport occurred from the burn barrel to the burn pit, that there would have been a greater representation left over in the burn barrel of more of the skeleton. And I do not see that. I also would expect to see a less -- a lesser volume of material found in burn barrel number two, along with a few human bone fragments that were in there.
MR. STRANG: Well, I guess if someone was taking the burn barrel to the Avery garage area, and was trying very hard, or thought he or she had dumped everything out of the burn barrel, we might see very little in the burn barrel, that's true, isn't it?
LESLIE EISENBERG: Very little human bone or --
MR. STRANG: Yes, very little human bone in the burn barrel.
LESLIE EISENBERG: That is true, but that's also assuming that the person who does that can distinguish between human bone and nonhuman bone.
MR. STRANG: Because you saw much more nonhuman bone in the burn barrel?
LESLIE EISENBERG: Unburned nonhuman bone and larger bones -- larger nonhuman bones as well.
MR. STRANG: And some burned nonhuman bones in the burn barrel?
LESLIE EISENBERG: Some possible burned nonhuman bones in the burn barrel.
MR. STRANG: And, again, you did not see the burn barrel in place, correct?
LESLIE EISENBERG: I have never visited the property, so I have not seen the burn barrel in place.
MR. STRANG: The contents of the burn barrel came to you in one of these sealed bins.
LESLIE EISENBERG: That's correct.
MR. STRANG: So you have no idea and aren't able to tell this jury what the layering was in the burn barrel itself?
LESLIE EISENBERG: That's correct.
MR. STRANG: You found, in the burn barrel, similarly, no evidence of breakage caused by transport?
LESLIE EISENBERG: That's correct.
MR. STRANG: The same would be true of the possible human bones in the quarry pile, no breakage associated with transit?
LESLIE EISENBERG: That's correct.
MR. STRANG: And just so I'm clear, everyone of these human, or suspected human bone fragments, by the time they reached you, had been transported into a plastic bin, or some container, and then transported 90 or 100 or 110 miles, whatever it is, to Madison, Wisconsin?
LESLIE EISENBERG: That's correct. The quarry area contained those suspected possible human bones, that's right.
MR. STRANG: But I'm also talking about the Janda burn barrel and Steven area -- Steven Avery garage area.
LESLIE EISENBERG: That's correct. It was collected and transported to me.
MR. STRANG: All transported?
LESLIE EISENBERG: Yes.
MR. STRANG: Large number of bone fragments in a bin, lying one against the other?
LESLIE EISENBERG: Correct.
MR. STRANG: And even after all that transport, you didn't see, when you finally had a chance to look at these human bone fragments, you didn't see a sign of breakage?
LESLIE EISENBERG: I did not and I was very careful in looking for any and all evidence, to look carefully at the ends of every fragment.
MR. STRANG: Including those delicate dental structures you just mentioned a few minutes ago?
LESLIE EISENBERG: That's correct.
MR. STRANG: If I understand your opinion, Dr. Eisenberg, you think the most probable burn site here, on the evidence you have, is the area behind Steven Avery's garage?
LESLIE EISENBERG: Yes, sir.
MR. STRANG: All right. As you sit here, though, you cannot rule out another burn site as being a possible site of burning of these human bone fragments, can you?
LESLIE EISENBERG: I cannot.
MR. STRANG: You are a reasonable person?
LESLIE EISENBERG: I hope so.
MR. STRANG: I think so. And you cannot reasonably rule out another possible burn site, can you?
LESLIE EISENBERG: Based on the information I have at hand, I cannot.
MR. STRANG: That's all I have.
THE COURT: Mr. Fallon.
MR. FALLON: Thank you.
REDIRECT EXAMINATION BY ATTORNEY FALLON:
MR. FALLON: Doctor, let's start with the line of questioning regarding your finding a complete absence of breakage, spalling, and damage to these fragments after they were removed from the pit, sifted by law enforcement, and transported to you. What does that tell you about the recovery efforts engaged in by the officers and Crime Lab personnel?
LESLIE EISENBERG: It indicates to me that whoever had an opportunity to handle those remains, and recover those remains, and package them, and transport them, did not add any additional damage, or did not create any artificial damage that I examined when I looked at the remains.
MR. FALLON: Given the condition of the remains, did that suggest to you that these remains were carefully extracted from their location and presented to you?
