4.Marc LeBeau — Direct/Cross/Redirect/Recross (Recall)
1,742 linesTHE COURT: Very well.
DR. MARC LEBEAU, 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.
MARC LEBEAU: My name is Marc, M-a-r-c LeBeau, L-e-B-e-a-u.
DIRECT EXAMINATION BY ATTORNEY GAHN:
MARC LEBEAU: I'm the unit chief of the Chemistry Unit at the FBI Laboratory.
MARC LEBEAU: In Quantico, Virginia.
MARC LEBEAU: I have worked as the unit chief since September of 2000. And prior to that I was within the same unit at the FBI Laboratory, the Chemistry Unit, since 1994.
MARC LEBEAU: Well, as the unit chief, I oversee the day-to-day operation of that unit. That entails making decisions about the types of cases that we accept into our unit for analysis. And then assign those cases to the most experienced or the appropriate personnel that work under me.
When we receive evidence into our unit, we're typically asked to analyze for the presence of a chemical, whether or not it is in or on a piece of evidence. Then we compile our results and prepare a report. And before that report is released to the contributing agency, another duty of mine is to review the result and the report to make sure that it meets all of the quality requirements that are set forth by our Quality Assurance Department in our laboratory.
MARC LEBEAU: Well, I have a bachelor's degree in chemistry, as well as criminal justice from Central Missouri State University in Warrensburg, Missouri. I also have a master's degree in forensic science from the University of New Haven and that's in West Haven, Connecticut. And a doctorate in toxicology from St. Louis University, in St. -- I'm sorry, from the University of Maryland in Baltimore. I took an additional four years of graduate level course work at St. Louis University in the early '90s.
MR. GAHN: Now, when you say you have a doctorate, is that what is commonly referred to as having a Ph.D.?
MARC LEBEAU: Yes, it is.
MARC LEBEAU: That's correct.
MARC LEBEAU: Yes, well, when I started with the FBI Laboratory, I was thoroughly trained in the types of examinations that we typically do in our laboratory. These are examinations specifically in the area of forensic chemistry as well as forensic toxicology.
Before I started with the FBI, I worked as the laboratory manager of the St. Louis County Medical Examiner's Office in St. Louis. And I did that for about four years. I have also worked as a chemistry instructor at the University of New Haven, as well as a laboratory intern at a private toxicology laboratory in Willow Grove, Pennsylvania, called National Medical Services. And I have also worked as a laboratory technician for Monsanto Chemical Company.
MARC LEBEAU: Yes, I do.
MARC LEBEAU: Yes, I'm an active member of the Society of Forensic Toxicologists and I serve on their Board of Directors, as well as I chair one of their committees. I'm also involved with and a member of the International Association of Forensic Toxicologists. And, again, I serve on two committees within that organization. And I'm an active member of the American Academy of Forensic Sciences. And I hold a membership level of fellow within that organization, which is one of highest membership levels you can have.
MARC LEBEAU: Yes, I do.
MARC LEBEAU: Well, I attend the conferences of those three organizations pretty much annually, specifically to stay on top of current trends within our field of forensic chemistry and forensic toxicology. But also I'm often invited to put on workshops and be a guest speaker at a number of conferences.
MARC LEBEAU: Yes, it is.
MARC LEBEAU: An accredited laboratory simply means that a body of experts that will, from time to time, come into the laboratory and check your practices to ensure that you are following a set of standards that this body has set down to those that they accredit. So it's simply a quality measure so that we have consistency from one laboratory to the next.
When you are dealing with an accredited laboratory under the body that accredits the FBI Laboratory, which is known as the American Society of Crime Laboratory Directors, Laboratory Accreditation Board, or ASCLD lab, all laboratories that are accredited by that agency, we follow their same standards.
MARC LEBEAU: Yes, we're required to as part of our accreditation.
MARC LEBEAU: Proficiency testing is simply, we're provided test cases, from time to time, where we're asked -- where we don't know the results, some outside entity knows the results, and we analyze these test cases as if they were real cases and then provide those results to the referee, if you will, of those results. And they grade our results and then report back, not to just to us, but they report our result back to our accrediting body as well.
MARC LEBEAU: I have passed all of the proficiencies I have taken in the 16 years I've been employed in this business.
MARC LEBEAU: Yes, I have.
MARC LEBEAU: Well, approximately 40 to 50 times.
MARC LEBEAU: No. No, I have not.
MARC LEBEAU: Yes, I have.
MARC LEBEAU: Well, I have authored or co-authored about 15 to 20 peer reviewed journal articles, professional articles, scientific articles, that are published in professional publications.
MR. GAHN: And I have had placed in front of you an exhibit that was marked as Exhibit 433; could you tell the jurors what that is.
MARC LEBEAU: Yes, this is a copy of my curriculum vitae, essentially my resume that describes my experience.
MARC LEBEAU: Yes, I did.
MARC LEBEAU: Well, following the normal course of business at our laboratory, as the unit chief, as I indicated, I am the gatekeeper, if you will, of cases that we accept to work. And I was contacted by the local District Attorney's Office to make a determination whether or not we could provide assistance in analysis of specific evidence in this particular case.
MR. GAHN: And did you know that this was a case that involved an allegation of police planting evidence?
MARC LEBEAU: Yes, I did.
MR. GAHN: Why would a case such as that, an allegation of law enforcement officers planting evidence, be of a concern to the FBI?
MARC LEBEAU: Well, one of the areas that the FBI is responsible for investigating in this country is crimes of public corruption. This is where a politician or another public official, such as a police officer, is accused or believed to be involved in doing something illegal.
So that is an area that we are strongly involved in in our investigations at our agency. And, of course, that's a very serious allegation. If an individual is truly in that political position or in a law enforcement position and they are doing something illegal that erodes the public's trust in that agency or that individual, and we would want that, certainly, that individual, out of that office or off the street.
But, additionally, if they are being wrongly accused, we want to be involved in that investigation to help set the record straight and hopefully clear their name, if they are wrongly accused so, again, the trust can be restored.
MARC LEBEAU: I believe it did, yes.
MR. GAHN: Before we get to your conclusions, I would ask you to describe for the jurors basically what type of instrumentation did you use to perform the testing in this case?
MARC LEBEAU: Well, we used an instrument that's called a liquid chromatograph mass spectrometer. And we abbreviate that LC/MS. And then we also took that one step farther and did additional experiments with the mass spectrometer that the entire technique is what is known as LC/MS/MS. It's essentially three different instruments, if you will, that are all linked together and hand shaking with each other so that they work in tandem.
MARC LEBEAU: Well, analytical chemistry is a subset of the whole field of chemistry that, in a nutshell, just is trying to determine the chemical properties or identity of matter. Little simpler put, analytical chemistry involves trying to either identify the present -- or the chemical characteristics or the identity of an unknown substance, trying to figure out what it is. Or if there's an idea that there's a specific chemical in some material, then we will target that analysis in trying to figure out if a specific chemical is present in that substance.
MR. GAHN: And this instrumentation that you just referred to, the LC/MS/MS, is that what is used in analytical chemistry to determine these chemical compounds?
MARC LEBEAU: Yeah, it's one of the tools that we use in order to do just that, identify what a substance is, or to target a particular analysis to see if specific chemicals are in a material.
MR. GAHN: Could you very briefly, and as simply as possible, tell the jurors how this instrument works?
MARC LEBEAU: I will try. It's -- Again, it's three instruments that we're really talking about. The most simple form is to talk about it as two, the LC portion and the mass spec portion. The liquid chromatograph, or LC, it's job is simply to take a mixture of chemicals and separate them so that they are delivered to the next instrument, the mass spectrometer, one at a time.
And a good analogy to think of is, if we had a bag full of marbles and we knew that some marbles were real small, other marbles were of a medium size, and the remaining marbles were very large. And we can even complicate it a little more by saying that the large marbles are of two colors, some are blue and some are green.
If we were to put these marbles, thinking that they are chemicals, into our liquid chromatograph, the LC portion, it would take that mixture and separate them so that when they came out of the instrument, the small marbles would come out first, say one minute after they were introduced; the medium marbles would come out maybe at two minutes after they were introduced; the large marbles would come out -- or I should say the large blue marbles, perhaps, would come out at three minutes; and the green marbles would come out perhaps 15 seconds later.
So it allows that mixture to be separated into the individual components so that the next instrument only sees essentially one chemical at a time. And that's important because the next instrument is that mass spectrometer. And what that does is, it gives us the fingerprint of that chemical, breaks it apart into small pieces using a very large amount of energy, breaks it apart, and presents us a fingerprint that we can then compare.
And, essentially, all chemicals give you a different fingerprint. That's the value of a mass spectrometer, is it gives us information about the weight of the chemical as well as its fragmentation pattern that, then, we will interpret using a set of guidelines in order to determine if it matches the specific chemical we're looking for, or if we're trying to figure out what unknown chemical it is, we can match it against the data base to see what it matches.
MARC LEBEAU: Well, LC/MS has been around for decades in analytical chemistry laboratories.
MARC LEBEAU: It is. We used it in our laboratory since the early 90s.
MARC LEBEAU: Yes, it is.
MARC LEBEAU: Well, LC/MS is very widely used in the pharmaceutical industry where they are developing new drugs, they are looking for new metabolites of drugs and trying to identify what those are.
It's also used in looking at explosives, explosive residues. If a bomb is discharged, it can look for the residues of the explosive portion that caused that.
It's used to test athletes for steroids. It's used to test workers for whether or not they are smoking marijuana on the weekends.
It's also used in the food industry to look at various components in foods. It is used in agricultural chemistry as well.
MR. GAHN: I would like to switch topics a little bit now and ask you, would you explain to the jurors what EDTA is?
MARC LEBEAU: Yes, EDTA stands for ethylenediaminetetraacetic acid, and EDTA is a chemical, simply a chemical that is known as a chelating agent. And what that means is, it simply will take metals that are in the environment of this chemical and latch on to them, bind to it, and remove them from that environment that it's in.
MARC LEBEAU: EDTA is found in a lot of commercial products that we all use. It's found in your shampoo. It's found in your laundry detergent. It's found in a number of foods such as sodas. And it's found in fertilizers, just to name some.
And the reason that they are in things like detergents and shampoos is that it, again, it attaches to the metals. And I don't know if you have hard water here in this part of Wisconsin but, you know, generally hard water has a whole lot of metal in it, that's what makes it hard.
So what that shampoo will do with the EDTA in it is latch on to those metals so that it actually does a better job of cleaning, same with your detergent. So that's what EDTA is found in, a whole lot of different commercial products.
MARC LEBEAU: To bind metals, specifically, what it is used for is a chelating agent. And, then, as I indicated it, because of that binding of metals and different uses, it helps stabilize certain food products, for example. So that's why it's used. In that instance, it might be used in a laboratory setting to serve as a buffer in a reagent.
MR. GAHN: You use the word it's used to stabilize something, could you explain a little more to the jurors what you mean by a stable chemical.
MARC LEBEAU: Well, a stable chemical is one that doesn't easily break apart. That's a very simple way of explaining it. It's very rugged. It's not fragile.
MR. GAHN: Are there studies in the scientific literature, or articles about the stability of EDTA?
MARC LEBEAU: Yes, there are, there are numerous studies in the scientific literature that talk about the stability of EDTA.
MARC LEBEAU: Well, most of the studies that have been done in the past few decades are studies that are concerned with the prevalence of EDTA in the environment. As I mentioned, it's stable and it attaches to metals. And over the years, as the use of EDTA continues to be used in more and more products, what we're seeing in the environment is that it continues to build up because EDTA is so stable.
So we're finding it in wastewater and river water, find it in your soil. And what the concern is, of course, is it's taking metals out of your water, taking metals out of the soil, that are normally supposed to be there for the normal process of biology, and latching on to them, making them unusable in their normal form.
So that's what most of the studies are talking about, the stability of EDTA in the environment and the concern of it building up over time. And the difficulties of actually removing it from the environment, out of your water before you drink it, and out of soil, etcetera.
MR. GAHN: These articles or other studies, these were studies that were developed by other scientists; is that correct?
MARC LEBEAU: Yes, scientists from all over the world. These publications are from the Netherlands, from South America, from the United States, all over Europe, yeah, essentially all over the world.
MARC LEBEAU: Well, as part of work that we did around this case is we were interested to see whether or not blood that was in an EDTA tube and put onto a spot card, which is simply a card that you put a spot of blood on, if that were stored at normal room temperature environment for a number of years, would that EDTA remain in that bloodstain. And we did find that a stain that was made in May of 2004, today still were able to detect the presence of EDTA in.
MR. GAHN: So this chemical is not easily broken apart under normal environmental conditions; is that fair to say?
MARC LEBEAU: That is absolutely a correct statement.
MARC LEBEAU: Well, again, it is not a fragile chemical. It is not fragile at all. It takes very severe conditions to break it down. For example it can withstand temperatures up to 300 degrees Fahrenheit before it will break apart.
MR. GAHN: And this chemical, EDTA, is this a chemical that you could test for its presence in substances in this instrument that you talked about at the FBI?
MARC LEBEAU: Yes, absolutely.
MARC LEBEAU: Well, a blood collection tube is simply the glass test tube, if you will, that when you have blood drawn at a doctor's office it is the tube that they put your blood in.
MARC LEBEAU: Yes, there are.
MARC LEBEAU: Yes, I could.
MR. GAHN: We have prepared a -- you have prepared a PowerPoint presentation to give this description; would that be helpful to the jurors while testifying?
MARC LEBEAU: Yes, it would.
MR. GAHN: Can you -- Do you have a mechanism to back this up, I think we want a different slide initially to start with the collection tubes. And, again, I'm going to ask you to -- could you describe a little more about these different types before we get the slide set up, these different types of collection tubes and why they have different types.
MARC LEBEAU: Well, there are a number of different types of tubes. One type of tube has nothing in it; it's simply your blood goes into the tube and it's there with nothing added to it. But the majority of collection tubes that we deal with, the majority of collection tubes that we deal with have some form of a preservative or an anticoagulant in that tube. And the reason being is you want to allow this blood to be stored for some time, so it's still usable to the laboratory.
As I indicated, there are multiple types of tubes. And the way we can tell what is in the tube is simply by the color of the stopper on that tube. The color indicates what's inside the tube when it's em -- when it's-- before it's filled with blood.
So the red-stoppered tube, as you can see on the screen, has nothing in it, where as the yellow-stoppered tube has citric acid or citrate in it. The gray-stoppered tube has potassium fluoride -- I'm sorry -- sodium fluoride and potassium oxalate in that one. And then the lavender or purple-stoppered tube has this chemical EDTA.
Now, when the blood is put into these tubes, you shake them up so that the chemical additive is well mixed within the tube. And then it does its thing.
Now, if we start by looking simply at the red-stoppered tube with nothing in it, what happens is, within our blood we have blood cells, red blood cells, which you I'm sure heard of, but we also have calcium in our blood. And that's important because the calcium plays a very key role in those red blood cells staying apart from one another.
After awhile, if we don't have a preservative or an anticoagulant in that tube, what happens is those red blood cells clot. They come together and form clots within that tube, which of course makes it very difficult for laboratories to do testing on the blood.
So that's why we use these anticoagulants and preservatives in these tubes. If we look at the purple-stoppered tube, which is your EDTA tube, the EDTA is in with the blood, mixed in, with the calcium and the red blood cells. And as I said earlier, the role that EDTA plays is to bind metals, such as calcium. But it binds any metals that are present in our blood. And a lot of those metals come from our diet, from our normal metabolic processes that occur in our body.
So the EDTA is going to bind with those calcium -- the calcium, the iron, and other metals and, again, latch onto it and make it unavailable for its normal use. So that's going to prevent your blood from clotting. And that's why EDTA is in the purple-stoppered tube. What this does, as I said, we have iron floating around in our blood and we have calcium, which is the CA, iron is FE. The EDTA comes along and it complexes with those metals, complexes with the calcium and it complexes with the iron. And that's simply what the different blood collection tubes are and why EDTA, in particular, is present in these purple-stoppered tubes.
MR. GAHN: And when you did your personal stability test for EDTA, was it bloodstains from purple-topped tubes?
MARC LEBEAU: That's what was reported to us. I'm sorry, what was your question?
MR. GAHN: When you did your stability study and degradation study, was it bloodstains from purple-topped tubes?
MARC LEBEAU: Yes. Yes, they were. They were all stains that were generated from purple-stoppered tubes. Those were generated, again, in May of 2004, and we analyzed them just last week.
MR. GAHN: And the chemical that you would be looking for, just so it's clear for the jurors, in the instrumentation that you have described, again, according to this slide, what can you identify with your instrumentation?
MARC LEBEAU: Well, we specifically focused on EDTA bound to iron, as well as free EDTA. There's so much EDTA in that tube, that not all of it is used. In fact, the majority of it is not used, so there's a lot of the original EDTA still floating around, unbound to anything.
So we focused on both the unbound EDTA, the original form, as well as the EDTA that was bound to iron. And we chose the iron over calcium, simply because iron is about 10 to 30 times more abundant in our blood than is calcium, so it would make it easier to answer the question that was put before us.
MARC LEBEAU: Yes, we did.
MARC LEBEAU: We received a number of swabs that were reported to us as having been taken from bloodstains out of a Toyota RAV4, as well as control swabs that were collected in the areas near where those bloodstains were. And we also received a tube of blood in a purple-stop -- stoppered tube, a EDTA tube, that was collected from Mr. Steven Avery.
MR. GAHN: I'm going to ask Agent Fassbender to bring you what have previously been marked as Exhibits 332, 334, and 336. Dr. LeBeau, would you look at Exhibit 332, which has been already entered into evidence and testified to by Sherry Culhane as being a blood swab that she took from the dashboard of Teresa Halbach's RAV4 and she identified that as her laboratory number A-8; did you receive that?
MARC LEBEAU: I'm sorry, could you repeat the exhibit number?
MARC LEBEAU: And A?
MR. BUTING: Why don't we just read what's on the exhibit?
MARC LEBEAU: This says A-10.
MARC LEBEAU: A-8 has exhibit 336 on it.
MR. GAHN: And that was previously identified by Sherry Culhane as a bloodstain taken from the dashboard of Teresa Halbach's RAV4; did you receive that?
MARC LEBEAU: Yes, I did.
MARC LEBEAU: I can recognize our laboratory number that we placed on this packaging, as well as the initials of the technician that did perform the analysis, and my own initials.
MR. GAHN: Okay. And did you test the swabs from that bloodstain using the technology you have described to the jurors?
MARC LEBEAU: Yes, we did.
MR. GAHN: Now, I would ask you to identify for us, if you can, what would have been marked as A-12, a bloodstain from the rear passenger door of Teresa Halbach's car?
MARC LEBEAU: That's correct.
MARC LEBEAU: Exhibit 334, yes.
MR. GAHN: And, again, that has been already entered into evidence and identified by Sherry Culhane as a bloodstain--
MR. BUTING: Your Honor, I would object to counsel telling this witness what has -- describing these exhibits as something other than what this witness knows. This witness should testify to what he saw, what he was advised. But what was testified to, he has no knowledge of.
THE COURT: I agree that I don't know that this witness was in a position to say what a previous witness said, but if these exhibits have been admitted on that basis previously, I think it is help for the identification. If there's a dispute about that, then I think we should be heard. Is there a question?
MR. BUTING: Not at this time, you can proceed.
THE COURT: All right.
MR. GAHN: (By Attorney Gahn)~ And, again, Exhibit 334, did you receive that for testing in your lab?
MARC LEBEAU: Yes, we did.
MARC LEBEAU: Again, our laboratory number and the initials of both the technician that did the work, as well as myself.
MARC LEBEAU: Yes, I do.
MR. GAHN: And that is an exhibit that has been previously identified by Sherry Culhane from the State Crime Lab as a bloodstain that she took from a CD case from Teresa Halbach's RAV4; is that correct?
MARC LEBEAU: No, sir.
MARC LEBEAU: Exhibit 332 is identified by the label on the packaging as being collected from the CD case on the front passenger seat.
MARC LEBEAU: Yes, we did.
MARC LEBEAU: Again, our laboratory number written on the packaging, as well as the initials of the technician that did the work, and myself.
MR. GAHN: I'm going to ask Agent Fassbender to bring you three additional envelopes which were control swabs taken in this case. And, again, Dr. LeBeau, just the last exhibit, 332; is that marked as exhibit -- have the identifying Crime Lab No. A-10?
MARC LEBEAU: That's correct.
MARC LEBEAU: Yes.
MARC LEBEAU: This is a -- reported to be a control swab, or two control swabs that were collected from the rear passenger door area in the RAV4.
MARC LEBEAU: Yes, we did.
MARC LEBEAU: Again, our laboratory number is placed on there as well as our initials.
MARC LEBEAU: Yes, I can.
MARC LEBEAU: This is reported to be control swabs that were collected from the RAV4, off of a CD case.
MARC LEBEAU: Yes, we did.
MARC LEBEAU: Again, the laboratory number that we assigned to this case as well as our initials are on it.
MARC LEBEAU: Yes, I do.
MARC LEBEAU: Again, this is reported to be control swabs that were collected from the RAV4, in the ignition switch area of the vehicle.
MARC LEBEAU: Yes, I did.