LESLIE EISENBERG: That would be the conclusion I would draw.
MR. FALLON: All right. Now, just so that we're crystal clear on this, the various fragments from the gravel pits southwest of the property, originally you were only able to determine one was clearly nonhuman. In your subsequent review and analysis, you determined several more were clearly not human; is that correct?
LESLIE EISENBERG: That's correct.
MR. FALLON: And as a matter of fact, there was only three left that you had a reasonable suspicion on that could be human; is that correct?
LESLIE EISENBERG: That could possibly be human, that is correct.
MR. FALLON: And as a matter of fact, as you sit here today, you cannot tell us that those bones, to a reasonable degree of anthropological or scientific certainty, are human, can you?
LESLIE EISENBERG: I cannot.
MR. FALLON: All right. Now, you did offer an opinion that you believe the location for the primary burning episode here was the burn pit behind the garage; is that correct?
LESLIE EISENBERG: That is correct.
MR. FALLON: Would you please elaborate for us your reasoning on that?
LESLIE EISENBERG: Number one, in the order of priority, would be that the overwhelming majority of fragments, burned fragments that were identified by me as human, were found in that location behind the garage, in and adjacent to the burn pit, that there were, in my opinion, many small, delicate, brittle fragments that would have been left behind some place else had that not been the primary burn location.
And if that had been the case, I would have been able to recognize those fragments from another location and did not, except for burn barrel number two. And that all the human bone fragments that were fragmented and badly burned from that location, show the same -- the -- approximately the same degree of charring, burning, and calcination variously throughout the material recovered in the burn pit and adjacent areas.
MR. FALLON: Since you have concluded that the burn pit was the location of the primary burning episode, tell us why, in your opinion, burn barrel number two would not have been?
LESLIE EISENBERG: I believe that burn barrel number two would not have been the primary burn location because I would have expected to find more bone fragments that I would have been able to -- bone fragments, and human bone fragments, and dental structures that I would have been able to identify as human in burn barrel number two than actually I was -- than actually were found.
MR. FALLON: Now, this may be a self-evident question, but I want to make sure that we all understand. Given the nature and condition of the fragments you examined, would it have required professional training and experience to be able to identify human from nonhuman bone, if such bones were -- for someone to transport those bones? In other words, would someone have to know human from nonhuman?
MR. STRANG: That's wildly speculative, your Honor.
MR. FALLON: Let me see if I can rephrase that or articulate that question; it's poorly worded, I agree with counsel.
MR. FALLON: (By Attorney Fallon)~ Let's keep it simple. Given the nature and condition of the charring, the calcine defect on these bones, does it take a professional such as yourself to be able to clearly identify human from nonhuman burned bone?
LESLIE EISENBERG: I would say yes, except when nonhuman bone is of a size, and intact, that someone might recognize a deer bone or some other nonhuman bone. But, yes, I would agree with you, given the charring, and burning, and calcination of the fragments, in fact, the majority of the contents of the burn pit and adjacent area, that, yes, it would take someone who has experience looking and identifying human from nonhuman bone fragments.
MR. FALLON: Would you say the same for what was found in burn barrel number two?
LESLIE EISENBERG: Yes, I would.
MR. FALLON: That's all. Thank you.
THE COURT: Any redirect (sic)?
RECROSS-EXAMINATION BY ATTORNEY STRANG:
MR. STRANG: It would take much less experience with anatomy, or identifying bone, to distinguish burn from non-burn bone, that's true?
LESLIE EISENBERG: It -- Would you ask that again, I'm sorry.
MR. STRANG: It would take much less experience to distinguish burned bone from non-burned bone, wouldn't it?
LESLIE EISENBERG: Yes, sir, it would.
MR. STRANG: You also found nonhuman bone under the tag numbers that came from -- reportedly came from behind Mr. Avery's garage?
LESLIE EISENBERG: Yes.
MR. STRANG: And taking all three sites, the quarry, the Janda burn barrel, and the Avery garage area, as a whole, for the fragments that you found that were burned, the burning charring and calcination was roughly similar from all three places, wasn't it?
MR. FALLON: Asked and answered.
THE COURT: I will allow it as a clarification of some of the other questions that have been asked.