MR. BUTING: Objection, your Honor, I think we need, for foundation purposes, when he says did you test, counsel is asking did you test this, did you test that, and he is repeatedly answering we tested, yes, we did. So I think there needs to be some clarification as to what this witness did.
THE COURT: The Court agrees, that should be clarified.
MR. GAHN: (By Attorney Gahn)~ Would you explain to the -- when I say, did you test this, I'm talking about the FBI. Would you explain to the jurors when you receive evidence, how the testing process proceeds?
MARC LEBEAU: Typically, the way we're set up is, certainly the manager of the unit isn't -- doesn't have a lot of time to spend performing the actual analyses. So, we have two levels of scientists within our unit.
We have what are called chemists, which are essentially technicians, but they are well educated technicians, many with Ph.D.s. And, then, we have examiners. And I'm -- In this role I serve as an examiner. The examiner is assigned the case and oversees the analytical work that's done on the case.
So they're the supervisor. They are in close contact with the technician that worked on the case, often times in the lab with him, helping out. But most of the analytical work is actually done by a qualified chemist.
When the work is finished, the analytical product, the results, are handed off to the examiner, who compiles the results, forms the opinion that is then put into the report, as I indicated earlier, and is sent out to the contributing agency. So it's simply an efficiency thing so that work can always be done while the examiners are out testifying on their cases.
MR. GAHN: Would you also describe to the jurors the roles that you have played yourself in the processing of this case and the analysis that was done.
MARC LEBEAU: Well, again, I supervised the entire process of this case as far as the method development, the receipt of the evidence, the decisions that were made on what was analyzed, when it was analyzed, how it was analyzed. And then took the results and compiled them, formed an opinion, my opinion, as to what they meant, wrote the report myself, issued the report after it had been reviewed by an independent scientist that works within my unit and, of course, here today to testify.
MR. GAHN: And these items of evidence that you testified to just now in front of the jury, did you personally examine these items?
MARC LEBEAU: Yes, I did.
MARC LEBEAU: Yes.
THE COURT: Actually, I think you are not going to finish before lunch, so I think I'm going to take a break at this time.
Members of the jury, we'll take our lunch break at this time, I will remind you not to discuss the case among yourselves until we resume. And we'll see you after lunch.
(Jury not present.)
THE COURT: You may be seated. Counsel, I would like to see you briefly in chambers before we break for lunch.
(Recess taken.)
(Jury present.)
THE COURT: At this time we're back on the record and Mr. Gahn you may resume.
MR. GAHN: Thank you, your Honor. Before resuming the testimony I would like to inform the Court that we have marked as exhibits, Exhibit 465, and Exhibit 466; 466 is the PowerPoint demonstration that Dr. LeBeau was using to explain his testimony for the jurors. We have probably gone through about half of it. There will be some more coming. And Exhibit 465 is a CD Rom of that PowerPoint demonstration. I would move those into evidence at this time.
MR. BUTING: No objection.
THE COURT: Very well, they are admitted.
DIRECT EXAMINATION CONTD. BY ATTORNEY GAHN:
MR. GAHN: Now, Dr. LeBeau, you just finished testifying about some of the samples that you received for testing at your laboratory, namely the three blood swabs that came are from the RAV4 and three controlled swabs, correct, that came from the RAV4?
MARC LEBEAU: Actually six control swabs, there were two of each.
MR. GAHN: Two of each. Thank you, Doctor. And did you also receive a blood sample from Steven Avery in this case?
MARC LEBEAU: I did receive a blood sample that was reported to have been taken from Steven Avery, yes.
MR. GAHN: And I'm going to ask that that be marked as an exhibit at this time and I'm going to have that brought to you for your examination.
(Exhibit No. 478 marked for identification.)
MARC LEBEAU: This is Exhibit 478.
MARC LEBEAU: Yes, I do.
MARC LEBEAU: Again, I recognize it by the initials of the technician who opened this. Some of the markings that we did place on it, unfortunately our lab number has been covered up by crime scene tape, or evidence tampering tape, rather, from the Wisconsin State Crime Lab in Madison apparently.
MR. GAHN: And if you were to open that container, would you be able to make further identifications of the blood vial that you tested in this case?
MARC LEBEAU: Yes, I would be.
MARC LEBEAU: Yes.
THE COURT: Before that happens, I recall there was some discussion about fingerprint evidence on the vial, is that -- has that matter been resolved?
THE COURT: Defense is satisfied?
MR. BUTING: Let's go to side bar for just a minute.
THE COURT: All right. Don't open it any further, please.
(Side bar taken.)
THE COURT: I should indicate for the record that during the side bar a question was raised about the evidence tape on the vial, which the parties are free to go in their examination.
It was also pointed out to the Court, that witness, in fact, does have latex gloves on, something, unfortunately, in this courtroom, I can't really see from the bench, so. But go ahead, you may proceed.
(Witness opens exhibit.)
MARC LEBEAU: I'm going to try to open it. Oh, okay, it's reversed. I'm a little concerned that I'm going to throw a vial of blood when I open this. There we go.
MARC LEBEAU: Well, this container is a shipping container to ensure that the tube inside doesn't break. It's very high density plastic material and packed on the inside with cotton and then further packaged on the inside with yet another tube that is heavy duty, like a plastic material so that the tube, if it were to break on the inside, the blood would remain, actually, in this secondary container here. It's just a safety precaution.
Opening and being able now to see the tube, I can recognize our laboratory number, as well as the initials of myself and the technician that performed the actual analyses on this blood.
MR. BUTING: May I see the tube, counsel?
MR. BUTING: I will let you hold it.
MARC LEBEAU: Okay.
MR. GAHN: (By Attorney Gahn)~ And does that blood tube that's contained in that container have the name Steven Avery written on it?
MARC LEBEAU: Yes, it does.
MR. GAHN: Now, you may put that aside for the moment. And I would like you to explain to the jurors what you mean by, what are control samples as it pertains to the control samples that were taken in this case and sent to you?
MARC LEBEAU: Well, a control sample is simply a replicate swab of the area near the stain that was collected to look for any contamination that would count for positive findings you actually find in the item that you are analyzing. So in this case, the bloodstain itself, it was a swabbing of the area around it to ensure that there wasn't any contaminants that would interfere with our particular analysis.
MARC LEBEAU: Well, for this particular case because, in part, as I indicated, EDTA is widely used in a number of commercial products. So, you would be concerned that the inside of the car, for example, may be processed with a cleaning agent that may leave a residual amount of EDTA behind. So you want to make sure that that isn't there in case you have a positive finding in the bloodstain because that could confuse the interpretation of the results.
MR. GAHN: When you receive a case submitted to you for an analysis, do you routinely take photographs of the items that are sent to you?
MARC LEBEAU: Yes, I do, as well as my staff routinely does that.
MARC LEBEAU: It is within the protocol of the whole FBI Laboratory to document -- to every extent that we can, document the evidence as it is received into the laboratory and into the unit.
MARC LEBEAU: Yes, it was.
MR. GAHN: I'm going to ask Mr. Fallon to bring you six photographs. I would like you to look at those. And if you were to take the top photograph, turn it over and identify the exhibit number, please.
MARC LEBEAU: This is Exhibit 458.
MARC LEBEAU: Yes, I do.
MARC LEBEAU: I recognize our laboratory number and the item designation we gave to this particular item of evidence.
MR. GAHN: And how does that photograph -- would you explain to the jurors how that corresponds to the evidentiary items that you have in front of you?
MARC LEBEAU: Yes, this is a photograph of the blood swab that was reported to have been taken from the ignition area in the RAV4.
MARC LEBEAU: Yes, it is.
MR. GAHN: And could you just explain to the jurors the condition of this swab when you first saw it?
MARC LEBEAU: When -- It looks exactly like you can see in the photograph, that's how we received it.
MR. BUTING: Objection, again, he's got to testify, it's not clear whether he saw it, or whether he reviewed it, or whether he is talking about his lab staff.
THE COURT: The objection is sustained.
MR. GAHN: (By Attorney Gahn)~ Did you review this photograph? I mean, have you seen this photograph before?
MARC LEBEAU: Yes.
MARC LEBEAU: Yes, I did.
MR. GAHN: And could you describe for the jurors the condition of this swab that you actually saw?
MARC LEBEAU: Again, exactly as you see on the screen, this is the condition of the swab when it was received in our laboratory and when we opened it for the first time, this is a photograph of it.
It was obvious to us that this swab had been analyzed, or at least cut at one point, previously, because it wasn't the typical rounded shape you would expect on a cotton tipped applicator. It appeared as if a portion of it had been removed and that was consistent with what we had been told had occurred with this particular swab, prior to our analysis with it.
MARC LEBEAU: Yes, it would.
MARC LEBEAU: So specifically this area here, the top portion appeared to have -- that the top had been cut off.
MR. GAHN: And does this photograph in Exhibit 458 accurately depict this swab, from the dashboard of Teresa Halbach's car, as you observed it?
MARC LEBEAU: Yes, it does.
MARC LEBEAU: This is Exhibit 459.
MR. GAHN: And how does that correspond to the evidentiary items in front of you that you have already testified about?
MARC LEBEAU: This is a photograph of a swab that was reported to have been collected from the rear passenger door area from the RAV4.
MR. GAHN: And did you personally look at the swabs that were submitted in this case from the rear passenger door area of the RAV4?
MARC LEBEAU: I did, yes.
MR. GAHN: And does the photograph, the photograph that you have, is that being displayed now on the large screen?
MARC LEBEAU: Yes, it is.
MARC LEBEAU: Again, this swab had what appeared to be blood on it. And, again, it was obvious that a portion of it had been cut or removed, prior to it arriving to our laboratory.
MR. GAHN: And does the photograph that you have in Exhibit 459 accurately depict the condition of this swab from the rear passenger door area as you observed it?
MARC LEBEAU: Yes.
MARC LEBEAU: This is Exhibit 460.
MARC LEBEAU: This is a swab that was reported to us as having been collected from the CD case that was found in the RAV4.
MARC LEBEAU: Yes, it is.
MARC LEBEAU: Yes, I did.
MARC LEBEAU: Again, this swab appeared to have been sampled previously. There did not appear to be a great deal of blood on this particular swab suggesting that there was little to begin with in the previous analysis, perhaps took the portion that would have been useful for our particular examination.
MR. GAHN: I would ask you to take the next exhibit, which would be Exhibit 461, I believe, next photograph, please, and identify that exhibit number.
MARC LEBEAU: Exhibit 461.
MARC LEBEAU: This is -- These are two control swabs, reported to us as control swabs.
MR. GAHN: And can you correspond those swabs with the evidence samples that you received for analysis?
MARC LEBEAU: Yes, these were control swabs that were collected from the area near the ignition switch.
MARC LEBEAU: Yes, they are.
MARC LEBEAU: Exhibit 462.
MARC LEBEAU: These are control swabs that were reported to us as having been collected from the area near the staining on the rear passenger door of the RAV4.
MARC LEBEAU: Exhibit 463.
MR. GAHN: Yes. Would you identify that and tell us what that -- which evidentiary item that photograph corresponds to?
MARC LEBEAU: These are control swabs that were reported to us as having been collected off the CD case that was found in the RAV4 pickup.
MR. GAHN: And all of these swabs, the controls as well as the bloodstains, did you test these samples for the presence of what you described to the jurors as EDTA?
MARC LEBEAU: Yes, I did, or we did.
MR. BUTING: I'm sorry, which is it, you said I did, we did?
MARC LEBEAU: Collectively we did it within my unit, my staff and I did, yes.
MR. GAHN: Would you explain, again, to the jurors, just how the process works at the FBI Laboratory, what your role is and the role of your technicians and what is the typical way that a case is processed?
MARC LEBEAU: Throughout the FBI laboratory we have, again, technicians that do a vast majority of the actual hands on analytical work, saving the staff that is responsible for compiling the result, reviewing the results, ensuring that all the quality standards are correctly documented in the results, preparing the report, testifying, etcetera; assuring that they are available to do their job, we have technicians that do the vast majority of the analytical work.
MARC LEBEAU: We were looking for the presence of EDTA, specifically, as well as the iron complex of EDTA. And if I could go back to the presentation I had used earlier?
MARC LEBEAU: I believe it would be.
MARC LEBEAU: So, specifically, we were looking for the free form of EDTA, this was the EDTA that was in excess and never bound to any metals in the blood sample, as well as the presence of the EDTA that actually bound to iron. And, again, we chose iron over calcium because iron tends to be present at about a 10 to 30 times higher amount in a blood sample than you would expect calcium to be there.
MR. GAHN: When was the last time your laboratory at the FBI tested for the presence of EDTA in a bloodstain?
MARC LEBEAU: The last time we, within the FBI Laboratory, analyzed a bloodstain for EDTA was in the O.J. Simpson trial in the mid 1990's.
MARC LEBEAU: Well, simply, because we haven't had any request to do the analysis since then. We -- As I indicated earlier, we don't go in search of work to do. The investigators call us and ask us if we can provide analytical assistance. We have never had a request, that I can recall, since the O.J. Simpson trial, in which prosecution was interested, or an investigation was interested in determining whether or not EDTA was in a bloodstain.
MR. GAHN: Are there routine cases and non-routine cases that are submitted to the FBI Laboratory?
MARC LEBEAU: Yes, there are routine and non-routine cases.
MARC LEBEAU: Well, we -- we do many examinations that we consider routine. And by that I mean, these we're doing, maybe not weekly, but at least monthly. Examples of this might be something like, in a bank robbery, where a individual robbing a bank is given a die pack. And that die pack goes off and leaves a stain on the clothing or on the money of that individual.
We'll analyze that stain to determine whether or not a very unique die is present that's associated with die packs. That's a very routine examination for us. We're one of the few labs in this country that do that analysis and those types of cases tend to be federal cases.
Another routine examination we do is looking at unknown powders that are mailed in threat letters. We have a whole lot of these happening throughout the country. Our laboratory tends to get these unknown powders and tries to identify what those powders actually are and assess whether or not they are a true threat. Again, that's a very routine thing.
DNA in our laboratory is as routine, essentially, as you can get it, as well as latent fingerprints. You can't get much more routine.
On the other hand, we do a whole lot of non-routine examinations. These are examinations that the state labs would not typically put together a procedure to do, because they may get this request once in their lifetime.
So we're often called upon, especially in my unit we're called upon, to develop a technique to analyze for a specific chemical, a unique chemical. And we may not do that again for a decade. It is not uncommon at all. So that would be an example of a non-routine examination.
An example of some ones that come to mind recently is looking for insulin in a syringe. Most state labs wouldn't do that. We get that request maybe every three years to do something like that.
Looking for a new drug that just recently came on the market, that cannot be a routine examination, so we would develop that as a non-routine procedure and then perform analysis on the evidence. So it's very common in our unit and it does take up a considerable amount of our time to do.
MR. GAHN: Are you familiar with the crime that has been referred to as a drug facilitated sexual assault?
MARC LEBEAU: Yes, I am.
MARC LEBEAU: Yes, I do.
MARC LEBEAU: Well, I'm considered one of the country's experts on this particular topic. I do a considerable amount of training, not just in the United States but throughout the world, on drug facilitated sexual assault and drug facilitated crimes.
I have written a number of scientific articles that have been published in peer review journals. I have also co-authored a book on drug facilitated sexual assault.
MARC LEBEAU: These are crimes that people typically think of as when someone is slipped a drug secretly and that drug knocks them out, incapacitates them so that a perpetrator can potentially assault them, sexually assault them without them resisting the attack.
MR. BUTING: Objection, to relevance at this point.
THE COURT: Mr. Gahn.
MR. GAHN: I have a few more questions and then I will wrap this up, I just wanted to show the chemical testing that was done on this drug.
MR. BUTING: And why, we test chemicals every day, what's the relevance here?
MR. GAHN: Well, that's the point of this, to show how the procedures were developed for a non-routine case. It's just a few more questions.
THE COURT: This is a foundational question for something else?
THE COURT: All right. If you can relate it, I will allow you to continue.
MR. GAHN: (By Attorney Gahn)~ Did a time come -- These drugs that are used for the drug facilitated sexual assaults, did a time come when your lab was requested to test for these for the first time?
MARC LEBEAU: Yes, of course.
MR. GAHN: And what did you do? Did you develop a procedure to test for these drugs that are used in drug facilitated sexual assaults?
MARC LEBEAU: Yes, we did.
MARC LEBEAU: Because we didn't have a procedure that had been validated and put on line, as we would call it, to do the analysis for these drugs. So there's always a first time for everything, of course, and we had to develop a method and validate it and then use it in cases. And it eventually became a very routine examination that we now conduct, but initially it was a first case where we were asked to do this analysis.
MR. GAHN: And how often do you get requests to test for chemicals that you have never tested for before?
MARC LEBEAU: I would say approximately 20 percent of our case load are requests to do unique non-routine types of examinations.
MR. GAHN: And in this case here, did you develop a procedure or a protocol to test for the presence of EDTA in bloodstains?
MARC LEBEAU: Yes, we did.
MARC LEBEAU: Yes, we did.
MR. GAHN: I'm going to ask Mr. Fallon to bring you what has been marked as Exhibit 434 and ask you to identify the document.
MARC LEBEAU: This is a copy of the procedure that we developed and used in the evidence for this case.
MR. GAHN: And was there anything in the scientific literature that helped you develop the procedures that you used in this case?
MARC LEBEAU: Yes, there was.
MR. GAHN: I'm going to ask Mr. Fallon to bring you what have been marked as Exhibits 436 and Exhibits 437 and I ask that you examine them, please. And what is Exhibit 436?
MARC LEBEAU: 436 is a article entitled The Analysis of EDTA in Dried Bloodstains by Electrospray LC/MS/MS and Ion Chromatography, published in the Journal of Analytical Toxicology, in November/December, 1997.
MARC LEBEAU: Exhibit 437 is an article entitled Determining EDTA in Blood, published in a journal entitled Analytical Chemistry, in August, 1997.
MARC LEBEAU: This is one -- The Journal of Analytical Toxicology is one of the most relied upon professional journals for individuals in the field of toxicology, but more specifically forensic toxicology.
MARC LEBEAU: Analytical Chemistry is one of the most relied upon professional journals for those that practice analytical chemistry.
MR. GAHN: And are those considered to be scholarly authoritative publications in the scientific community?
MARC LEBEAU: Absolutely.
MARC LEBEAU: Yes, they both are.
MARC LEBEAU: Peer review, what that simply means is a scientist that does research and then wants to publish that research. What they will do is write up a manuscript and submit it to the editor of that particular journal.
Now in science, what we do, we don't just publish because somebody sends us an article, but the editor has the responsibility of reviewing that article and finding experts in that area of study to review the work that was done in that particular manuscript.
So the editor sends that to reviewers, it's done blindly so no one knows who the reviewers are, except the editor. And the reviewers then make comments. They critique the manuscript, make suggestions for improvements in the science and then send those comments back to the editor who then passes those comments on to the original author of the manuscript.
Then the author of that manuscript must meet the recommendations and the suggestions of the peer reviewers and send that back to the editor who then makes a decision as to whether or not it is suitable to be published. So it's a check and balance to ensure that what is published is actually scientifically valid information.
MR. GAHN: And did you develop your protocol, which you have identified as Exhibit 434, that you developed for this case, to test for EDTA in bloodstains, based upon procedures in those two exhibits?
MARC LEBEAU: Yes, one of the things that we do, when we're looking for a method to develop, when we're deciding we need to develop a method that we don't currently have a written standard operating procedure for, we go to the literature, published literature, and we try to find a method that's been used and published by another group of scientists.
And we basically find one that meets our needs that we can apply with the instrumentation that we have in our laboratory and that will meet the needs for the particular analysis that we're being asked to perform. And the first article I referred to, Exhibit 436, from the Journal of Analytical Toxicology, this article met those needs.
We essentially based our entire method on what was published in this article, with the article, Exhibit 437, from Analytical Chemistry, supporting the ideas that were presented in the article from the Journal of Analytical Toxicology.
MR. GAHN: And did you make they improvements to the procedures that you observed in the publication from Analytical Chemistry and Analytical Toxicology?
MARC LEBEAU: I believe we did make some improvements when we put the method together and actually validated it.
MARC LEBEAU: Well, one thing we did, we used a different type of LC/MS for analysis. It was a newer technology than what was used in the 1997 publication.
Additionally, we introduced what's called an internal standard into our method. And simply what this is is a -- it's a control that we introduce into every sample as we're doing the analysis. It's a control that tells us whether or not the analysis, not for the whole batch of samples that we're running at one time, but for each individual sample, to show us that it actually worked as it was supposed to work.
Additionally, we added one more experiment than what they were suggesting to do in this paper, that looked for the free form of EDTA in not just one technique, but two techniques.
MARC LEBEAU: If I can go to the presentation.
MARC LEBEAU: It certainly will be.
MARC LEBEAU: The thought process is simply there's going to be one or two scenarios when you are dealing with the notion that blood was planted from an EDTA tube. First scenario is that bloodstain that is found at a crime scene is either there from someone bleeding, actively bleeding, such as indicated here.
If that blood then dries and a crime scene technician comes along and swabs that particular bloodstain, they are going to put some of the blood onto that swab. And then if that swab is sent into the laboratory for doing an analysis, the laboratory will look at that swab and analyze it. That's scenario one.
Second scenario is if the blood is actually planted from an EDTA tube, again, a swab from a crime scene technician, that comes along and samples that stain, again, that swab being sent to the Crime Lab to analyze the stain. So, essentially, if you look at that swab that's sent to the laboratory, you have one of two potential options here.
The first option is if you find the presence of EDTA and the iron complex of EDTA on that bloodstain, on the swab, and you don't find any significant EDTA on your controlled swab, in that area, remember I said you need to make sure that a cleaning product wasn't used that would confuse the interpretation of the results. If that's the case, you find EDTA present on that swab, then that's an indication that that blood was indeed planted or came from a tube such as a purple-topped tube.
The other scenario is that you do not find EDTA, or that metal complex of EDTA, and that would, then, suggest that the blood came from active bleeding and not from an EDTA preserved tube.
MR. GAHN: And the blood tube that you have identified as being the blood tube with the name Steven Avery, is that a purple-topped tube blood?
MARC LEBEAU: Yes, it is.
MR. GAHN: And in this case, did you follow the protocol that you developed to test for these two scenarios?
MARC LEBEAU: Yes, we did.
MR. GAHN: First, would you, please, describe to the jury the steps that you took to validate the procedures that you used in this case.
MARC LEBEAU: Well, once we had ensured that all of our instrument settings were correct, based, again, on the paper from the Journal of Analytical Toxicology, we performed the required validation steps that are a requirement of our unit, based upon the requirements of our laboratory, which, again, are based on the requirements of our accrediting body. And we performed an analysis initially to determine what our detection limit was for this particular analysis, basically, how low could we go to find EDTA.
And we did that one of two ways. We did it, first, by taking solutions of known concentration of EDTA and continuously diluting them, analyzing it, diluting it, analyzing, diluting, until we got to the point that we could no longer meet the requirements that we had written into the protocol, as far as something being a positive or a negative. When we reached that lowest concentration, that's what's called our detection limit.
Another test we did, though, is we took a tube of blood that had been preserved with EDTA and we put different size drops of blood on a microscope glass slide and we let that dry and then came along with a swab, swabbed it off, and did, again, the analysis like we wrote in this procedure, on those swabs, until the point that we could no longer detect the presence of EDTA.
And as it turned out, with that particular analysis, with the spot, the lowest volume we can accurately measure is one microliter of blood. And one microliter of blood is the equivalent of about 1/50th of a drop. So that's as low as we could accurately measure a volume out onto the microscope slide. And we were still able to find the presence of EDTA and EDTA with the iron complex on that one microliter drop.
So that, combined with the fact that our decreasing concentration suggested that we could go as low as 13 parts per million, with the analysis, 13 parts per million, we knew where we were as far as sensitivity with this particular method.
The second thing that we did was to look for the presence of interferences that would cause us some confusion when we did the analysis. Since we were dealing with blood, we looked at a number of blood specimens that were not preserved with EDTA. They had other preservatives in them and blood that had no preservatives. And we ran this through the same test. We put some of that blood onto swabs, let it dry, and then ran through the procedure.
That, again, was to demonstrate that blood doesn't interfere with the test. None of the components that are normally found in blood interferes with the test.
The third thing we did was something that's called matrix suppression, an evaluation of matrix suppression. You are putting proteins and all these other things into the instrument when you are dealing with blood. So what we wanted to also verify is that these other things, not just that they didn't interfere and cause signals that we shouldn't -- that would interfere with our ability to detect or identify EDTA, but also that the signal itself didn't drop because we were dealing with blood.
Now, this is very important when you are doing a method with LC/MS, particularly with the technique, as this paper describes, electrospray LC/MS. Because it's very well known that electrospray LC/MS, this is one of the criticisms of that particular analysis is that with some analytes other things that are in the sample can cause your signal in -- if it were this high, for example, in water, when you run it in a particular matrix, say like blood, or if you were doing food, that those things, other chemicals could cause that signal to drop.
So we had to evaluate that so we knew if this was a significant drop in the signal. And what we found is that at the very low concentration, we had an average drop in signal of about three percent. And at the very high concentration, we had a drop in signal of about a third. And, again, that's not very significant.
The next thing we did was to analyze for carryover. And this is an important concept any time we're doing chemistry, analytical chemistry, is that when you shoot a sample that has a chemical in it, you want to make sure that that sample doesn't stick around, residual amounts of that sample don't stick around and show up in the next sample that's injected. And this is a particular concern because this paper, again, from the Journal of Analytical Toxicology, talked about this being a problem with EDTA. And their recommendation in this paper, to avoid carryover to the next sample or the sample that follows, was to extract blank blood, unpreserved blood, and shoot that as a negative in between samples that were associated with the case.
So we evaluated carryover as part of our validation. And we actually found, with the system we were using today, that we had essentially no carryover. We did not find any. So I attribute that in part because technology has changed and the tubing, etcetera, within the instrument, is no longer made of metal, like it was in 1997. We're using a high density plastic material and that's probably why that occurred. But those are the steps of the validation that we undertook for this particular analysis.
MR. GAHN: And after completing this validation, did you use the LC/MS/MS technology, with the procedures that you developed, to test for the presence of EDTA in the samples that were sent to you in this case?
MARC LEBEAU: Yes, we did.
MR. GAHN: And after all these different types of analyses that you performed, were you able to reach a conclusion concerning the presence of EDTA in the control swabs from Teresa Halbach's RAV4?
MARC LEBEAU: I was.
MARC LEBEAU: We were not able to identify any presence, whatsoever, of EDTA or the EDTA iron complex on the controlled swabs, any of the controlled swabs from the RAV4.
MR. GAHN: After all these different types of analyses that were performed, were you able to reach a conclusion concerning the presence of EDTA on the blood swabs that you tested from Teresa Halbach's RAV4 that were sent to you in this case?
MARC LEBEAU: Yes, sir. Yes, I was.
MARC LEBEAU: Again, we were not able to identify any indication of the presence of EDTA or EDTA bound to iron in any of the swabs that were submitted to our laboratory that contained blood and were reported to us as being collected from the RAV4.
MR. GAHN: And after all these different types of analysis that you performed, were you able to reach a conclusion concerning the presence of EDTA in the purple-topped tube that came from Steven Avery?
MARC LEBEAU: Yes, I was.
MARC LEBEAU: That the tube of blood, the purple-stoppered tube of blood that was reported to have come from Steven Avery, did indeed contain significant amounts of EDTA in it.
MR. GAHN: Dr. LeBeau, based upon your training and experience, and based upon your test results using the LC/MS/MS technique, and based upon all the data that you reviewed and all the compilations that were done in this case, do you have an opinion, to a reasonable degree of scientific certainty, whether the bloodstains from Teresa Halbach's RAV4, that you tested, came from the vial of blood of Steven Avery that was in the Manitowoc County Clerk of Court's Office?
MARC LEBEAU: Yes, I do.
MARC LEBEAU: It's my opinion that the bloodstains that were collected from the RAV4 could not have come from the EDTA tube that was provided to us in this case.
MARC LEBEAU: Of the scenarios on the board, I think our results rule out one of those two possibilities. It would be my opinion that it could not have been from an EDTA tube.
MR. BUTING: Objection, way over broad.
THE COURT: Without any limitation, yes, sustained. I will sustain the objection. I think -- I'm sustaining the objection.
MR. GAHN: (By Attorney Gahn)~ In accordance with the two scenarios that you set out in your thought process in analyzing this case, did the planting scenario prove true?
MARC LEBEAU: No, it did not.
MR. BUTING: A break?
THE COURT: Yeah. Members of the jury, would you like a full break or a stretch break at this time. Stretch, is that enough? Okay. We'll take a stretch break at this time. You may be seated.
MR. GAHN: Before I officially pass the witness, I guess I would like to just introduce the exhibit of the report of Dr. LeBeau from the Crime lab, which has been marked as Exhibit 435.
MARC LEBEAU: Yes, Exhibit 435 is the laboratory report I prepared for this case.
MARC LEBEAU: It does, yes.
THE COURT: Is the State moving for admission of any exhibits at this time?
MR. BUTING: No objection.
THE COURT: Very well, those exhibits are admitted. And, Mr. Buting, you may begin.
MR. BUTING: This PowerPoint isn't an exhibit, is it?
MR. KRATZ: It is.
THE COURT: Which number?
MR. BUTING: I will object to that, but the others I won't.
THE COURT: What number is that?
COURT CLERK: 466.
MR. FALLON: 465.
COURT CLERK: 465 is the CD Rom.
THE COURT: All right. Do you wish to be heard, later, outside the presence of the jury?
MR. BUTING: Later.
THE COURT: The other uncontested exhibits are admitted at this time.
CROSS-EXAMINATION BY ATTORNEY BUTING:
MR. BUTING: Good afternoon, Doctor.
MARC LEBEAU: Good afternoon.
MR. BUTING: I'm sure you're anxious to get back to Virginia where it's not quite so cold.
MARC LEBEAU: It would be nice, yes.
MR. BUTING: You have your curriculum vitae up there with you?
MARC LEBEAU: Yes, I do.
MR. BUTING: And we had a little bit of talk about your expertise in drug facilitated rape cases, right?
MARC LEBEAU: That's correct.
MR. BUTING: Also sometimes called GHB drugs, one of those types of drugs?
MARC LEBEAU: One of the 60 different drugs used, yes.
MR. BUTING: Okay. That's the one that maybe most people have heard of; it's the one I have heard of, okay.
MARC LEBEAU: Okay.
MR. BUTING: When you are going through your CV you talked about how you authored or coauthored 15 to 20 articles?
MARC LEBEAU: That's correct.
MR. BUTING: How many of those articles did not involve drug facilitated rape?
MARC LEBEAU: Seventeen.
MR. BUTING: Okay. And how many of those involved postmortem fluids, analysis of postmortem fluids; do you know what I'm talking about, from deceased bodies?
MARC LEBEAU: Yes, I know what you are talking about. I'm sorry, did refer to postmortem or did not?
MR. BUTING: Did.
MARC LEBEAU: Okay. I don't know that I can answer that because -- If I can elaborate?
MR. BUTING: Well, go ahead.
MARC LEBEAU: Well, urine can be a fluid from an autopsy, a postmortem fluid, or urine can be from a living person. So an article I published about urine, it would be hard to say if that's meant to be for postmortem or living people. The same with blood. Now, obviously a liver sample or a brain sample, must be from a deceased individual.
MR. BUTING: Okay. Would you agree or disagree that the majority of your presentations and the majority of your publications involve either drug facilitated sexual assaults or the analysis of postmortem fluids?
MARC LEBEAU: I would disagree.
MR. BUTING: Okay. You do have some experience in analysis of postmortem fluids, right?
MARC LEBEAU: I certainly do.
MR. BUTING: You certainly do, yes. And, in fact, one of your more recent articles you published, holds yourself out as an expert in the area of postmortem fluid analysis, does it not?
MARC LEBEAU: I'm now sure I know --
MR. BUTING: Are you --
MARC LEBEAU: -- what article you are referring to.
MR. BUTING: Okay. Are you an expert, do you consider yourself an expert in the analysis of postmortem fluids?
MARC LEBEAU: I do, yes.
MR. BUTING: Okay. We'll return to that in a moment. You also give quite a few presentations. Just this year alone, out of -- looks like out of nine -- just one moment, please. Out of nine times that you have gone around presenting talks this year, six of those involve drug facilitated sexual assaults, right? In 2006, I'm sorry.
MARC LEBEAU: Yes, six of the presentations that I gave in 2006 were on the topic of drug facilitated crimes and drug facilitated sexual assaults.
MR. BUTING: Okay. So would you agree with me that that's one of your real specialties?
MARC LEBEAU: Yes.
MR. BUTING: And that's what you are often sought after for, by conferences?
MARC LEBEAU: It's an area that I am asked to speak on quite frequently, yes.
MR. BUTING: Have you ever, in your life, been asked to give a presentation on EDTA interpretation in bloodstains?
MARC LEBEAU: No, I have not.
MR. BUTING: You are not sought off -- you are not a sought after presenter on that particular topic, are you?
MARC LEBEAU: No, sir, I'm not.
MR. BUTING: Have you ever before testified, in a court of law, as an expert who is giving opinions about the interpretation of EDTA and bloodstains?
MARC LEBEAU: No.
MR. BUTING: This jury is privileged to be the first to hear your wisdom on this topic; isn't that right?
THE COURT: I will sustain the objection.
MR. BUTING: (By Attorney Buting)~ This jury is privileged to be the first to hear any opinions you have ever expressed in court on the analysis of EDTA in bloodstains, correct?
MARC LEBEAU: I wouldn't say they are privileged, but I would say that this is certainly the first time I'm testifying about EDTA in a bloodstain, that's correct.
MR. BUTING: And one reason is, this is the first case you have ever been asked to test -- to test for EDTA in bloodstains, isn't it?
MARC LEBEAU: That is correct.
MR. BUTING: But some of your colleagues at the FBI Laboratory did have the pleasure of testifying on that topic once before, didn't they?
MARC LEBEAU: Yes, they did.
MR. BUTING: In the O.J. Simpson case you mentioned, correct?
MARC LEBEAU: Yes.
MR. BUTING: And I believe you said that that, in fact, in 19 -- that's 10 years now, 10 years ago, right?
MARC LEBEAU: At least 10 years ago, yes.
MR. BUTING: At least 10 years ago. Okay. So in the last 10 years, nobody has come to your lab and asked for your lab to give us the benefit of your knowledge and your ability to test for EDTA in bloodstains; isn't that right?
MARC LEBEAU: It hasn't happened to me personally, not to my knowledge.
MR. BUTING: Okay. And might that be because your lab screwed up in the O.J. Simpson case?
MARC LEBEAU: No, we did not screw up, as you say, in the O.J. Simpson case.
MR. BUTING: Well, in the O.J Simpson case, correct me if I'm wrong, tests that your lab did, found EDTA in a sock, right?
MARC LEBEAU: That is correct, yes.
MR. BUTING: And the defense used your test to help acquit Mr. Simpson, didn't they?
MARC LEBEAU: Could you repeat that.
MR. BUTING: The defense used your test results in the O.J. Simpson case, your lab test results, to help acquit Mr. O.J. Simpson of that crime, didn't they?
MARC LEBEAU: That I don't know. I have no idea. I wasn't the one that performed any of the analysis of EDTA, as I testified to --
MR. BUTING: Sir --
MARC LEBEAU: -- in the O.J. Simpson case. I don't know how -- I don't know that the defense used the results or the prosecution. I don't recall that.
MR. BUTING: Were you working the FBI Lab during the O.J. Simpson case?
MARC LEBEAU: Yes, I was. I had been there approximately a year.
MR. BUTING: And you would have us believe that you weren't following what was going on with your lab's testimony in the O.J. Simpson case?
MARC LEBEAU: Actually, while that examiner was testifying, I was out on my own testimony at a bank robbery trial in Los Angeles, myself.
MR. BUTING: Ah, so you --
MARC LEBEAU: I couldn't --
MR. BUTING: So --
MARC LEBEAU: I'm sorry, so I couldn't really monitor the actual testimony in that case.
MR. BUTING: Sure, you couldn't watch it while it was going on, is what you are saying, right?
MARC LEBEAU: That's correct.
MR. BUTING: And are you telling us that you didn't follow up afterward, you didn't hear all of the discussion in the news about your lab's involvement in that case?
MARC LEBEAU: I heard what the media reported, yes. And I heard what our own chemist reported.
MR. BUTING: Sure, you talked about it in the lab, didn't you?
MARC LEBEAU: Yes.
MR. BUTING: You sat around the water cooler or the lunch table and you talked about it, right?
MARC LEBEAU: Yes, we did.
MR. BUTING: And, more than that, shortly after the O.J. Simpson case, your unit, the chemistry unit of the FBI was accused of misconduct or malfeasance of some sort that resulted in an audit by the Inspector General of the United States of America; isn't that right?
MARC LEBEAU: No, that's not correct.
THE COURT: Over --
MR. BUTING: It's foundation.
THE COURT: Overruled.
MR. BUTING: (By Attorney Buting)~ Your answer was no?
MARC LEBEAU: No, that's incorrect.
MR. BUTING: Okay. Have you read an inspector general's report from 1999 that involved an audit of your unit?
MARC LEBEAU: I have read a portion of the inspector general's report, that was a report on their audit of the FBI Laboratory.
MR. BUTING: Okay. And part of that review involved your unit, the chemistry unit, did it not?
MARC LEBEAU: Not to my recollection. It involved investigation of one chemist within the unit, same individual who worked on the FBI -- sorry -- on the O.J. Simpson case. He was specifically targeted within that investigation; it wasn't our entire unit.
MR. BUTING: Okay.
MARC LEBEAU: There were units within the FBI --
MR. BUTING: Sure.
MARC LEBEAU: -- laboratory, though, that do chemical analysis that were looked at as a whole unit, but it was not the Chemistry Unit to my recollection.
MR. BUTING: Do you know Roger Martz?
MARC LEBEAU: I do, yes.
MR. BUTING: Was he one of your colleagues at the FBI Lab in 1997?
MARC LEBEAU: Yes, he was.
MR. BUTING: Did he testify in the O.J. Simpson case?
MARC LEBEAU: Yes, he did.
MR. BUTING: Is he working in your unit any more?
MARC LEBEAU: No, he's retired from the FBI.
MR. BUTING: Took early retirement, huh?
MARC LEBEAU: That would be personnel information that I wouldn't be privy to.
MR. BUTING: Oh, of course. Well, Mr. Martz, if you read that portion of this inspector general's report, was the target of complaints about the performance of -- or about his performance on EDTA testing in the O.J. Simpson case, was he not?
MARC LEBEAU: I believe that Mr. Martz was -- there were a number of allegations made by the individual who made allegations against Mr. Martz. And there were approximately 10 individuals within the whole FBI Laboratory that this Dr. Fred Whitehurst made allegations against. Those individuals were looked at because of these allegations, the inspector general came in and looked into every allegation that was made by Mr. -- or Dr. Whitehurst.
MR. BUTING: Sir, I'm going to stop you here for a second.
MARC LEBEAU: Yes, sir.
MR. BUTING: Are you telling us now that you read the entire report?
MARC LEBEAU: No, as I -- No, sir.
MR. BUTING: Okay.
MARC LEBEAU: But I do know the history.
MR. BUTING: All right. Well, we'll get into it, question by answer -- question and answer, okay.
MARC LEBEAU: Yes.
MR. BUTING: All right. Mr. Martz is one of the esteemed authors of this Exhibit 436, isn't he?
MARC LEBEAU: Yes, he is.
MR. BUTING: In this esteemed publication of the Journal of Analytic Toxicology, right?
MARC LEBEAU: It's the Journal of Analytical Toxicology and he is one of the authors.
MR. BUTING: Forgive me. He is one of the authors, one of the four authors of this article upon which you primarily based your protocol for EDTA testing in this case, right?
MARC LEBEAU: That's exactly right, yes, sir.
MR. BUTING: The other three authors are all FBI employees, aren't they?
MARC LEBEAU: Yes, they are.
MR. BUTING: And this -- In fact, this entire article is based on the protocol that was developed for the O.J. Simpson case, by the FBI Lab, right?
MARC LEBEAU: I believe part of it is, but I don't know that the entire article is based on what was done in the O.J. Simpson --
MR. BUTING: Okay.
MARC LEBEAU: -- case.
MR. BUTING: Well, the article was written after the O.J. case was done, right?
MARC LEBEAU: Approximately two years afterwards.
MR. BUTING: And the article, in fact, is an effort to explain to the rest of the scientific world how you guys screwed up when you tested O.J. Simpson's --
THE COURT: It's cross-examination, I will allow the question and I will allow the witness to explain and answer.
MARC LEBEAU: Could I get the question again, please?
MR. BUTING: This article was written by these four agents from the FBI to explain to the rest of the scientific world how you guys, your lab, I should say, managed to screw up in the O.J. Simpson case?
MARC LEBEAU: Well, that's incorrect, on a number of levels, sir. First of all, those are not agents at the FBI Laboratory. The only one that was was Roger Martz. The others are Ph.D. scientists, chemists, or Ph.D biologist. That article was not written as any form of excuse, or explanation, for what our laboratory for -- in the O.J. Simpson case.
That was simply a group of researchers who had the lead, published group lead authors. Dr. Mark Miller, as well as Dr. Bruce Mccord. They are not in our case working area at the laboratory. They never work on cases. They are in our research unit. They are the lead authors. They are the ones that did the research. They are the ones that published it.
It is quite common for those researchers to give credit to individuals in the case working units who had the original idea.
MR. BUTING: Okay. So --
MARC LEBEAU: So that is why, I'm sure, Mr. Martz's name is on that article. He had nothing to do with the actual work done.
MR. BUTING: Oh, really?
MARC LEBEAU: Publication.
MR. BUTING: So these authors, you are telling us that they put Mr. Martz's name on here when he didn't do anything at all to do with this study or this article?
MARC LEBEAU: I believe that to be true.
MR. BUTING: How about Mr. Bruce Bedowle.
MARC LEBEAU: Dr. Bruce Bedowle, he is an expert statistician and at the time was, as I recall, the ranking manager within the research unit. Again, it's a respect thing where you include your supervisor in the list of authors.
MR. BUTING: Okay. Let's talk for a minute about how the protocol was developed for the O.J. Simpson case. All right?
MARC LEBEAU: Yes.
MR. BUTING: Just as in this case, a request was made or efforts were started to create a new type of test, mid-trial, right?