LESLIE EISENBERG: Actually, I would say no to your question. I would indicate that in the quarry location, tag number 8675, there was nonhuman bone intact. In other words, it wasn't fragmentary, most of it, and was clearly unburned. And it was in 8675 that there was more unburned nonhuman bone than --
MR. STRANG: We're going past each other, and it's my fault. Of the burned -- I mean, you found some burned bone from all three sites?
LESLIE EISENBERG: That's correct.
MR. STRANG: And of the burned bone that you found, the condition was roughly similar in all three sites?
LESLIE EISENBERG: That is correct.
MR. STRANG: That's all. Well -- That's all.
THE COURT: Mr. Fallon, anything else?
MR. FALLON: No, thank you. The witness may be excused.
THE COURT: Right. The witness will be excused at this time. And given the time, I believe we'll take our morning break at this time. Members of the jury remember not to discuss the case among yourselves during the break.
(Jury not present.)
THE COURT: You may be seated. We'll resume in 15 minutes.
(Recess taken.)
THE COURT: Counsel, there was some mention earlier of a stipulation. Is there something the parties wish to present at this time or should we bring the jurors back in?
MR. STRANG: Mr. Fallon is doing it. We have reached a stipulation and I assume he's sort of retyping it, the language of it, your Honor.
THE COURT: Okay.
MR. STRANG: But I can't speak for him on that, I'm just assuming that. I know we agreed on the language.
THE COURT: Was it something the parties wanted to present to the jury before we begin the next witness?
MR. STRANG: I think he does, and it would make sense to do it.
THE COURT: All right. All right. Mr. Fallon, do I understand the parties have a stipulation they wish to read to the jury.
MR. FALLON: Yes, Judge. The parties -- sorry for the delay, but the parties wanted to make sure that Dr. Eisenberg's testimony was complete before we could finalize the language on a stipulation saving us the production of a witness from Virginia from the FBI Laboratory, one Dr. Les McCurdy. I don't know what the Court's preference is, if you would like one of us to read it, or the Court might want to read, it matters not to me.
THE COURT: If the parties wish, I will read it, otherwise one of you can read it.
MR. STRANG: I would think since it's a stipulation between the parties I think it would be better if Mr. Fallon read it.
THE COURT: Very well.
MR. FALLON: All right.
THE COURT: Anything else before we bring the jurors back in?
MR. FALLON: No.
THE COURT: Okay. We can bring the jurors in at this time.
MR. STRANG: Oh, you know, should move in 401 and 402 while we're waiting, your Honor.
MR. FALLON: You can do that in front of the jury and I will go along with that.
THE COURT: All right.
(Jury present.)
THE COURT: You may be seated. Mr. Strang, I understand that the defense wishes to move admission of some exhibits.
MR. STRANG: I do. I move admission of Exhibit 401, which was the skeleton diagram tag 7964, and Exhibit 402, which was a schematic map of the Avery Salvage yard, and then the quarry pile site. I also used, for demonstrative purposes, a third image of a skeleton. And it matters not to me whether that's marked and admitted or not. It was used simply for demonstrative purposes.
THE COURT: Any objection to admission of the marked exhibits?
MR. FALLON: I have no objection to the admission of 401 and 402 and nor do I think it's necessary for us to produce a photograph of the exhibit counsel used for demonstrative purposes, so.
THE COURT: Very well, 401 and 402 will then be deemed admitted.
Members of the jury at this time I believe the parties have a stipulation to present to the jury. Mr. Fallon.
MR. FALLON: Yes, thank you, Judge. The parties are agreed that bone fragments identified as human from the burn pit behind Steven Avery's garage, bone fragments identified as human from burn barrel number two behind the residence of Barb Janda, and bone fragments suspected as possible human bones from the quarry pile in the Radandt gravel pit south of the Avery Salvage Yard, were sent to the FBI Laboratory in Quantico, Virginia, on November 2nd, 2006, November 7th, 2006, and December 19th, 2006, to attempt further DNA analysis. If called to testify, Dr. Leslie McCurdy, of the FBI DNA Analysis Unit, would testify that due to the condition of the submitted bone fragments, no DNA examinations could be conducted.
THE COURT: And, Mr. Strang, is that an accurate statement of the parties stipulation?
MR. STRANG: It is. That's the stipulation as to Dr. McCurdy's testimony, were he called.
THE COURT: Thank you. Members of the jury, you may take those facts as established. And at this time, then, the State may call its next witness.