MARC LEBEAU: Well, again, sir, I didn't do the testing in the O.J. Simpson trial. I don't have all the intimate details as to what conversations occurred, when the request came in. I was a newly qualified examiner in the FBI Laboratory. I had been there approximately a year. So I don't have knowledge about the intimate details that you are asking there.
MR. BUTING: Well, I didn't realize I was asking intimate details, but let's rephrase it so I'm not, clearly. Was the protocol used in the O.J. Simpson case in existence in the FBI Lab before that trial began?
MARC LEBEAU: Not to my knowledge, it was not.
MR. BUTING: It was developed in a hurry while the trial was going -- ongoing, right?
MARC LEBEAU: I don't know when they started to develop the pro --
MR. BUTING: How long did it take to develop the --
MARC LEBEAU: -- protocol.
MR. BUTING: How long did it take to develop the protocol in the O.J. Simpson case?
MARC LEBEAU: I don't know.
MR. BUTING: Okay. Well, Exhibit 437, Determining EDTA in Blood, another scholarly article you refer to, right?
MARC LEBEAU: Yes, it is.
MR. BUTING: Respected in the field?
MARC LEBEAU: Yes, it is.
MR. BUTING: By two authors, at that time associated with Cornell University, right?
MARC LEBEAU: That's correct.
MR. BUTING: And they talked about, and part of this article talks about, the FBI Lab experience in developing the protocol for testing EDTA in bloodstains, that was used in the O.J. Simpson case, right?
MARC LEBEAU: I would have to review the article again to answer that question.
MR. BUTING: Are you serious, you don't know what this says? You don't know if this refers to the O.J. Simpson case?
MARC LEBEAU: Yes, I am serious. And I asked to review the portion that you are referring to.
MR. BUTING: Go right ahead. It's on the first page, Doctor.
MARC LEBEAU: What was your question, again?
MR. BUTING: Does that refresh your recollection?
MARC LEBEAU: Yes.
MR. BUTING: And do these authors say, quote, What was wrong with the laboratory testing? First, it was not clear whether the method had ever been used before. Most likely the method was developed quickly, under a great deal of time pressure. In retrospect, FBI chemists now believe that the EDTA detected may have been injection carryover in the LC/MS/MS instrumentation; do you recall reading that?
MARC LEBEAU: I do. I can't verify that that's it. You said quote, I can't verify that, but it sounds like the context is very much what I recall reading in that --
MR. BUTING: Okay.
MARC LEBEAU: -- paragraph.
MR. BUTING: Okay. So these authors pointed out that the FBI effort to develop a protocol for testing EDTA in bloodstains for the O.J. Simpson case was hurried?
MARC LEBEAU: No, sir, they said it appeared to have been hurried. Those authors were not present in our laboratory when that method was developed. I know that to be a fact.
MR. BUTING: Okay. So you would like to criticize these authors --
MARC LEBEAU: No.
MR. BUTING: -- this publication, now?
MARC LEBEAU: No, sir. The portion of that article that we relied upon was the scientific portion, not the narrative.
MR. BUTING: Well --
MARC LEBEAU: It's the science within the latter portion of the article refers to the use of an instrumental technique called capillary electrophoresis, mass spectrometry, mass spectrometry. Again it's a technique --
MR. BUTING: Sir --
MARC LEBEAU: -- that analyzed for EDTA.
MR. BUTING: May I ask a question? This is cross-examination, Judge.
MARC LEBEAU: I thought I was responding.
MR. BUTING: No, you're not.
THE COURT: Well, the answer goes a little bit beyond what the question was, so.
MR. BUTING: (By Attorney Buting)~ So --
THE COURT: Mr. Buting.
MR. BUTING: (By Attorney Buting)~ Okay. So, Exhibit 437 that you considered, that you offered here on direct as one of only two publications that you considered while developing this protocol, you say that you considered the portion of science in the latter part of it, but you ignored the portion in the narrative at the beginning that criticized the hurried nature of the development of a protocol; is that right?
MARC LEBEAU: Yes, that's correct. It was irrelevant in my opinion.
MR. BUTING: And you know why -- Well, let me ask it this way. It was irrelevant to you because, in this case, you were under a time crunch, weren't you?
MARC LEBEAU: Yes, I was.
MR. BUTING: Let's talk about that. Oh, and by the way, just to make it absolutely clear, these two publications that you referred to, Exhibit 436 and 437, were both published in 1997, right?
MARC LEBEAU: Yes, they were.
MR. BUTING: And both of them discuss the use of an EDTA test in the O.J. Simpson case, right?
MARC LEBEAU: Yes, they do.
MR. BUTING: And they don't discuss the use of an EDTA test in any other case, right?
MARC LEBEAU: No, they don't.
MR. BUTING: Because, as a matter of fact, no one has ever presented to any jury, anywhere, not just you, no one has ever presented a test for EDTA in bloodstains in a criminal trial before, other than the O.J. Simpson case?
MARC LEBEAU: I don't know that that's true.
MR. BUTING: Can you tell me another case in this country where an expert has gotten up in court and expressed an opinion that they are able to determine the presence or lack of EDTA, in a bloodstain, in a criminal jury trial?
MARC LEBEAU: No, I can't, but I don't know that it's true that it hasn't happened. I haven't done a search of the legal system to make that determination.
MR. BUTING: Oh, really?
MARC LEBEAU: Really.
MR. BUTING: So when you were asked to develop a protocol in this case, are you telling us, then, that you didn't search the public domain to see if maybe someone else had already invented the wheel?
MARC LEBEAU: I searched the scientific literature, as I indicated earlier, to see if there were published methods in peer review journals that are scientifically sound, in order to base my method upon. I didn't search the so-called public domain for such a method.
MR. BUTING: Okay. But in any event, you found no other reference in any other scientific journal across whatever disciplines there may be, you found no other reference to any other case or instance where a jury had been presented an expert opinion by somebody who says that they can determine whether or not EDTA exists in a bloodstain, correct?
MARC LEBEAU: Again, I did not search, like, legal proceedings.
MR. BUTING: Perhaps my question was too long. Let's break it down. You searched the entire scientific domain of research articles, right?
MARC LEBEAU: Yes, I did.
MR. BUTING: And in that entire search, I'm talking not just chemistry, but any kind of forensic science journals, right? You looked at those?
MARC LEBEAU: Yes, I did.
MR. BUTING: Okay. Any kind of physics journals, or whatever?
MARC LEBEAU: I didn't look at physics journals.
MR. BUTING: Whatever scientific domain you looked at, you found no other case where anyone had done what you are doing here today and come into court and presented an opinion about whether you can determine EDTA in a bloodstain other than the O. J. Simpson case; correct?
MARC LEBEAU: That's correct.
MR. BUTING: All right. Now, you were first contacted by someone on the prosecution team in this case in December, late December, of 2006, correct?
MARC LEBEAU: That's correct.
MR. BUTING: Let me go back. I'm sorry, I need to clear up one thing in this Exhibit 437 to 436, the FBI -- I will bring it back to you. Because we talked about carryover, right?
MARC LEBEAU: Yes, we did.
MR. BUTING: And the authors of that particular study apparently believe that carryover explained why they were -- why they found any kind of EDTA in Mr. O.J. Simpson's sock, right?
MARC LEBEAU: Again, I don't recall that specific detail being in this paper. I think, yes, they talked about carryover as being a problem in the O.J. Simpson case. I don't know if that was with a sock, or if it was the bloodstain itself, or a swab, or --
MR. BUTING: All right.
MARC LEBEAU: -- or what the evidentiary --
MR. BUTING: That's fair.
MARC LEBEAU: -- material was.
MR. BUTING: That's fair. I don't expect you to remember the particular evidentiary item. But you understand, though, that the conclusion was that carryover was the result of the EDTA reading. EDTA positive came from carryover, right?
MARC LEBEAU: There was a small signal for EDTA, as I recall, that was attributed to a previous injection of EDTA; again, carrying over into a future injection.
MR. BUTING: All right. So, then, if carryover explained that small signal of EDTA in whatever piece of evidence that was in Mr. Simpson's case, then, in fact, there may not have been any EDTA in that piece of evidence, right?
MARC LEBEAU: That's correct, yes.
MR. BUTING: And, then, if there was not EDTA in that piece of evidence, when the FBI concluded that there was, then the FBI lab was wrong in that case, right?
MARC LEBEAU: I don't know that the FBI Laboratory concluded that there was EDTA in that case. Again, I never read the report that was issued in the O.J. Simpson case. I didn't do the work myself. I don't know what the actual report was. And I don't know that they claimed there was a significant amount of EDTA.
MR. BUTING: All right. Well, let me ask it this way. Either the protocol that was used in that case was faulty, or the work performed was faulty, in order for there to be this report of a finding of EDTA on the evidence sample, right?
MARC LEBEAU: No, I disagree.
MR. BUTING: Well, which is it?
MARC LEBEAU: Well, if I can elaborate?
MR. BUTING: If you would like to, go right ahead.
MARC LEBEAU: Okay. What I believe is that the method was not well validated, quite frankly.
MR. BUTING: All right.
MARC LEBEAU: That's my understanding.
MR. BUTING: Okay. I will accept that.
THE COURT: Mr. Buting, I think I'm going to stop you there.
MR. BUTING: Okay. I see it's 2:30.
THE COURT: It is 2:30. So members of the jury we'll take our break at this time. I will remind you again, as usual, not to discuss the case during the break.
(Jury not present.)
THE COURT: You may be seated. Counsel, I will ask you to report back at quarter to three.
MR. BUTING: Okay.
(Recess taken.)
THE COURT: Mr. Buting, you may resume.
MR. BUTING: Thank you, your Honor.
CROSS-EXAMINATION, CONTD. BY ATTORNEY BUTING:
MR. BUTING: Okay. Now, sir you were first contacted by somebody from the prosecution team in late December of 2006, right?
MARC LEBEAU: If I could correct some testimony I made earlier; I realized I made an error. And then I can answer your question; is that all right?
MR. BUTING: Well, we can wait for redirect, but -- what -- Is it on one of the articles that you were referring to?
MARC LEBEAU: It was in response to one of your questions.
MR. BUTING: And what was it?
MARC LEBEAU: You asked me earlier, as I recall, if both these articles referred to the testing in the O.J. Simpson case. And during the break I reviewed the article from the Journal of Analytical Chem -- Toxicology and realized that I had mistakenly agreed with your statement. This article does not refer to the O.J. Simpson case. So I wanted to set that -- the record straight.
MR. BUTING: Oh. Okay. Well, let's -- let's just, for a couple minutes, follow up on that. This article is written, though, by four FBI employees, right?
MARC LEBEAU: Yes, it is.
MR. BUTING: Including Mr. Martz, right?
MARC LEBEAU: Yes. I'm not changing my testimony on that, sir.
MR. BUTING: Okay. Who testified in the O.J. Simpson case, right?
MARC LEBEAU: Mr. Martz.
MR. BUTING: And the article discusses the test on a sock; is that right?
MARC LEBEAU: You will have to show me that, sir, I couldn't find it in that article.
MR. BUTING: Let me see if I can find it in mine. I'm going to have Mr. Strang take a moment and look at it and then we can move on and not bore the jury, okay?
MARC LEBEAU: Yes, sir.
MR. BUTING: All right. He's quicker than I am. If you would take a minute and look at page 526, begin with the circling of the word, but that will help refresh your recollection.
MARC LEBEAU: Okay. The word "a sock" is circled, but there is no reference to the O.J. Simpson case. And as I -- I said, I agreed with your statement that it referred to evidence in the O.J. Simpson case and I need to withdraw that agreement because it -- to set the record straight.
MR. BUTING: Well, do you know of any other case in the mid-nineties when the FBI testified about EDTA on some sock? Yes or no? Do you know of any other?
MARC LEBEAU: No.
MR. BUTING: No, right?
MARC LEBEAU: No.
MR. BUTING: Okay. And maybe just so the jury is a little bit -- can understand your concerns about your testimony being accurate, there's something called a court testimony monitoring practice that the FBI is engaged in, right?
MARC LEBEAU: That's correct.
MR. BUTING: And the FBI, at least for the last number of years, has a practice of following up what their agents or lab people testify when they come to court, right?
MARC LEBEAU: That's correct.
MR. BUTING: And what you say here today, to this jury, could be followed up and reviewed by your supervisor?
MARC LEBEAU: That's right. Our testimonies are reviewed as part of our accreditating body's requirement.
MR. BUTING: And so you want to be absolutely sure that you don't say something that may be construed negative about the bureau, by your supervisors, unless it's true, right?
MARC LEBEAU: Sir, I just want to make sure I'm telling the truth if I'm under oath.
MR. BUTING: All right. If I can return, my question was, that you were first contacted by somebody in the prosecution team in late, very late December of 2006, right?
MARC LEBEAU: Yes, sir.
MR. BUTING: Approximately two months ago, correct?
MARC LEBEAU: Approximately two and a half months ago.
MR. BUTING: All right. And that was the first you had ever heard about this case, or was it?
MARC LEBEAU: Yes, it was the first I had heard of this case.
MR. BUTING: And as you thought about, well, geez, what can I do here, to do this test, you thought maybe an LC/MS/MS instrument might be an appropriate instrument to try and run a test for this particular chemical; is that fair?
MARC LEBEAU: Not in December of 2006.
MR. BUTING: All right. Let me move forward, just make it a little broader, then. As you later committed to do a protocol or test in this case, you thought about that particular instrument, right?
MARC LEBEAU: Yes.
MR. BUTING: And that instrument, as you said, has been used for decades, right?
MARC LEBEAU: Yes.
MR. BUTING: It has commercial applications?
MARC LEBEAU: Yes, it does.
MR. BUTING: So, for instance, the petroleum industry may use it to determine the, you know, chemical compositions of products that they are putting out?
MARC LEBEAU: Perhaps.
MR. BUTING: Pharmaceuticals I think you mentioned. One of the things that they have to do is make sure that, according to FDA regulations, that the drugs that they are marketing contain the chemical makeup that they represent, right?
MARC LEBEAU: The pharmaceutical industry does use LC/MS and LC/MS/MS techniques.
MR. BUTING: Sure. And they use it for all kinds of reasons including testing how long their drugs may last, right?
MARC LEBEAU: Generally, no, they tend to use the LC/MS and LC/MS/MS for metabolite studies and looking for what the body converts these drugs into to monitor.
MR. BUTING: I see. Okay.
MARC LEBEAU: Studies that are done.
MR. BUTING: So they are looking -- They use the instrument to see if -- how the drug breaks down into some other metabolite, you say, right?
MARC LEBEAU: That's exactly right.
MR. BUTING: And they want to be sure that there's not side affects, that this drug breaks down into something that might be toxic, for instance, right?
MARC LEBEAU: That be might one -- one thing that they are looking for, yes.
MR. BUTING: And they are looking to see that the drugs don't break down too quickly, or they are just trying to find out how quickly the drug will break down, for one thing, right?
MARC LEBEAU: That's part of it, yes.
MR. BUTING: Expiration dates, that's what the whole point of having those kinds of things on drug labels and what not, right?
MARC LEBEAU: Well, I don't know that they are studying it for expiration dates. Again, they are studying it for metabolites, what the body is converting it into. Shelf life, which I believe you were referring to there, is a completely separate issue.
MR. BUTING: Okay. But that's an issue as well, that they want to make sure that their drugs are, you know, working long enough to be effective; in other words, someone doesn't take a drug out of their medicine cabinet five years later and it's no longer -- it's way past the expiration date or something?
MARC LEBEAU: And for some drugs they may need to do that, to verify that it's -- it's stable.
MR. BUTING: Okay. So you settled on this particular instrument but, before you got there, the person you spoke to was Mr. Gahn, correct?
MARC LEBEAU: That is correct, yes.
MR. BUTING: And what you told him in December, when he asked if you could run a test to see if there was EDTA in a bloodstain, was that it would take you three to four months before you would be able to get him any results, right?
MARC LEBEAU: Yes, that's what I told him.
MR. BUTING: Okay. And that that was, in part, because you knew that you would -- it had been so long since the O.J. case, the last time your lab had done this kind of a test, that you would need to develop or retest some protocol, right?
MARC LEBEAU: That we would need to validate the protocol in order to use it.
MR. BUTING: Sure. And that you would have to, in order to do that, go through a number of tests and what not in order to satisfy the validation process that you thought was necessary, right?
MARC LEBEAU: That's exactly right, yes.
MR. BUTING: And so you told them about three to four months?
MARC LEBEAU: That's the standard estimate I give. When we -- we're asked if we can develop a new method, my standard response is three to four months and that's what I recall responding to Mr. Gahn's request.
MR. BUTING: Okay. So when you say you get these non-routine cases and you are asked to develop these protocols, typically it takes three to four months?
MARC LEBEAU: It depends, quite honestly.
MR. BUTING: But that's the standard answer you give?
MARC LEBEAU: It's the standard answer.
MR. BUTING: Okay. And he asked you -- he told you, well, that was not going to work with the trial date that was set in this case, right?
MARC LEBEAU: He relayed to me that there was an upcoming trial date and indicated that they may need the results faster in order for it to be used in this case.
MR. BUTING: Okay. And yet, in that discussion with Mr. Gahn, you still could not promise to do anything quicker than three to four months, right?
MARC LEBEAU: In my recollection, at the time was, I actually suggested that they try to find another laboratory to do the analysis. That was my initial response because we had the holidays coming up, this was right before Christmas. And most of my staff is gone for -- at the end of the year, we lose our leave if we don't take off and use it.
So, you know, realistically, looking at the scenario we were represented with, I thought three to four months was probably a fair estimate. And the other thing we always have to keep in mind, that we're the primary federal law enforcement investigative body. So if a bomb goes off, if there's a terrorist attack --
MR. BUTING: Sir --
MARC LEBEAU: There's --
MR. BUTING: Excuse me. We would like to get you back to Virginia some time soon so. The question didn't require that long an answer. If you would just try and focus on the questions and give us some answers.
MARC LEBEAU: I was trying to, sir, I'm sorry.
MR. BUTING: Okay. And if you need to you, I mean, you will have an opportunity with Mr. Gahn, you can elaborate your answers and explain them further. And if I cut you off and it's unfair, just tell me, okay.
MARC LEBEAU: Yes, sir, I will.
MR. BUTING: All right. Thank you. So, you gave Mr. Gahn the standard response. Then, in January, you were contacted again by someone else, about this case, to see if you could do something a little quicker, right?
MARC LEBEAU: I was, yes.
MR. BUTING: And that was the FBI office or -- Who was that, U.S. Attorney's Office, or what?
MARC LEBEAU: It was our local FBI Office.
MR. BUTING: In Milwaukee?
MARC LEBEAU: Green Bay.
MR. BUTING: Green Bay, okay. And after speaking with them and learning something about the case and the trial date that was starting February 5th, you said, oh, well, I think we can do it faster than that, right?
MARC LEBEAU: No, sir.
MR. BUTING: You didn't?
MARC LEBEAU: No.
MR. BUTING: Did you say you would try to do it faster; is that the difference?
MARC LEBEAU: I told the agent that called me from our field office in Green Bay, I explained to him that I had had numerous conversations with Mr. Gahn and I had agreed that we would accept the evidence and analyze it for this case, after we had developed a method and validated that method.
MR. BUTING: Okay. But you told Mr. Gahn, or you told this FBI agent in Green Bay, that you thought you would be able to do all of that while the trial was going on and you would be able to get results by the end of the trial, right?
MARC LEBEAU: No, sir. I told him that we would do our best to get the work completed in the time requirements that were needed.
MR. BUTING: Okay. And you knew that those time requirements were that it's, what, early March now, you knew that you were going to have to get something in probably by around the end of February, right?
MARC LEBEAU: I believe the deadline we were given was, essentially this week, to have the actual results in.
MR. BUTING: Okay. Actually, March 9th, I think, right?
MARC LEBEAU: That sounds familiar, yes.
MR. BUTING: Okay. So you beat the deadline, right?
MARC LEBEAU: We did, yes.
MR. BUTING: Because your actual report is dated February 26th?
MARC LEBEAU: That's correct.
MR. BUTING: Now, you testified about why the FBI would have any interest in this case in the first place, do you recall that, with Mr. Gahn?
MARC LEBEAU: Yes, I do.
MR. BUTING: You said that, oh, the FBI has this -- has a concern about public corruption, correct?
MARC LEBEAU: It's one of the types of investigations that we have a classification for within the FBI, yes.
MR. BUTING: Sure, you have agents that go around and do investigations when there is allegations of public corruption, right?
MARC LEBEAU: That's correct, yes.
MR. BUTING: It's not just your chemistry unit that gets involved, right?
MARC LEBEAU: Of course not. Of course not.
MR. BUTING: You tell me, now you knew this case, by the way, was charged against Mr. Avery in November of 2005, 16 months ago, approximately, okay. Are you aware of that?
MARC LEBEAU: That the charges were made then?
MR. BUTING: Yes.
MARC LEBEAU: I don't know when the charges were made, sir.
MR. BUTING: Well, you looked at these swabs that you were testing, right, and they had some dates on them?
MARC LEBEAU: Yes.
MR. BUTING: Some of those dates were November of 2005, right?
MARC LEBEAU: That's correct.
MR. BUTING: So you knew that Mr. Avery must have been charged by that time.
MARC LEBEAU: No, sir, I just knew that's when the date that indicated the specimens were collected. I don't have any knowledge of when charges were made.
MR. BUTING: Okay. In any event, can you tell me what investigation was started by the FBI to investigate allegations that Mr. Avery made, upon his arrest, publicly, that the police had planted his blood in Teresa Halbach's car?
MARC LEBEAU: I have no knowledge of an investigation.
MR. BUTING: In fact there was none, was there?
MARC LEBEAU: I have no knowledge of it --
MR. BUTING: Okay.
MARC LEBEAU: -- whether there was or was not.
MR. BUTING: Can you tell me when the U.S. attorney convened a grand jury investigation to investigate allegations of public corruption made by Mr. Avery, against police officers, in this case?
MARC LEBEAU: I have no knowledge of whether or not they did it.
MR. BUTING: Okay. And can you tell me when any members, any agents from the FBI spoke to Lieutenant Lenk, Lieutenant Colborn, or any other person involved in the investigation of this case?
MARC LEBEAU: Sir, I'm a scientist; I'm not a law enforcement officer, I have no knowledge of anything of that nature.
MR. BUTING: Now, you were trying to find out in your test simply whether or not there was a corrupt, dishonest, criminal cop who planted evidence to frame Mr. Avery is one scenario, right?
MR. BUTING: I can rephrase it, it's a little cumbersome.
THE COURT: Go ahead.
MR. BUTING: (By Attorney Buting)~ You testified, one of the FBI's concerns was, that if there was a corrupt cop on the street and doing something illegal, and certainly planting evidence to frame somebody would be illegal, right? Would you agree with me?
MARC LEBEAU: Yes, I would.
MR. BUTING: Okay. And that one of the functions of the FBI was to ferret out bad cops like that, right?
MARC LEBEAU: Generally, that's what I -- Yes --
MR. BUTING: Okay.
MARC LEBEAU: Generally --
MR. BUTING: Okay.
MARC LEBEAU: -- that's what I said, yes.
MR. BUTING: And so what the FBI was asked to do in this case, then, was to find out if there was evidence that would point towards someone planting the evidence, against Mr. Avery, as he has said, police officers, right; that was one scenario that you were looking into?
MARC LEBEAU: That's correct.
MR. BUTING: Or whether or not perhaps Mr. Avery was just full of hot hair and making this up, right?
MARC LEBEAU: No, sir, I wouldn't say that that was the other scenario. The other scenario was whether that blood came from active bleeding --
MR. BUTING: All right.
MARC LEBEAU: -- as opposed to from that tube of EDTA preserved blood.
MR. BUTING: All right. I didn't -- Don't let me put words in your mouth then, but those were the two scenarios. And as far as you were concerned, you're an objective chemist, you didn't care which way it came down; is that your testimony?
MARC LEBEAU: That's absolutely my testimony.
MR. BUTING: And that's the position of the FBI, your boss, I mean, your organization that you work for, they were taking an objective and independent view, in this case, and didn't care which way it came down, in that analysis; is that right?
MARC LEBEAU: Well, I can't speak for any of my bosses. I'm here testifying for myself. And that is my view of it, yes, I could care less as to what the results are, quite frankly.
MR. BUTING: I'm going to show you what's been marked as Exhibit 479 and see if you can identify that for us, please. I'm going to substitute a copy later, so it's really just the first few pages we're concerned about. The chain of custody isn't at issue here.
MARC LEBEAU: Okay. The first few pages are a copy of the internal communication that the FBI uses to essentially write memos between field offices and divisions within the FBI. And this is the specific request that was sent in to me for analysis in this particular case.
MR. BUTING: Okay. And did you read the sentence on top of page two that discusses the purpose of this request for your services?
MARC LEBEAU: The purpose of this request is to establish the presence of EDTA in the vial of blood, thereby eliminating the allegation that this vial was used to plant evidence.
MR. BUTING: Okay. Can you show me anywhere in there where that request says our purpose is also to find out if there might be any evidence that there's a corrupt cop in Manitowoc County.
MARC LEBEAU: No, I don't see anything of that nature.
MR. BUTING: Okay.
MARC LEBEAU: But I can elaborate if you like.
MR. BUTING: So, the purpose of your -- of the FBI's request of your laboratory, to get involved in this case, the state crime -- Let me step back for a second. The FBI generally is a law enforcement branch for federal crimes, correct?
MARC LEBEAU: That's correct.
MR. BUTING: You don't typically get involved in run of the mill state crimes, do you?
MARC LEBEAU: That's incorrect.
MR. BUTING: Well, unless someone brings you in from the state level, for some particular reason, it's not normally the kind of a case where you take jurisdiction, is it?
MARC LEBEAU: Forty percent of the cases that we work in my unit come from state and local investigations. So I would say it's a significant number.
MR. BUTING: Is homicide of a citizen in the State of Wisconsin a federal crime?
MARC LEBEAU: No, sir, it's not.
MR. BUTING: Okay. Is mutilation of a corpse in the State of Wisconsin a federal crime?
MARC LEBEAU: No.
MR. BUTING: Okay. So, the purpose of you getting your federal agency involved in this state crime was to eliminate the allegation that this vial was used to plant evidence; isn't that true?
MARC LEBEAU: No, sir. If I can elaborate, I will be happy to explain.
MR. BUTING: You can elaborate later, sir. Now, the protocol that you developed for this case, this test, all right, you began to develop around the beginning of February, February 1st, something like that?
MARC LEBEAU: I believe we began the actual method validation on -- at the very end of January, perhaps the very last day of January.
MR. BUTING: All right. So January 31st, let's say, okay. The protocol was completed on February 14th?
MARC LEBEAU: That's correct.
MR. BUTING: About two weeks, right?
MARC LEBEAU: Let me correct that, the protocol was issued --
MR. BUTING: I said completed. I will get to the differences in a second.
MARC LEBEAU: The protocol was completed and issued on February 15th.
MR. BUTING: Okay. Was issued on the 15th, but it was actually completed on the 14th, other than a review process still, right?
MARC LEBEAU: Well, it's not technically complete until it passes the review process.
MR. BUTING: Okay. And this so-called validation studies, or whatever you told us was ongoing, that was done by February 14, right?
MARC LEBEAU: Can I refer to my notes?
MR. BUTING: Sure.
MARC LEBEAU: I believe the last validation test was performed on February 13th.
MR. BUTING: Okay. Thank you. So February 13th. So, really, 14 days, then, if you started on the 31st of January, right.
MARC LEBEAU: Yes, 14 days.
MR. BUTING: Okay. But as you said, it's not complete unless it goes through an approval process, right?
MARC LEBEAU: That's correct.
MR. BUTING: And the approval process, in your instance, I think you said -- I'm not sure if you did say, actually. But I think you did, yes, you said you had another scientist look at it?
MARC LEBEAU: Which part are you referring to, sir?
MR. BUTING: Well, between February 13th and February 15th, did you have somebody else look at this protocol before it was issued?
MARC LEBEAU: Yes, I did.
MR. BUTING: A who was that?
MARC LEBEAU: I had -- Well, if I can clarify things, I had another scientist review all of the validation data --
MR. BUTING: Okay.
MARC LEBEAU: -- before the protocol was issued.
MR. BUTING: Who was that?
MARC LEBEAU: Madeline Montgomery.
MR. BUTING: And is Madeline Montgomery in some independent lab?
MARC LEBEAU: No, she's within the FBI Laboratory, Chemistry Unit.
MR. BUTING: And she's in the very same Chemistry Unit as yourself?
MARC LEBEAU: Yes, she is.
MR. BUTING: Okay. Anybody else?
MARC LEBEAU: Reviewing the validation data, only the chemist that did the actual work.
MR. BUTING: And that wouldn't count for your approval purposes, you have to have somebody else take a look at this, right?
MARC LEBEAU: No, sir, I mean, the first person that does the work has to, of course, review it and verify all of the data is correct. So that's your first level review. Then you follow that up with a second level review by an independent person and who wasn't involved in the study at all. And I always assign that to a supervisory chemist within the unit, someone with more experience, etcetera.
MR. BUTING: Okay. Someone in your unit, though, right?
MARC LEBEAU: It has to be done in the same unit in which they are qualified to do the work. We couldn't get it to a DNA examiner --
MR. BUTING: Sure.
MARC LEBEAU: -- they are not a chemist.
MR. BUTING: Of course. Anybody else look at this validation data, besides yourself and Ms Montgomery and the technician who ran it?
MARC LEBEAU: I don't believe so.
MR. BUTING: Okay. Well, I believe we learned a little bit earlier, before the break, that the FBI has something called a forensics science research division, don't they?
MARC LEBEAU: Yes, they do, they have a research unit.
MR. BUTING: And, in fact, that's where you said Mr. Miller and Mr. McCord were working. It's called the Forensic Science Research and Training Center, right?
MARC LEBEAU: That's correct.
MR. BUTING: And these people don't work on cases?
MARC LEBEAU: No, they do not.
MR. BUTING: They just do research, right?
MARC LEBEAU: They do long term research, primarily.
MR. BUTING: And that includes developing protocols for new types of tests, right.
MARC LEBEAU: Not in recent years, no. Most of those duties fall back to the case working units. As I indicated --
MR. BUTING: Oh, really? You don't -- These are scientists who are doing research, but you don't have them ever look at your new protocols; you let the caseworkers do that?
MARC LEBEAU: Yes, I mean, I think in this instance, the people that work under me are more qualified to look at this particular type of an analysis. The research unit these days are heavily focused in dealing with homeland security issues. They would not have the time to review this type of material.
MR. BUTING: Well, you didn't think you had the time either, initially, right?
MARC LEBEAU: That's correct. But I can make myself make the time; I can't make them make the time.
MR. BUTING: Just so we're clear, then, you did not have any scientist researcher from the FBI Forensic Science Research and Training Center review your validation data or the protocol that you used in this case, before using it in Mr. Avery's case, right?
MARC LEBEAU: That's correct.
MR. BUTING: Okay. This Madeline Montgomery, that's in your unit?
MARC LEBEAU: Yes, she is.
MR. BUTING: She's the one you said you had independently review the validation data?
MARC LEBEAU: Yes.
MR. BUTING: Does she report to you?
MARC LEBEAU: Yes, she does.
MR. BUTING: Do you review her work?
MARC LEBEAU: Yes, I do.
MR. BUTING: Do you decide her raises and promotions?
MARC LEBEAU: I do, yes.
MR. BUTING: Okay. And that's your idea of an independent scientist?
MARC LEBEAU: Absolutely. We train our scientists to be unbiased.
MR. BUTING: Actually, while I'm on that, you talked about how peer review is done for articles that get published in scientific journals, right?
MARC LEBEAU: Yes, that's correct.
MR. BUTING: And that before anything gets put into some sort of publication that has any reputation worthwhile, the editor takes it from the author, the manuscript from the author, and finds some other scientist to review it?
MARC LEBEAU: Yes, that's correct. Qualified scientist, based on the editor's opinion.
MR. BUTING: Right. And you say that that's done blindly, so that, you know, there is no bias involved by the reviewers, right?
MARC LEBEAU: That's exactly right.
MR. BUTING: And that's important in order to be fair and make sure that you can weed out any kind of bias that one individual may have, either for or against another.
MARC LEBEAU: Yes, I believe that's true.
MR. BUTING: But you didn't have Ms Montgomery or Mr. -- or the technician who did this case, run through these tests in a blind fashion, did you?
MARC LEBEAU: Not blind specifically for the evidence in the case, but we did do some blind testing before we issued the protocol.
MR. BUTING: And the protocol, just so we're clear, it wasn't -- didn't grow out of any kind of ongoing research project that you were doing in your lab, right?
MARC LEBEAU: That's correct, it was based on the publication, as I indicated earlier.
MR. BUTING: No, no, no. What I'm saying is, it didn't grow out of, it didn't develop because of some ongoing project separate from Mr. Avery's case?
MARC LEBEAU: No, no, no. It was -- The protocol was validated and reviewed and put into use specifically for this case.
MR. BUTING: And only this case, so far, right?
MARC LEBEAU: So far, yes.
MR. BUTING: Okay. And as you say, the data stuff was done on the 13th of February and it was issued on the 15th, right?
MARC LEBEAU: Which --
MR. BUTING: The protocol.
MARC LEBEAU: -- data stuff? I'm sorry?
MR. BUTING: You said that all of the data acquisition, however that was being done by these validation -- what you call validation tests, was completed on the 13th, right?
MARC LEBEAU: The validation work was completed -- the last day of the validation was the 13th of February.
MR. BUTING: And it was formally issued and adopted by your laboratory on the 15th of February, right?
MARC LEBEAU: Yes, it was.
MR. BUTING: Of this year, 2007?
MARC LEBEAU: Yes, that's correct.
MR. BUTING: Okay. And in order to get to that point where it's actually issued, that -- that constitutes an approval process, right?
MARC LEBEAU: Absolutely, it does.
MR. BUTING: And that approval process, by your own protocols with the FBI, requires approval by the unit chief, right?
MARC LEBEAU: That's correct.
MR. BUTING: As well as someone else, right?
MARC LEBEAU: As well as the unit chief over our Quality Assurance Unit, which is an independent unit that oversees all quality within the laboratory.
MR. BUTING: Now, in this case, you are the unit chief?
MARC LEBEAU: I'm the unit chief of the Chemistry Unit, but --
MR. BUTING: Right.
MARC LEBEAU: -- not the Quality Assurance Unit.
MR. BUTING: So in the protocol, the chain of how these things are supposed to be approved -- By the way, this whole approval process, is part of quality assurance, right?
MARC LEBEAU: That's exactly right.
MR. BUTING: And the idea is, we want to get some other eyes looking at this to make sure that it's -- that it's, you know, the protocols have been followed and that this is valid science, right?
MARC LEBEAU: That's right.
MR. BUTING: Okay.
MARC LEBEAU: And other scientists review the procedure before it's issued.
MR. BUTING: Right. Now, in your case, though, one of those steps was really sort of skipped because you were involved doing the development of the protocol, right?
MARC LEBEAU: No, sir, not at all.
MR. BUTING: Oh, so you just reviewed yourself?
MARC LEBEAU: No.
MR. BUTING: You graded yourself?
MARC LEBEAU: No.
MR. BUTING: Did you find another unit chief besides the quality assurance person?
MARC LEBEAU: No, as I indicated, the review is done by another scientist. And the scientist that did the review for the protocol, that went through the stepwise procedure, to verify, again, that everything was written as was required by our quality assurance program, that the validation study had been completed, was Madeline Montgomery.
She did an independent review of this procedure and then -- I'm not approving it in the sense of I'm saying it's okay to be used, my approval is simply that all the steps for the quality assurance program, within my unit, have been met.
MR. BUTING: So --
MARC LEBEAU: That's why --
MR. BUTING: Sir.
MARC LEBEAU: -- my signature is on the approval line.
MR. BUTING: The answer to my question then is, yes, you skipped a step in the usual approval process because you were the unit chief who would otherwise have to independently approve a new protocol?
MARC LEBEAU: No, you're incorrect. No steps were skipped, this is the same approach we take to every protocol that's issued within the FBI Laboratory. I have to be the final signature for approval of any protocol that's issued out of my unit.
MR. BUTING: All right. And so you graded yourself and gave yourself and A+?
MARC LEBEAU: I did not --
THE COURT: Sustained.
MR. BUTING: (By Attorney Buting)~ As part of the discovery request, you know, attorneys file requests and ask your -- people such as yourself to produce documents, right?
MARC LEBEAU: Yes.
MR. BUTING: You are familiar with that process?
MARC LEBEAU: I am, yes.
MR. BUTING: You are aware that I asked you, through Mr. Gahn, to disclose the FBI protocol that was used in 1997 in the O.J. Simpson case, right?
MARC LEBEAU: I am aware that you asked for that, yes.
MR. BUTING: Okay. And yet your lab refused to give that to me; isn't that right?
MARC LEBEAU: The attorney that represents our laboratory did indicate that we were not to turn over any other protocol except the one that was used in this particular case, as her opinion was, it was the only one relevant --
MR. BUTING: In her opinion?
MARC LEBEAU: -- for this report.
MR. BUTING: So in her opinion, your lab didn't want this jury to see the only other protocol, the only other time you have ever tested for EDTA in a bloodstain in any case in this country?
THE COURT: Sustained.
MR. BUTING: (By Attorney Buting)~ Well, you knew that if you turned over that protocol to the defense, I would use it to cross-examine you, right?
MARC LEBEAU: I don't know that.
MR. BUTING: Well, wouldn't take much of a guess to figure it out, that if I had your prior protocol, I could point out to this jury the differences that you made, or lack of differences, between that protocol and this one, right?
MR. BUTING: Couldn't be more relevant.
THE COURT: Well, I'm going to sustain the objection, though, on that basis, if there was -- the witness testified it wasn't his decision, but the attorney's decision, not to turn it over. If there's a request for an order to turn it over, that should be directed to the Court, so I don't think this witness is in a position to answer. That's why I'm sustaining the objection.
MR. BUTING: (By Attorney Buting)~ All right. At any rate, because we don't have, in front of us today -- I assume you didn't bring it, right, or did you?
MARC LEBEAU: No, I did not.
MR. BUTING: So you didn't bring it, if the Court was -- if I asked the Court to order you to turn it over today, you don't have it to do that, do you?
MARC LEBEAU: No, I do not.
MR. BUTING: Okay. So, because you don't have it, we don't have anything to compare this protocol to the one you used in the OJ case?
MARC LEBEAU: No, you don't.
MR. BUTING: We talked briefly about blind tests, let's explain a little bit to the jury. There is -- There is a concept or a technique that's used in science to -- it's called blind testing; are you familiar with that?
MARC LEBEAU: Yes, I am.
MR. BUTING: And the idea behind blind testing is that you -- the examiner, or the person who is testing the results or the samples doesn't know what they are or where they came from, right?
MARC LEBEAU: Sometimes that's considered blind testing, yes. There are other forms of blind testing.
MR. BUTING: Okay. And one of the reasons that you do -- or that the scientists do blind testing is to remove the possibility of some sort of bias in the examiner's testing process, right?
MARC LEBEAU: Yes, that's exactly right.
MR. BUTING: And so, for instance, when they are testing -- or when you are testing drugs, they will sometimes have a placebo with one person and the effective drug with another. And the person who is testing it doesn't know one way or the other?
MARC LEBEAU: That's right.
MR. BUTING: Okay. In this case, maybe in all FBI cases, I don't know, but in this case, the person who did the tests didn't do a blind test, did he? Let me be more specific, because I see you are already trying to pick that question apart. In this case, the person who tested the swabs and the blood that was submitted to you, from the Avery case, did not do a blind test, did he?
MARC LEBEAU: No, he knew that this was evidence related to a case that we were working.
MR. BUTING: And he knew more than just that it was evidence, he knew exactly what evidence was which, correct?
MARC LEBEAU: Yes, I -- Yes, he did. I knew which specimen came from which area.
MR. BUTING: Okay. And the designations that we saw some of them up there Q-46, Q-48, K-3, those designations, wasn't some blind code that he didn't know what they meant, right?
MARC LEBEAU: No, those were the designations that we gave to those individual items that we would refer to within our report.
MR. BUTING: And when you say we, let's be very clear to the jury you are talking about yourself and the technician who did the tests?
MARC LEBEAU: Well, no, I'm sorry, in that instance, when I say we, I mean the entire FBI laboratory, that's the system that we use. Those numbers, letter number designation Q-43, for example, it's actually assigned by our evidence control unit. They are the very first ones that receive the evidence and do that initial assignment of specimen designations to -- to evidence.
MR. BUTING: Okay. But -- Well, let's name this mystery person who was doing the testing in your case; it's a guy named Jason Brewer, right?
MARC LEBEAU: That's correct.
MR. BUTING: B-r-e-w-e-r.
MARC LEBEAU: That's correct.
MR. BUTING: And he is more than just a technician, would you agree?
MARC LEBEAU: Well, I would -- He's a Ph.D. He is recently promoted to be an examiner --
MR. BUTING: Okay.
MARC LEBEAU: -- in this area.
MR. BUTING: And he's the one who actually did all the tests that you then later reviewed, right?
MARC LEBEAU: Well, not exactly. He performed most of the analyses, that part is true. But I was reviewing the data all along. And I was with him a great majority of the time that decisions were being made about the order of things and the amount of sample to use, etcetera.
MR. BUTING: But you are a busy man, you are a manager, right?
MARC LEBEAU: I'm a manager, yes.
MR. BUTING: You don't have time to sit around in the lab while these machines are clicking and whirring, right?
MARC LEBEAU: Well, I did make time for this case, I was in the lab a substantial amount of time, actually.
MR. BUTING: Okay. But is it fair to say that Mr. Brewer is the guy who really, from one test to the other, did all of the LS/MS/MS (sic), and the extractions, and the whole protocol; he was involved in every step of your protocol?
MARC LEBEAU: There's multiple answers to your question; could you break it out?
MR. BUTING: Yeah, that was a bad question. Is it fair to say that Mr. Brewer is the one who did the actual instrument analyses in this case?
MARC LEBEAU: Yes, that is fair to say.
MR. BUTING: Okay. And Mr. Brewer, you have designations of chemist at sort of the lower level?
MARC LEBEAU: That's the equivalent of a technician, essentially.
MR. BUTING: Okay. And then you get promoted to forensic chemist examiner, right?
MARC LEBEAU: That's exactly right.
MR. BUTING: And that allows you to do other things, including expert witness testimony regarding the results of chemical analysis, right?
MARC LEBEAU: That is true, yes.
MR. BUTING: And you have seen Mr. Brewer's resumé, have you not?
MARC LEBEAU: Yes, I did. I turned it over to you.
MR. BUTING: Okay.
(Exhibit 480 marked for identification.)
MR. BUTING: (By Attorney Buting)~ I'm showing you what's marked now as Exhibit 480; this is Jason Brewer's curriculum vitae, right?
MARC LEBEAU: Yes, it is.
MR. BUTING: And would you agree with me that it says in his curriculum vitae that he is qualified, by your laboratory, to come to court and to explain to juries what it is he does in cases?
MARC LEBEAU: No, sir, it does not say that on his curriculum vitae that he is qualified to do so --
MR. BUTING: Oh.
MARC LEBEAU: -- and he is not qualified to do so.
MR. BUTING: Doesn't this say, under his job description here, interpret data, prepare written reports and provide expert witness testimony regarding the results of chemical analysis?
MARC LEBEAU: That's correct, that's what it says. But he is -- he was a chemist and qualified as a chemist, as a technician. And, then, just last September, he was promoted to the level of an examiner, but he is still in a training mode as an examiner. He still works cases as a chemist. Until he is qualified, completes his training, passes all the tests, he is not allowed to testify until that is completed and he is certified. He is not a certified examiner at this time, sir.
MR. BUTING: Well, he is a forensic chemist examiner?
MARC LEBEAU: That's his position, his official position title within the U.S. government.
MR. BUTING: And so, despite the fact that the curriculum vitae that he has, that you turned over to us, that says that he can do that, it's your testimony today that he is not qualified to come here like you are?
MARC LEBEAU: That's correct.
MR. BUTING: Okay. So that's why we're not hearing from him?
MARC LEBEAU: That's correct. I supervised his work and I'm the one that compiled the results and formed the opinion and issued the report; that's why I'm here today.
MR. BUTING: All right. You say that Mr. Brewer is still in training for courtroom testimony, right?
MARC LEBEAU: No, sir, I didn't say that.
MR. BUTING: Well, you said he is not qualified to come here and testify to this jury about what he did?
MARC LEBEAU: That's what I said, yes.
MR. BUTING: Okay. What sort of courses or training does he need to do to learn how to tell the truth to a jury.
THE COURT: Sustained.
MR. BUTING: (By Attorney Buting)~ Let me just turn for a moment to this particular instrument that you use, GS -- or I'm sorry -- LC/MS/MS. All right.
THE COURT: Mr. Buting, just before you get into that new --
MR. BUTING: You want to stretch?
THE COURT: -- topic, lets stand up and stretch.
MR. BUTING: Okay.
THE COURT: All right. Mr. Buting, you may resume.
MR. BUTING: Thank you.
MR. BUTING: (By Attorney Buting)~ Let's talk about this -- this instrument, this LS/MS/MS (sic) instrument. It's three instruments, you said, together, right?
MARC LEBEAU: Yes, sir, it's the LC/MS/MS.
MR. BUTING: I'm sorry, I'm not a chemist. I keep botching that designation, I'm sorry. I want to explain, make sure the jury understands, because sometimes lay people, like myself, are in awe of science and machines and we sometimes think that they do more than they can, okay?
MARC LEBEAU: Yes.
MR. BUTING: So this isn't something that you just push a few buttons, run a sample through, some lights flash and buzzers go off, and then spits out a result at the end, paper result says this is EDTA, or this is not EDTA, right?
MARC LEBEAU: That's correct.
MR. BUTING: It's nowhere near that simple, right?
MARC LEBEAU: No, it's not that simple.
MR. BUTING: And in fact, what the whole premise of the machine is is that it's supposed to somehow determine the characteristic of an ion and whether or not it's consistent with one chemical or another?
MARC LEBEAU: That's not technically correct, no.
MR. BUTING: All right. A series of ions, is that the correction you wanted?
MARC LEBEAU: It's fragments that are ions --
MR. BUTING: Okay.
MARC LEBEAU: -- that originate from the chemical itself.
MR. BUTING: Okay. If you turn to -- I have handed you what's been marked as exhibit -- I'm sorry, what is the exhibit number?
MARC LEBEAU: 441.
MR. BUTING: 441, and it's entitled guidelines for comparison of mass spectra, right?
MARC LEBEAU: That's correct.
MR. BUTING: And this is a document that's issued by your unit, the FBI Laboratory, Chemistry Unit, right?
MARC LEBEAU: That is correct.
MR. BUTING: June 21st of '06 is this one, right?
MARC LEBEAU: Yes, it is.
MR. BUTING: And it's signed by yourself at the end, as well as the quality assurance people?
MARC LEBEAU: Yes, it's signed by myself and two other individuals.
MR. BUTING: Okay. And if you would turn to page three, there's a section that has a heading that says determination of diagnostic ions in a mass spectrum, okay?
MARC LEBEAU: Yes, sir.
MR. BUTING: Your guidelines state, quote, the definition of what makes any given ion "characteristic" of a particular chemical structure is somewhat nebulous and there does not appear to be any universally accepted standard in the field, correct?
MARC LEBEAU: Yes, that's what it says.
MR. BUTING: Okay. And it says that's why you have got to have good and consistent judgment and you have to employ judgment -- subjective judgment as an examiner, when you look at the results of these tests, right?
MARC LEBEAU: It does say you should apply good and consistent judgment, it doesn't say subjective, as you indicated there.
MR. BUTING: Is there any such thing as objective judgment?
MARC LEBEAU: I don't know.
MR. BUTING: I will take that as a no.
MARC LEBEAU: I don't know.
MR. BUTING: You are going to fight me on that one too?
MARC LEBEAU: No.
MR. BUTING: Okay. And, then, on the last page, page 10 of 15 actually, limitation section?
MARC LEBEAU: I'm sorry, I do want to -- I want to rethink that answer. I do believe there is such a thing as objective judgment.
MR. BUTING: All right. Go ahead turn to page 10 of 15. You got it?
MARC LEBEAU: Yes, sir.
MR. BUTING: Okay. And this is a heading that's called limitation and, again, these are the guidelines on how to interpret the results of these tests, right? That's what this document is?
MARC LEBEAU: Of the mass spec --
MR. BUTING: Mass spectra.
MARC LEBEAU: -- type test?
MR. BUTING: Yes.
MARC LEBEAU: Yes, this -- this is a narrative talking about the general limitations in evaluating mass spectral data.
MR. BUTING: And this particular section is headed limitations. It's telling you, you know, hold on, there are some limits to this we have got to consider, right?
MARC LEBEAU: That is exactly right.
MR. BUTING: Okay. And doesn't it say, quote, the mere fact that an unknown mass spectrum matches well to the spectrum of a known standard will rarely, by itself, be sufficient grounds to claim the presence of that compound in the question sample, correct?
MARC LEBEAU: That's correct.
MR. BUTING: Doesn't it also say that, quote, similarly, the fact that an unknown mass spectrum fails to match that of a known standard generally will not, by itself, constitute grounds for concluding that the compound is not present in the questioned spectrum, correct?
MARC LEBEAU: That's correct, too.
MR. BUTING: All right. And so what you have to do with these mass spectrum tests is look at a big picture, consider all the data, as well as what comes out of this machine or instrument, correct?
MARC LEBEAU: Yes, you have to look at all the data that's generated and put all the pieces of the puzzle together to reach your conclusion.
MR. BUTING: All right. Your protocol, then, that was developed on February -- or issued on February 15th of 2007, for this case only, it's important that whoever do the test, follow the protocol as written, correct?
MARC LEBEAU: Yes.
MR. BUTING: And that you are not supposed to just adjust one procedure differently than what's in the protocol?
MARC LEBEAU: You are allowed to do that as long as you document the fact that you did make a deviation to the procedure.
MR. BUTING: Okay. And when you do that, you are actually, by your lab's protocol, you are supposed to fill out some kind of a form saying I want to deviate from the protocol?
MARC LEBEAU: Well, it depends, there's two types of deviations. We have what are called major deviations, which are quality affecting, meaning by doing this deviation you potentially are going to affect the results of the test and you have to get a higher level of approval. It has to go up to the quality assurance unit, if you are going to do a major deviation. If you're going to do a minor deviation, on the other hand, it simply just requires a notation in the notes with approval by the examiner and myself, and in this case, approval by me.
MR. BUTING: All right. Turn to 434 exhibit, please, page 3 of 9, No. 9 procedure, got that?
MARC LEBEAU: Yes, sir.
MR. BUTING: Sets forth five steps to follow, right?
MARC LEBEAU: Yes, sir.
MR. BUTING: And the last step after you do this filtrate and -- I'm not going to bore everybody with the scientific jargon -- but is that you are supposed to transfer this -- this solution that you come up with, first, and inject it into a system that's a negative ion mode, correct?
MARC LEBEAU: That's what the procedure says, yes.
MR. BUTING: And then you follow that up and inject some of the other samples, if they are positive, into the positive ion mode, correct?
MARC LEBEAU: That's correct.
MR. BUTING: And in this case, Mr. Brewer did the reverse, didn't he?
MARC LEBEAU: Yes, he did.
MR. BUTING: He injected it, first, into the positive ion mode, right?
MARC LEBEAU: Yes, he did.
MR. BUTING: And then into the negative ion?
MARC LEBEAU: Yes, he did, per my instructions.
MR. BUTING: Okay. Your instructions?
MARC LEBEAU: Yes.
MR. BUTING: Okay. So on the very first time you used this protocol, you started changing the procedures around?
MARC LEBEAU: No, sir. Consider that a minor deviation, simply, it's like you put your right shoe on first or your left shoe--
MR. BUTING: Okay.
MARC LEBEAU: It's that simple.
MR. BUTING: The exhibit in front of you, also, in paragraph two -- number two, I should say, not paragraph two, first page?
MARC LEBEAU: Paragraph two, first page.
MR. BUTING: Not paragraph two, item number two, where it says scope?
MARC LEBEAU: Yes, sir.
MR. BUTING: It says that this procedure allows for the screening and confirmation of EDTA in suspected bloodstains, right?
MARC LEBEAU: That's correct.
MR. BUTING: The protocol isn't actually validated to do -- to quantitate a particular specific level of EDTA, correct?
MARC LEBEAU: That's exactly right.
MR. BUTING: And the difference, just so we're clear, is that protocol is designed to see if there's any level of EDTA that can be detected under your -- above your bar, your limit, right?
MARC LEBEAU: Yes, that's part of it, yes.
MR. BUTING: But the protocol is not designed to allow you to actually fix a number and say this is 500 micrograms or whatever, right?
MARC LEBEAU: It's not validated to provide an accurate number on any measurement we make where we put a number on it.
MR. BUTING: Okay. Mass spec instruments, though, you can set up a protocol and they are sometimes used to actually quantitate, right?
MARC LEBEAU: Yes, they are.
MR. BUTING: But you didn't use it -- you didn't use the instrument in this type of protocol to do that, right?
MARC LEBEAU: That's correct, we did not.
MR. BUTING: And you did not, for instance, when you tested in the blood vial that had Mr. Avery's name on it, you didn't quantitate what level of EDTA was in the tube, right?
MARC LEBEAU: It wasn't validated to do quantitative analysis, so we did not --
MR. BUTING: All right.
MARC LEBEAU: -- put a specific value on the amount of EDTA that was present in the tube.
MR. BUTING: That's fine. That's all I'm asking. You didn't do it, right?
MARC LEBEAU: That's right.
MR. BUTING: And you issued your report, Exhibit -- what is it, 326? No. Do you have the report up there with you?
MARC LEBEAU: Yes, I do.
MR. BUTING: What is the number?
MARC LEBEAU: Exhibit 435.
MR. BUTING: 435. You didn't -- As per the protocol, you didn't express any kind of opinion in the report about how much, if any, EDTA was detected in the vial from -- of Mr. Avery's blood, right?
MARC LEBEAU: No, I did not.
MR. BUTING: Okay. And one of the things that was kind of really unique about it, or is unique about this case, is that when you are testing that purple vial, it's 11 years old, right?
MARC LEBEAU: Yes, I believe it was.
MR. BUTING: It was drawn from Mr. Avery's arm in January of 1996 and tested in your lab in February of 2007, correct?
MARC LEBEAU: I would have to refer to my notes.
MR. BUTING: Go ahead.
MARC LEBEAU: Yes, that's a correct statement.
MR. BUTING: Okay. And we talked a little bit -- or you talked a little bit about this, I think, with Mr. Gahn, but the whole question of the stability or lack of stability of this chemical, EDTA, is an issue of research, correct? In the scientific community?
MARC LEBEAU: I don't know how much it's researched these days. It's -- I think it's very well documented. I don't know how much ongoing research there is on it.
MR. BUTING: Well, you mentioned that it's a concern that some environmentalists have that this chemical could be building up in our water and our soil, right?
MARC LEBEAU: That's correct, yes.
MR. BUTING: On the other hand, manufacturers who include this chemical in their products are countering that by saying that this a biodegradable product and will ultimately be dissolved and not be a problem?
MARC LEBEAU: No, sir, I don't believe that's true.
MR. BUTING: Are the manufacturers telling the environmentalists that you are right, this drug is just going to build up in our soil and water forever?
MARC LEBEAU: I don't know that the manufacturers are saying anything to the environmentalists.
MR. BUTING: You are not aware of any debate, ongoing research in that field?
MARC LEBEAU: No, sir, I'm not.
MR. BUTING: But you did mention that you were aware of some degree of studies about the stability of EDTA, right? I believe you testified to that.
MARC LEBEAU: Yes, I'm aware of a number of studies that discuss the stability of EDTA as well as chemistry reference books that talk about the stability of EDTA.
MR. BUTING: Okay. Can you cite me to any study, published study, that's ever studied the -- or evaluated the degradation rate of EDTA in an 11 year old vial of blood?
MARC LEBEAU: No, sir.
MR. BUTING: Can you cite me to any published study that has ever tried to characterize the degradation rate of EDTA in any blood substance, stains or liquid?
MARC LEBEAU: Yes, sir, I can.
MR. BUTING: What's that?
MARC LEBEAU: The Journal of Analytical Toxicology article that I believe you have. I'm sorry. For clarification, did you say an 11 year old bloodstain?
MR. BUTING: Well, at first I said 11 year old and you are aware there is no study of blood that old, right?
MARC LEBEAU: Yes, sir, I'm aware of that.
MR. BUTING: You do know, though -- Let me just step back for a second, you do know that EDTA is biodegradable eventually, correct, or is that the wrong term?
MARC LEBEAU: That's the correct term, the research suggests that it is not very biodegradable.
MR. BUTING: But the research also suggests that it can be broken down, correct?
MARC LEBEAU: Extremely harsh conditions, yes.
MR. BUTING: Well, waste water treatment plants have been doing studies where they determined that if you increase the PH in the treatment plant, you can break down EDTA quite readily, right?
MARC LEBEAU: Well, the published references say that if you boil EDTA in a highly alkaline solution, which would be high PH, it doesn't breakdown.
MR. BUTING: You are not aware of studies that talk about using lime in waste water treatment to increase the PH so that it breaks down?
MARC LEBEAU: Well, the lime may be doing other things, other than just dealing with PH. And there are numerous steps that they take to breakdown the EDTA in water, so it's not just lime.
MR. BUTING: Okay. But it is -- there are steps they take to break it down.
MARC LEBEAU: Again, very harsh steps.
MR. BUTING: In your opinion, you have never done any yourself --
(Court reporter asked to have the last answer repeated.)
MARC LEBEAU: Harsh. Harsh steps.
MR. BUTING: Harsh in your opinion because you have never actually done of any of those studies, right?
MARC LEBEAU: Harsh in my review of the literature, as they call them. I'm quoting some of those references. They are referring to things that, as a chemist, I consider to be quite harsh.
MR. BUTING: Have you ever done any kind of experiment yourself to see if you can actually make EDTA break down into its components?
MARC LEBEAU: No, I haven't done any studies.
MR. BUTING: Okay.
MARC LEBEAU: But your question is twofold there. And you said into its components, I'm not aware of the components that EDTA breaks into.
MR. BUTING: Well, at some point, it can be degraded, whether it's harsh or whatever, that's what I'm talking about.
MARC LEBEAU: And then it would just fall apart as a molecule.
MR. BUTING: Okay. I apologize, I don't know all the terminology, but you get my drift, right? You understand the question?
MARC LEBEAU: I do understand the question.
MR. BUTING: And you haven't performed any experiments to break it down, break the molecules apart?
MARC LEBEAU: I have not performed any such experiments.
MR. BUTING: Okay. You did, however, testify about performing a little study just last week, right?
MARC LEBEAU: Correct.
MR. BUTING: And that study was designed to see whether or not you would still be able to detect EDTA in some blood spot cards that you had had on -- or that your lab, one of your units had, right, from a number of years ago or, actually, 33 months?
MARC LEBEAU: I need you to --
MR. BUTING: All right.
MARC LEBEAU: -- repeat that question, please.
MR. BUTING: It's a little study that you are talking about in which you tried to see if -- if you could still detect EDTA in some spot cards, that were 33 months old, is something you did last week, right?
MARC LEBEAU: That's correct, yes, last week.
MR. BUTING: And you actually did it on February 28th?
MARC LEBEAU: If I can refer to my notes.
MR. BUTING: Go ahead.
MARC LEBEAU: Yes, sir, that's correct, February 28th.
MR. BUTING: Now, on February 26th, you issued the report in this case, right?
MARC LEBEAU: That is correct.
MR. BUTING: With your opinions, right?
MARC LEBEAU: That's correct.
MR. BUTING: The opinions that you knew you'd have to express in court, under oath, in front of a jury, right?
MARC LEBEAU: Correct, yes.
MR. BUTING: And so when you issued that report, you had done no study whatsoever of whether or not EDTA would be stable enough to be found in some old bloodstains or blood vial, correct?
MARC LEBEAU: Yeah, I had not personally done it, but it was in the literature.
MR. BUTING: And the literature you are referring to is this analytical chemistry thing, right?
MARC LEBEAU: No, sir. The Journal of Analytical Toxicology did a stability study of EDTA in old blood stains as well.
MR. BUTING: Two years old, right?
MARC LEBEAU: I believe it was 24 months, yes.
MR. BUTING: Okay. And you knew in this case you were talking about a blood vial that's 11 years old, five times longer, right?
MARC LEBEAU: Well, my understanding there, the bloodstains were just about two years old themselves.
MR. BUTING: Well, if the vial of blood that came out of Mr. Avery's arm on January of 1996 was used to plant the stains in the RAV4 in 2005, then that blood at that time was already almost nine years old, correct?
MARC LEBEAU: That's correct.
MR. BUTING: And, then, since that date, another 16 months or so had elapsed?
MARC LEBEAU: Yes, that's correct.
MR. BUTING: Okay. So you issue your report, without doing any study of your own on what the stability might be of EDTA in a bloodstain, correct?
MARC LEBEAU: That is correct.
MR. BUTING: And so, then, two days later -- Was that after Mr. Gahn called you and asked you a question that I had raised, that you decided to do this study?
MARC LEBEAU: No, I decided to do the study based on the letter you sent requesting materials, discovery materials, and one of the items you requested were any studies that the FBI had done on the stability of old bloodstains.
MR. BUTING: Okay.
MARC LEBEAU: It prompted me to start thinking, is there a way that we could do it.
MR. BUTING: Okay.
MARC LEBEAU: And I went to our DNA Unit and asked them if they had any old blood cards with EDTA on it, and they did. So we decided to go ahead and run them to see if it would help, for this particular case.
MR. BUTING: Okay. So -- I'm glad you cleared that up. So, then, this -- this study that you did on stability was because the defense attorney in the case had pointed out to you that something might be lacking in your ability to express an opinion to the jury about how stable EDTA was or was not; would that be fair?
MARC LEBEAU: No, that wouldn't be fair at all, sir.
MR. BUTING: Okay. Well, we'll let the jury draw whatever inference they want from that. But I'm showing you now what exhibit -- what's exhibit -- I'm sorry -- 444, this is your EDTA stability study, right? It's up on the screen?
MARC LEBEAU: Oh, that is the summary of the EDTA stability study. Those are my notes doing a quick review of what we found.
MR. BUTING: Okay. And these are the other notes attached to this study dated February 28 of '07, correct?
MARC LEBEAU: That's correct.
MR. BUTING: And those are Mr. Brewer's initials, again?
MARC LEBEAU: Yes, that's Dr. Brewer's initials.
MR. BUTING: Dr. Brewer, I'm sorry.
MARC LEBEAU: Yes.
MR. BUTING: And other than these handwritten notes and this one paragraph, there's nothing else that tells us about this study that you did, right?
MARC LEBEAU: No, that's false.
MR. BUTING: Did you write up some report?
MARC LEBEAU: No, there are pages of data that are related to that study.
MR. BUTING: Okay. Just graphs and charts and things of that nature, right?
MARC LEBEAU: That's correct. That's the actual study. This is the interpretation of the study and the notes as to how the study was put together and how it was actually run.
MR. BUTING: Okay. So would you submit this to some journal to be published, in its form?
MARC LEBEAU: That one paragraph, I don't believe would be accepted for publication, sir.
MR. BUTING: I thought not. Let me just talk about the timing of this for a second. If you had done this test, two days after you issued your report, because you are worried about my cross-examination of you, and if you had found that these --
MR. GAHN: Objection, your Honor, to the form of that question and that's not what his testimony was.
MR. BUTING: I haven't finished it, but I will start rephrasing it. If you had done this study, two days after issuing your report and you knew you were going to come into court and testify under oath about and if you had gotten results that would show this EDTA really wasn't as stable as you thought it was, you would be -- you would have a bit of a problem there, wouldn't you?
MARC LEBEAU: Well, we would be refuting all the published scientific data out there that suggests that EDTA is an incredibly stable complex, so it would be rather a eureka moment, quite frankly.
MR. BUTING: And so, then, there would have been no reason for you to do this study at all, right? If it's -- If it's that clear in the published literature, there would have been no reason for you to do this study two days after you issued your report, would there?
MARC LEBEAU: Obviously, we didn't do it as part of the method development, so I do not consider it to be a relevant aspect of putting the method together, doing the analysis in this case, and providing that report to the agency that requested the examinations.
But I do believe that it assists in the final interpretation. It does assist in answering your question, your specific question that we had not addressed in my unit. It had been addressed in the publication, as I alluded to earlier. I did think it was a good idea to do since we did have available to us bloodstains that were 33 months old. I didn't think, as a scientist, that I could just pass that by and not test them.
MR. BUTING: Well, I'm very glad to hear that, sir.
MARC LEBEAU: I'm sorry?
MR. BUTING: I'm very glad to hear that, as a scientist, you didn't just pass that by. But, tell me, page two, which is the only place that describes the actual method that was used; is this a protocol?
MARC LEBEAU: I'm sorry?
MR. BUTING: Is this a protocol for testing the stability of EDTA in 33 month old bloodstains?
MARC LEBEAU: These are the notes describing the steps that were taken in order to conduct the study. But the protocol that we used is the published protocol, the issued standard operating procedure for the analysis of EDTA in dried bloodstains.
MR. BUTING: So, did you submit a protocol to determine the stability of EDTA, long term, over many, many months?
MARC LEBEAU: I don't think I understand that question.
MR. BUTING: You just used the protocol you developed to see if there is EDTA in a particular stain at a given time, right? Correct?
MARC LEBEAU: Yes.
MR. BUTING: Which isn't designed to quantitate how much EDTA, if any, is there?
MARC LEBEAU: That's right.
MR. BUTING: My question is, did you develop a protocol, as a scientist, that would be accepted for peer review, that would determine -- be designed to determine the stability of EDTA, as the term you actually used here, to determine EDTA stability?
MARC LEBEAU: Yes, I believe that the work that was done here is worthy of -- total worthy of publication if we decide to write it up and submit it to a journal.
MR. BUTING: Okay. But you just used the other protocol that you already developed, you didn't develop a new protocol to study how stable EDTA was; am I right?
MARC LEBEAU: I'm sorry. I'm not completely understanding your question. We used this stepwise procedure, page two.
MR. BUTING: Let me just ask, very simple: Did you develop a new protocol -- the question probably begs the answer -- but you did not develop a new protocol and go through your rigorous review and approval and validation and studies, and all of that, for the specific question of determining the stability of EDTA, correct?
MARC LEBEAU: We did not develop a new protocol to address the -- any potential breakdown of EDTA, but we did determine that we could still --
MR. BUTING: Okay.
MARC LEBEAU: -- find EDTA in a 33 year old -- not -- 33 month old bloodstain.
MR. BUTING: And looking at this result, you tested a total of 10 spot cards, right?
MARC LEBEAU: That's correct.
MR. BUTING: That you got from the DNA Unit?
MARC LEBEAU: Yes.
MR. BUTING: You didn't know where they came from, right?
MARC LEBEAU: I didn't, no.
MR. BUTING: Didn't know whether they came out of a purple-topped tube, a yellow-topped tube, a red-topped tube, or a gray-topped tube, right?
MARC LEBEAU: Wrong.
MR. BUTING: Wrong?
MARC LEBEAU: That's an incorrect statement you just made.
MR. BUTING: Okay. How did you know what kind of tube a little spot on a piece of paper came from?
MARC LEBEAU: Because I was informed by the analyst in DNA that these were all EDTA bloodstains.
MR. BUTING: Okay. So you relied on that, whatever information that was?
MARC LEBEAU: Yes.
MR. BUTING: Okay. And when you tested them, you found that 4 of the 10 spot cards you could not determine -- you could not detect the iron complex EDTA, correct?
MARC LEBEAU: That's correct, 4 out of the 10 it failed --
MR. BUTING: Okay.
MARC LEBEAU: -- the requirements failed to actually make the call. There was an indication of it's presence, though.
MR. BUTING: But something that's an indication, that doesn't reach your threshold, you don't make a call?
MARC LEBEAU: That's exactly right because we err -- we work conservatively.
MR. BUTING: Right. Because something that's just an indication could be an indication of other things, right? That's why you have threshold limits, correct?
MARC LEBEAU: Well, as we discussed earlier, we have the guideline for mass spectral comparison, which was Exhibit 441. That defines how we interpret the mass spectral data. And those four samples failed the requirements in here to actually make the call.
MR. BUTING: All right. So, 40 percent of the samples that were only 33 year -- 33 months old, were already -- had already degraded in the EDTA iron complex?
MARC LEBEAU: No, sir. I wouldn't say that at all. We don't know what the original concentration of EDTA was, of the iron complex, in that spot. Additionally, this was done on spot cards and we validated our method to be done on cotton tipped swabs.
We did not, in this study, go to see, you know, all the steps we talked about earlier about detection limit. We didn't look at interferences. We didn't look at matrix suppression. We did not do the -- Well, the carryover would probably be irrelevant here. But we didn't do all of those steps for extracting it from a filter paper, a DNA filter paper, which is probably insignificant, but scientifically I can't say that with absolute certainty, that that couldn't have some affects because --
MR. BUTING: Okay.
MARC LEBEAU: -- this -- this material may --
MR. BUTING: Sir.
MARC LEBEAU: -- bind more tightly to that filter paper, the bloodstain may. Because that's actually what these are designed for, these are spot cards for blood.
MR. BUTING: Those steps you just mentioned: Carryover, matrix suppression, limited detections, that's called validation, right?
MARC LEBEAU: That's exactly right.
MR. BUTING: And what you just told us is that you didn't validate this study to detect EDTA in spot cards, right?
MARC LEBEAU: That's exactly right.
MR. BUTING: Thank you. So this study, then, wouldn't really tell you how stable or not EDTA might be in a liquid form that's 11 years old, right?
MARC LEBEAU: That's correct, yes.
MR. BUTING: You mentioned -- You mentioned that you were testing swabs, or your tests were designed for swabs of cotton, right?
MARC LEBEAU: Yes, we did all of our validation on cotton tipped swabs --
MR. BUTING: Okay.
MARC LEBEAU: -- because that's what we were told the evidentiary material was going to be in this case.
MR. BUTING: Okay. And cotton swabs are also absorbent, more absorbent than paper, would you agree, or disagree?
MARC LEBEAU: I don't know.
MR. BUTING: You don't know. You haven't tested it, so you don't have an opinion one way or the other?
MARC LEBEAU: I don't have an opinion.
MR. BUTING: Okay. You do have an opinion, though, that EDTA on -- in a bloodstain that is on fabric might be absorbed in different ways so that throughout the stain the level of EDTA is not homogenous, correct?
MARC LEBEAU: Incorrect.
MR. BUTING: You disagree with that?
MARC LEBEAU: Yes.
MR. BUTING: Okay. Did you shake up the tube when you got it?
MARC LEBEAU: Yes, we did.
MR. BUTING: Mix it up real well?
MARC LEBEAU: Yes.
MR. BUTING: Have no way of knowing if somebody used that vial to plant, as your little PowerPoint showed, drip, drip, drip, drip, drip, whether or not that person would have shaken up the vial, 11 year old -- or nine year old vial, before doing that, do you?
MARC LEBEAU: Could you repeat that question?
MR. BUTING: You have no way of knowing that if somebody used that vial to plant blood in the Halbach vehicle, whether that person shook that vial up like a scientist would before doing so, do you?
MARC LEBEAU: If that was the scenario, then, I wouldn't know if they shook that vial first.
MR. BUTING: Okay. By the way you never did any -- I think you testified about the swabs when you had the photos up there, you kept referring to them as bloodstains here and there, right? Do you recall that?
MARC LEBEAU: Yes, that's what they were reported to us as being.
MR. BUTING: Okay. Reported to you, but you didn't do any kind of presumptive tests on them?
MARC LEBEAU: No, sir, I'm not a qualified serologist.
MR. BUTING: So the portion when you -- well, not you, but when Mr. Brewer cut the swabs -- By the way, were you present when he cut the swabs?
MARC LEBEAU: Yes, I was.
MR. BUTING: Okay. You didn't test to be sure that the section that he was cutting did or did not prove presumptively positive for the presence of human blood, right?
MARC LEBEAU: Again, I'm not qualified to do that. It was reported to us that this was blood and that had been confirmed by testing at another laboratory.
MR. BUTING: Well, it had been confirmed to you that somewhere on this swab, the portion of the swab that was cut off by the prior lab had tested, that had blood, right? As far as you know?
MARC LEBEAU: Yes, that's -- I believe that's what I said.
MR. BUTING: Okay. But the portion that was left on those swabs, you don't know that anybody ever tested to see if there was blood, and if so, how much of the swab that was being cut off contained the blood, right?
MARC LEBEAU: That's correct.
MR. BUTING: Okay. You know that blood and EDTA -- that EDTA is a binding; you call it chelating, but the same way -- another way of saying binding, right, molecules?
MARC LEBEAU: Yeah, it binds -- it binds metals, that's correct.
MR. BUTING: Particularly metals, right?
MARC LEBEAU: Yes.
MR. BUTING: And so it may bind with one substrate that a stain is sitting on differently than another substrate that a stain is sitting on, right?
MARC LEBEAU: If it's not already bound to another metal, yes.
MR. BUTING: Okay. And by substrate, I'm talking -- it's another way of saying a surface, particular surface, right?
MARC LEBEAU: That's correct.
MR. BUTING: You only tested three swabs that were reported to have been taken, or found, in the Teresa Halbach vehicle, right?
MARC LEBEAU: That's correct.
MR. BUTING: Do you know how many other swabs or how many other stains were also found in that vehicle?
MARC LEBEAU: No, I don't.
MR. BUTING: Your opinion that there's no EDTA in the swabs from the Halbach vehicle, then, is limited to the three swabs that were presented to you; isn't that right?
MARC LEBEAU: Could you repeat that?
MR. BUTING: You expressed an opinion a little more broadly than perhaps you intended to, I believe, which was that your opinion was -- let me look for my notes -- that the stains in the Halbach -- bloodstains in the Halbach vehicle could not have come from the purple vial that you tested, right?
MARC LEBEAU: That's correct.
MR. BUTING: But you're actually referring only to the three stain swabs that you tested, correct?
MARC LEBEAU: No, I believe my original testimony is what I meant.
MR. BUTING: Well, are you telling me right now, that even though you never tested three other swabs of separate bloodstains found elsewhere in the RAV4 vehicle, that you're willing to express an opinion that none of those three swabs have EDTA either?
MARC LEBEAU: I am willing to -- to conclude that.
MR. BUTING: Oh, you are?
MARC LEBEAU: Yes, sir. If I can elaborate.
MR. BUTING: Well, no, let me finish my -- my question. So even though you didn't test those other three swabs, you are prepared to state that they could not have come from the blue -- the purple-topped vial that you tested of Mr. Avery's blood?
MARC LEBEAU: I believe that to be true within a reasonable degree of scientific certainty, yes.
MR. BUTING: Okay. I just wanted to know how far you were willing to go. And the -- You also give another interesting opinion where you -- I'm not sure exactly how it came out after I objected and it was rephrased, but that you believe the planting scenario, one of those two -- you only gave two scenarios there, one which is that the blood came from a dripping finger that you so helpfully gave us on the screen, right, that was one scenario?
MARC LEBEAU: To represent active bleeding. I wouldn't know if it came from a finger or a toe or an arm.
MR. BUTING: Oh, really, you just picked a dripping finger out of just thin air, right?
MARC LEBEAU: That's what happened to be at Microsoft's web site --
MR. BUTING: Oh.
MARC LEBEAU: -- a finger, right.
MR. BUTING: And that was one scenario. The other scenario was that someone was pouring out these little drops from the purple-topped tube, right?
MARC LEBEAU: Sure, yes.
MR. BUTING: And I think if I understood you, you maybe went even farther and said that because of your test on those three stains, there was no way that -- that the blood in the RAV4 could have been planted by anybody; isn't that what you said?
MARC LEBEAU: Yes, that was my opinion. That's correct.
MR. BUTING: Or did you mean that they couldn't have been planted from that purple-topped tube only?
MARC LEBEAU: Well, if you look at all of the information I was given on this case, my opinion would be that it couldn't have come from the EDTA tube that we tested or any other EDTA tube.
MR. BUTING: Okay. But you are not expressing the opinion that it couldn't have been planted from some other blood source, that didn't have EDTA already, are you?
MARC LEBEAU: No, sir.
MR. BUTING: Okay.
MARC LEBEAU: I'm not saying that.
MR. BUTING: Okay. And you never tested any swabs that were reported to you to have been recovered from the garage floor or inside Mr. Avery's tailer -- trailer, were you?
MARC LEBEAU: Could you repeat that?
MR. BUTING: You never tested any swabs that were given to you that were reportedly recovered from the garage floor or trailer of Mr. Avery, did you?
MARC LEBEAU: No, I wasn't.
MR. BUTING: Should we approach the bench for a minute, your Honor?
THE COURT: Sure.
(Side bar taken.)
THE COURT: Members of the jury, we're going to go a little longer than normal to get the witness back to Virginia. I'm told we don't have too much to go. But let's take a quick stretch break and then allow the attorneys to finish. You may continue.
MR. BUTING: Thank you, Judge.
MR. BUTING: (By Attorney Buting)~ The -- Without getting too bogged down in the procedure that's followed and the protocol and all that, if you allow me to oversimplify it, as I understand it, you take these swabs -- And, by the way, let's just clear one thing up, the photograph showed two control swabs for each of these three stains, right?
MARC LEBEAU: Yes, that's correct.
MR. BUTING: You didn't test both control swabs, though, did you?
MARC LEBEAU: No, standard practice, we leave half for retesting, so we tested one and left the other for future testing if that was deemed necessary.
MR. BUTING: Well, aren't these swabs supposed to have been taken from different areas of, like, one side or the other of a particular stain.
MARC LEBEAU: It's from the general area, that's correct.
MR. BUTING: But the theory being that you don't swab the exact same area twice, you swab -- you use the second swab to swab a different control area somewhere around the stain, right?
MARC LEBEAU: That's one way to do it, yes.
MR. BUTING: All right. You don't know how it was done in this case, because you weren't there?
MARC LEBEAU: That's correct, I was not there.
MR. BUTING: Okay. But my point is, you didn't test -- you didn't take half of each -- clip off half of each swab and do it that way, right?
MARC LEBEAU: That's correct, we did not.
MR. BUTING: You just tested one?
MARC LEBEAU: Yes.
MR. BUTING: Okay. The -- As I understand it, what you do is you clip off the swab. You put it in a little -- some sort of a little vial or something. You put a solution in there. And it's actually 200 microliters of something, something of that nature; does that sound right?
MARC LEBEAU: Well, perhaps you are oversimplifying it.
MR. BUTING: Well, you put a solution -- you put a solution into the dry swab sample, right?
MARC LEBEAU: You do, yes.
MR. BUTING: And you allow it to react for a certain period of time, right?
MARC LEBEAU: Forty-five minutes.
MR. BUTING: And your protocol for this particular test, 45 minutes, correct?
MARC LEBEAU: Yes. Yes.
MR. BUTING: And then you -- you centrifuge it?
MARC LEBEAU: Yes, we do.
MR. BUTING: And then, what that does, is it separates the liquid from the solids that drop to the bottom, right?
MARC LEBEAU: The liquid portion goes through the filter and it carries with it the EDTA and EDTA iron complex that was dissolved into the solution.
MR. BUTING: And the solids drop to the bottom?
MARC LEBEAU: No, sir.
MR. BUTING: Well, okay, the liquid is at the top?
MARC LEBEAU: No, sir. If you would like, I can simplify this.
MR. BUTING: Please.
MARC LEBEAU: Okay.
MR. BUTING: Simply.
MARC LEBEAU: The swabs are cut and put into what's called a molecular weight cut off filter, it's a filtering device, sitting in this filter device. And then we add a solution of the internal standard, which I described earlier as the positive control, into each sample. That's 200 microliters, which is -- again, that is approximately a 10th -- I'm sorry -- a 20th of a drop, and that is placed into the --
MR. BUTING: Two hundred microliters?
MARC LEBEAU: I'm sorry, I misspoke. It's not --
MR. BUTING: Yeah, I thought so.
MARC LEBEAU: It's approximately two drops. Thank you. It's approximately two drops of liquid that are placed into that -- onto that swab. And it's left to sit for 45 minutes to allow for -- time for all of the EDTA, or a portion of the EDTA and the iron complex, to actually go into the water that was added to it.
And then we centrifuge it at high speed to drive the liquid through the filter device and the liquid goes to the bottom of the tube and the swab and all the solids remain at the top in the filter itself. And then we analyze the liquid portion.
MR. BUTING: Okay. So I misspoke, it's the other way around, the liquid is at the bottom, right?
MARC LEBEAU: Yes, sir.
MR. BUTING: All right. And then goes into -- there's -- there's approximately 200 microliters of liquid, a little less probably by then, right?
MARC LEBEAU: A little less, yes.
MR. BUTING: Okay. Then it goes into a machine called auto sampler, right?
MARC LEBEAU: No, not exactly.
MR. BUTING: Well --
MARC LEBEAU: It's transferred into a small sampling container, a vial, which is a sealed glass vial. And then we manually place it onto an auto sampler.
MR. BUTING: Okay. And then the auto sampler basically sucks out just five microliters for the test, right?
MARC LEBEAU: For each of the individual tests that we ran on this, yes.
MR. BUTING: Correct. So out of each, Q-49, Q-48, Q-47, the micro sampler takes five micro -- auto sampler takes about five microliters, leaving 190 or so left, correct?
MARC LEBEAU: Well, probably considerably less than 190, but it leaves some residual liquid behind, yes.
MR. BUTING: Okay. And then it's that five microliters that gets tested in the instrument, correct?
MARC LEBEAU: That's right.
MR. BUTING: But you don't save the remaining liquid to be retested by the defense, or another lab, or anything of that nature, do you?
MARC LEBEAU: No, we don't.
MR. BUTING: And presumably, if you did, that would be one way of verifying the results that came from the five microliters that was tested, correct?
MARC LEBEAU: That would be one of many ways it could be --
MR. BUTING: Okay.
MARC LEBEAU: -- reevaluated.
MR. BUTING: Now, EDTA is found, you mentioned, in many, many products, common household products, right?
MARC LEBEAU: Yes.
MR. BUTING: You mentioned shampoos, detergents, and some automotive cleaning products as well, right?
MARC LEBEAU: Yes.
MR. BUTING: Including Armor All?
MARC LEBEAU: No.
MR. BUTING: Make up?
MARC LEBEAU: Some cosmetics.
MR. BUTING: Okay. Also used in photography?
MARC LEBEAU: In some applications of photography, yes.
MR. BUTING: Okay. And, yet, when you tested the controls in this case, you found no EDTA detectable, correct?
MARC LEBEAU: That's exactly right.
MR. BUTING: And that was in the process whereby you have diluted the -- or allowed the solid to react with 200 microliters of liquid, correct?
MARC LEBEAU: That's correct, yes.
MR. BUTING: If you had allowed that to evaporate down to a smaller amount, if there was any EDTA in the liquid, it would be more concentrated, correct?
MARC LEBEAU: Yes, it would be.
MR. BUTING: You did not do that in this case, on the controls, for instance, to rerun them and see if you would detect EDTA at a lower dilution?
MARC LEBEAU: No, I don't believe it was necessary to do.
MR. BUTING: Okay. And, by the way, the -- even with this brand new test you devised, you can't tell the jury, to a absolute scientific certainty, if there is such a thing, that there's no EDTA in any of those blood stains. All you can say is that there is none detectable given your limits of detection, correct?
MARC LEBEAU: Yes, they are negative at our limit of detection, which I feel --
MR. BUTING: Okay.
MARC LEBEAU: -- is more than adequate.
MR. BUTING: I understand that's your opinion, but the point of it is, there might be a lower level of detection which might reveal EDTA; isn't that right?
MARC LEBEAU: Well, you could go lower and start detecting environmental contamination from soil and water, but that, I believe, would just confuse the interpretation on this case.
MR. BUTING: What that might do is just what happened in the O.J. case, which is, show the jury that there is EDTA in the bloodstain rather than that there is not, correct?
MARC LEBEAU: Again, I didn't do the testing in the O.J. case and I'm not fully aware of all the final findings in that particular case. It's been, I believe, 12 years, actually.
MR. BUTING: All right.
MARC LEBEAU: And -- But it's my recollection, to answer your question, that we did not report that there was a significant amount of EDTA in that bloodstain in that case.
MR. BUTING: I want to show you a photograph that we have looked at earlier. Probably this -- one of these two. But I will show you Exhibit 473, first. Take a look at these two. Okay. Have you had a chance to look at that?
MARC LEBEAU: Yes, I have.
MR. BUTING: And is that the blood vial that looked the way it looked when you got it?
MARC LEBEAU: No, sir.
MR. BUTING: It's changed? The one you got was changed? How?
MARC LEBEAU: Well, I can't even verify that this is the same vial, based on this photograph, either of these photographs.
MR. BUTING: Well, I think counsel -- we have had testimony earlier, we can -- for your purposes, you can assume that that is the same vial that ultimately made it to the FBI Lab, at least we hope, okay.
MR. GAHN: I will agree that the witness can assume that that's the vial that came from the Manitowoc County Clerk of Court's Office and was sent to the FBI for your analysis, Doctor.
MR. BUTING: (By Attorney Buting)~ Okay.
MARC LEBEAU: Yes.
MR. BUTING: So, then, my question is, the condition, the way that vial looks to you right now in that picture, is that consistent with the -- is that consistent with the way the vial looked on that day that you saw it?
MARC LEBEAU: If I can refer to my notes.
MR. BUTING: Sure.
MARC LEBEAU: Again, I really can't tell fully because I can't see all the markings on the vial to verify that it's marked exactly the same as when we received it. But when we -- when we received the vial of blood, it came in a different container, as was indicated earlier. It was sealed into a shipping container like this and it has a label on the side that I don't see in either of these photographs. Additionally, the top was sealed with evidence tape on here. Let me correct that last statement, the vial itself was not sealed with evidence tape, it's this outside container that was.
MR. BUTING: Okay. Let me put this up on the screen for you, for the jury. Is this the same exhibit you are looking at right now.
THE COURT: I'm not sure your microphone is on, Mr. Buting.
MR. BUTING: Sorry.
MR. BUTING: (By Attorney Buting)~ Is this the same exhibit that you are looking at right now? Does it look the same?
MARC LEBEAU: No, sir, I believe that's a different photograph.
MR. BUTING: Let me see the photograph, please.
MARC LEBEAU: Yes.
MR. BUTING: All right. Let's try this one. Okay. I think counsel have agreed we have got Exhibit 473 up on the screen now. Let me ask you, when you did open up the vial, or the packaging, and found the purple vial of blood that said -- or that was reported to you to be Steven Avery's, did it appear to you that the vial had been clearly opened at some time?
MARC LEBEAU: Yes, it did.
MR. BUTING: Okay. And is that, in part, because around the edge, as I have zoomed in on this exhibit of the stopper, there appears to be some red blood that has actually seeped in onto the stopper itself?
MARC LEBEAU: That's exactly right, yes.
MR. BUTING: Okay. And that's a clear sign that at some point the top had been opened, right?
MARC LEBEAU: Yes, it is.
MR. BUTING: All right. Your opinions that you expressed today are to a reasonable degree of scientific certainty, right?
MARC LEBEAU: Yes.
MR. BUTING: And just as you would do in any other case where you are expressing an opinion to a jury, correct, as an expert?
MARC LEBEAU: Yes, based on the science, yes.
MR. BUTING: All right. Well, let's talk about another case that you were involved in in which a protocol was developed rather hurriedly, not the O.J. one that you were not involved in, but a fellow by the name of Dr. William Sybers, does that ring a bell?
MARC LEBEAU: Yes, it does.
MR. BUTING: Correct me if I'm wrong, but Dr. Sybers was a medical examiner in the State of Florida, whose wife passed away and nine years later was charged with her murder for poisoning -- allegedly poisoning her with a particular sort of muscle paralyzing drug, correct? Is that a fair summary?
MARC LEBEAU: Yes.
MR. BUTING: Okay. And so what they did was, they dug up poor Mrs. Sybers' body and took samples from the tissue of -- the embalmed tissue of her remains, correct?
MARC LEBEAU: Yes, they did.
MR. BUTING: And then, they went to you, to develop a protocol to test for a particular drug called succinylcholine, that's s-u-c-c -- maybe you can spell it. S-u-c-c-i-n-y-l-c-h-o-l-i-n-e, is that right?
MARC LEBEAU: No, that's wrong.
MR. BUTING: Okay. Tell us, how do you spell it?
MARC LEBEAU: No, that's the correct spelling, your statement was wrong.
MR. BUTING: Okay. You developed a protocol to develop -- in an effort to determine whether, from a metabolite that could be found in someone's postmortem fluids, one could determine if the parent drug had been administered at some earlier time?
MARC LEBEAU: I need you to repeat that before I can respond.
MR. BUTING: You developed a protocol, in that case -- First, let me step back. What you were trying to do, what you were asked to do, was to test these postmortem fluids, a subject which, by the way, you continue to testify on now, in 2007, right, or six?
MARC LEBEAU: Again, that's a multi-question question, I can't respond to it.
MR. BUTING: They train you well on courtroom testimony, don't they?
MARC LEBEAU: I'm just answering your questions --
MR. BUTING: Okay.
MARC LEBEAU: -- truthfully, sir.
MR. BUTING: You were correct that was a multi -- that was a bad question, it's getting late. You still teach at conferences about postmortem fluids, right? The testing of postmortem bodily fluids?
MARC LEBEAU: I do, that's part of my job.
MR. BUTING: Right. And it was back in 1999, I think, right?
MARC LEBEAU: Yes, it was.
MR. BUTING: And you were asked in that case to try and see if you could come up with a test protocol that could determine whether or not Dr. Sybers had poisoned his wife with a particular drug; is that right?
MARC LEBEAU: Not entirely correct, no.
MR. BUTING: Well, you're going to fight me all the way on this I can see. You developed a protocol to try and find out whether the prosecution's theory that Dr. Sybers had poisoned his wife was correct or not, correct?
MARC LEBEAU: No, sir. That's never the intent of developing a procedure is to determine someone's guilt or innocence. It's to simply analyze for the presence of a chemical in evidentiary material. We don't decide the guilt or the innocence.
MR. BUTING: Well, thank God for that.
THE COURT: Sustained.
MR. BUTING: (By Attorney Buting)~ What you were trying to do was to test bodily fluid that had been embalmed nine years earlier and draw some conclusions about whether or not one could make an assessment of whether this parent drug had been administered to the person before they died, correct?
MARC LEBEAU: If I can correct your question a little bit, move things along. We tested, not postmortem fluids, but we tested postmortem tissues, heart, kidney, lung, fat, muscle, as I recall. We were asked to develop the protocol to determine whether or not a chemical called succinylmonocholine, s-u-c-c-i-n-y-l-m-o-n-o-c-h-o-l-i-n-e, was present in these tissues, because another laboratory had found them and we were asked to verify whether or not that laboratory had indeed identified this particular chemical.
MR. BUTING: Okay. And your testing indicated a positive finding for succinylmonocholine in the victim's kidney, correct?
MARC LEBEAU: That is correct.
MR. BUTING: And that particular molecule is a metabolite of the drug succinylcholine, correct?
MARC LEBEAU: Yes, it is.
MR. BUTING: And your testimony was employed, by the prosecution, to obtain a conviction of Dr. Sybers for the murder of his wife by means of the injection of this succinylcholine, correct?
MARC LEBEAU: I did pros -- I did testify for the prosecution in that case, that's correct.
MR. BUTING: And you rendered opinions to a reasonable degree of scientific certainty, didn't you?
MARC LEBEAU: I believe I did. If I rendered an opinion, I would make sure it was within a reasonable degree of scientific certainty.
MR. BUTING: Just as you are today?
MARC LEBEAU: Yes, sir.
MR. BUTING: To a jury just as we have here today, correct?
MARC LEBEAU: To a jury, yes.
MR. BUTING: And that jury convicted Mr. Sybers, correct?
MARC LEBEAU: Yes, they did.
MR. BUTING: The conviction, however, was reversed by the Court of Appeals in Florida four years later, right?
MARC LEBEAU: I don't know when, but I do know that they reversed the decision on appeal.
MR. BUTING: And only after that, when additional tests were done on other tissues or fluids from other deceased persons, was it determined that that very same metabolite you found in Mrs. Sybers' body was also in theirs; isn't that right?
MARC LEBEAU: That's correct. I would like to elaborate on it.
MR. BUTING: You can elaborate in a moment and I'm sure you will take any opportunity you can. But the point being, your protocol was hurriedly developed for the trial of Mr. Sybers' case, right? Mid-trial, while the trial was going on, yes or no?
MARC LEBEAU: I'm trying to answer, but you are not giving me a chance, sir. Yes, it was developed for the Sybers' case.
MR. BUTING: Okay.
MARC LEBEAU: It was a court ordered test that we were --
MR. BUTING: Okay.
MARC LEBEAU: -- told to do.
MR. BUTING: And you didn't decline, right? You could have said, no, we don't have enough time to do this?
MARC LEBEAU: I couldn't decline in that instance, no.
MR. BUTING: Well, did you tell the Court, hey, I just don't have time to do this properly and scientifically?
MARC LEBEAU: No, sir, I was told that the Attorney General of the United States was going to call me and request that we do this exam, so I decided that I would do it.
MR. BUTING: Did you tell the jury that you were under pressure to do -- to develop a test protocol that you didn't feel comfortable doing?
MARC LEBEAU: No, I never -- never told the jury I was uncomfortable developing the test protocol.
MR. BUTING: Okay.
MARC LEBEAU: But I do believe I informed them it was done under rather rushed circumstances.
MR. BUTING: Okay. And you never told them that there was any concerns about the scientific validity of the opinions you were expressing either, were you, correct?
MARC LEBEAU: There were no concerns, in my opinion, about the scientific certainty of what we did in that particular case.
MR. BUTING: Okay.
MARC LEBEAU: And I stand by it today.
MR. BUTING: Okay. Except that years later, when you tested, as you should have all along, other tissues from other bodies, you found the same metabolite?
MARC LEBEAU: Well, it's a complex question; I can't just answer yes or no. We did test tissues from other bodies when we worked to develop the method and validate the method before it was used on specimens in the Sybers case, we did do that.
But what happened was years later we got a new instrument into our laboratory and we had additional cases where we were requested to analyze for the same analyte. And when we started to move the method over to the new instrument, which was more sensitive than the old method, we started to find this chemical there at very low levels in bodies that we knew had never been exposed to that particular drug.
So that was then reported immediately to the investigators in Florida. We did all of that work ourself. We reported it to the investigators and informed the Court of our findings.
MR. BUTING: Now, just out of the goodness of your heart, you kept testing these samples, is that what you are saying? There was no ongoing post-conviction litigation that was involved in this case?
MARC LEBEAU: No, sir, not at all. As I testified, we continued to test specimens because we were requested to do this examination on other cases in the future.
MR. BUTING: Okay. And what happened was this, you expressed an opinion, in court, to the jury, that the presence of the metabolite, succinylmonocholine, proved to a scientific certainty, the prior presence of or injection of succinylcholine, correct?
MARC LEBEAU: Can I see what you are reading from, please.
MR. BUTING: I just asked you the question?
MARC LEBEAU: I don't recall. I would have to see what you are reading from.
MR. BUTING: Okay. Well, I will show you this in just a moment. In any event, several years later, the attorney general, or the prosecutor in Florida, submitted what's called a notice to the court, that is marked as the Exhibit 439, correct?
MARC LEBEAU: I don't know what that form is called, I'm sorry.
MR. BUTING: Well, have you seen this exhibit before?
MARC LEBEAU: First time I saw it was yesterday.
MR. BUTING: Okay. But you saw it yesterday?
MARC LEBEAU: Yes.
MR. BUTING: Okay. I'm going to read you a sentence and you tell me in you agree or disagree with it. The purpose of this filing is to notify the Court and the defendant that recent scientific testing, conducted by National Medical Services and the Federal Bureau of Investigation Laboratories, has discovered that the findings specifically related to this defendant and the testimony of the experts from each of these laboratories, though believed to be correct at the time of the testimony, can no longer be relied upon.
The findings of the presence of succinylmonocholine in the specimens tested are believed to be accurate and correct; however, the opinions that the succinylmonocholine proves, to a scientific certainty, the prior presence of, or ingestion of, succinylcholine are not correct, end quote.
MARC LEBEAU: I disagree with that statement.
MR. BUTING: You do? Oh, this is the State of Florida vs. William Sybers, correct?
MARC LEBEAU: Yes, it is.
MR. BUTING: Okay. Prosecutor apparently agreed with it, correct?
MARC LEBEAU: I think you would have to ask the prosecutor; I don't know.
MR. BUTING: Okay. Well, would you like to see the signature of the State's attorney on this document?
MARC LEBEAU: Yes.
MR. BUTING: Do you see that?
MARC LEBEAU: Yes.
MR. BUTING: Okay. By the way, National Medical Services is the lab that you interned at, correct?
MARC LEBEAU: I did a three month intern there while I was working on my master's in 1987.
MR. BUTING: And in the trial of that case, you and Dr. Kevin Ballard, from that lab, were both testifying for the prosecution, correct?
MARC LEBEAU: Yes, we were both called by the prosecution to testify in that case, that's correct.
MR. BUTING: Do you know how many years Mr. -- or Dr. Sybers spent in prison before the -- before these tests proved to disprove that original thesis?
MARC LEBEAU: I believe he's still in prison, sir.
MR. BUTING: Well, did you ever go apologize to Dr. Sybers?
MARC LEBEAU: No, sir, I did not.
MR. BUTING: Did you ever send a letter or apology to the jurors who convicted him, for giving them an opinion that was later retracted by the prosecutor himself?
MARC LEBEAU: No, because I believed my original testing was accurate, that the specimens did contain what I said were in those specimens, which was succinylmonocholine.
MR. BUTING: And that your opinion was that the presence of that proved poor Mrs. Sybers had been injected by the parent drug?
MARC LEBEAU: And that opinion, of course, was based on the research that was available at the time.
MR. BUTING: And later research proved your opinion to be wrong; isn't that right, sir?
MARC LEBEAU: Not exactly. Later research, with more sensitive instrumentation that was not used in the Sybers case, proved that we were able to find traces of this chemical, now, when we used a more sensitive approach than we actually used in this case.
MR. BUTING: So, later science and instrumentation proved your opinion, offered to the jury to a reasonable degree of scientific certainty in that case, was wrong, correct?
MARC LEBEAU: No, sir. I believe all it did is actually confuse the issue.
MR. BUTING: Just like you are doing here today in Mr. Avery's case, correct?
MARC LEBEAU: I hope I'm not confusing the issue, sir.
MR. BUTING: Well, I hope so too.
MR. BUTING: Thank you, sir that's all I have.
THE COURT: Mr. Gahn, any redirect?
REDIRECT EXAMINATION BY ATTORNEY GAHN:
MR. GAHN: Dr. LeBeau, will you, please, explain to the jurors how you became involved in the Sybers case, what transpired, and how it was finally resolved?
MARC LEBEAU: Yes, I will. There was an investigation of a medical examiner named William Sybers, in the State of Florida. It was a very long ongoing investigation where there was a great deal of evidence -- the investigators felt there was a great deal of evidence against this forensic pathologist in the death of his wife. And the investigation lasted approximately 10 years. Because he was a medical doctor --
MR. BUTING: Judge, I'm going to object, unless this is knowledge that he's acquired on his own, from his involvement in the case, it's hearsay and it's irrelevant. It's at least hearsay.
THE COURT: I think the background of the case is already established and the witness should move onto his role in it and what he knows happened afterward, if we haven't heard it already.
MARC LEBEAU: The laboratory in Pennsylvania was involved in this case and they analyzed those specimens from her exhumed body for the presence of every single chemical known to man. And they found the presence of this chemical called succinylmonocholine. And in that, they concluded that that would -- that chemical was a metabolite that comes from succinylcholine. And that was very well established in the research that dated back into the '50s.
But because they were the only laboratory that did this analysis and because they had some prior evidence rejected by the Court on that particular case, the Court ordered the prosecution to find another laboratory to verify the findings of the laboratory out of Pennsylvania and they called upon us to do so.
So we developed a method -- quickly developed a method to try to identify the presence of this chemical, succinylmonocholine, in tissues, which is actually one of the most difficult types of analyses to do. And we did identify the presence of this chemical in some of the same tissues that the laboratory in Pennsylvania found it in, but not all of them. And I testified to that in the trial, that we were not able to find it in all those tissues and that our method was not as sensitive as the method that was used by the laboratory in Pennsylvania.
I did conclude, at that trial, that the only known source of succinylmonocholine, at the time, came from injections of the parent drug, succinylcholine. And I testified to that. We did validate the method before it was put into use. We ran negative tissues from other bodies that we knew had never been exposed to succinylcholine or succinylmonocholine.
Then, in the years after the trial and the conviction, we were continuing to get requests from other agencies that were claiming that that same laboratory in Pennsylvania had found the presence of this same chemical in old cases, unclosed cases. And after awhile I started to get concerned, because it didn't make sense to me that this very unique drug would be used in so many homicide cases.
So we started testing, using a new instrument. And we transferred the method over to this new instrument that was much more sensitive than what we had used in the past. And in the validation steps for the transfer, we ran some blank tissues again, as we did before we used it in the Sybers case. But this time we started to find small, small amounts of the chemical, succinylmonocholine.
And we -- as soon as we finished that and we verified the findings, we consulted heavily with the laboratory in Pennsylvania and we concluded that this was present in very trace amounts, naturally, in our bodies, at least in postmortem specimens. So we were the very first ones to identify this.
And we reported it immediately, not only to the prosecutor in that case, but prosecutors in other cases. And we also immediately put a letter into the Journal of Analytical Toxicology so that that information would be immediately available to anyone else that may be doing this testing. So my opinion at the time, I feel, was correct. At the time, the only known source for succinylmonocholine came from the parent drug succinylcholine.
MR. GAHN: And it was your testing for this chemical later on that you notified the Court that the technology that you had in place now was finding it?
MARC LEBEAU: That's exactly right.
MARC LEBEAU: My understanding is --
MR. BUTING: Objection, the -- we can -- the Court can take judicial notice of how the matter was ultimately resolved. And unless this witness was involved in the resolution, I don't know how that is relevant.
MR. GAHN: Well, your Honor, I will take the exhibit that defense attorney has been reading from and I would like to get a complete reading of the exhibit.
THE COURT: Is the exhibit available?
MR. BUTING: Yes, it is.
MARC LEBEAU: Yes, it is.
MARC LEBEAU: Dr. Sybers pled guilty.
RECROSS-EXAMINATION BY ATTORNEY BUTING:
MR. BUTING: Dr. Sybers pled guilty to time served and was released immediately, wasn't he?
MARC LEBEAU: That I don't know, sir.
MR. BUTING: You haven't researched it? You didn't look that up; is that what you are saying? Do you know that Dr. Sybers was released from prison, in 2003, as a result of entering a plea that was time served, after this notice was filed with the Court?
THE COURT: I'm going to intercept here and stop with your comment. I think the relevance of whatever happened to him later is borderline. I believe the testimony that's relevant to this case is already in the record.
MR. BUTING: All right.
THE COURT: Members of the jury, we're going to excuse you for today. I apologize for running late. Again, I will remind you not to discuss the case with each other or with anyone else and we'll see you tomorrow morning.
(Jury not present.)
THE COURT: You may be seated. Counsel, I'm not going to take up any of the outstanding motions at this time, but we probably should deal with Exhibit 466, the PowerPoint presentation of this witness that the defense objected to -- defense objected to the admission.
MR. BUTING: I object to it because it really draws a conclusion that -- of a dripping -- a finger dripping blood, when the State is trying to argue that that may have been the source of the blood is highly prejudicial and apparently without any foundation from this witness, according to his own testimony.
THE COURT: Mr. Gahn.
MR. GAHN: I think that the witness -- that the doctor testified that his PowerPoint demonstration would be helpful to the jury. And I think he explained that on cross-examination that the only reason he used that was because it was in the Microsoft. I really don't think it has any impact.
THE COURT: In the Court's mind, the jury has already seen it. He's given a satisfactory explanation. I believe the jury understands it was used for illustrative purposes only and it is consistent with the opinion that he gave, so I'm going to admit Exhibit 466.
MR. BUTING: I would also move to admit whatever -- what are those two, the curriculum vitae, No. 480, of Mr. Brewer -- Dr. Brewer, oh, and No. 479, which is the original intake internal communication document.
THE COURT: Are there any exhibits that you marked that you are not requesting be admitted?
MR. BUTING: I don't believe so. I think we have introduced everything else.
THE COURT: Any objection from the State to any of the marked exhibits being admitted?
MR. GAHN: Only to the CV of Dr. Brewer, I don't what the purpose of that is. Dr. Brewer did not testify.
THE COURT: He did not testify, but there was testimony he played a role in the testing of the blood, so I'm going to allow that exhibit as well. Anything else today?
MR. STRANG: Are 475 through 478 in?
MR. STRANG: They are, okay.
THE COURT: All right. We'll see you tomorrow morning.
THE COURT: Assuming the defense isn't asking him to say.
MR. BUTING: No, we're not.
THE COURT: He is excused.
MARC LEBEAU: Thank you, your Honor.
(Proceedings concluded.)