1.Janine Arvizu — Direct/Cross/Redirect/Recross/Redirect
862 linesTHE COURT: At this time the Court calls State of Wisconsin vs. Steven Avery, Case No. 05 CF 381. We're here this morning for a continuation of the trial in this matter. Will the parties, again, state their appearances for the record.
MR. FALLON: Good morning, your Honor, may it please the Court, the State appears by Assistant Attorney General Tom Fallon, District Attorney Ken Kratz, and in a very short moment, Assistant District Attorney Norm Gahn on behalf of the State.
MR. STRANG: Good morning, your Honor, Attorneys Jerome Buting and Dean Strang appearing with Mr. Avery.
THE COURT: Very well. The defense may call its next witness at this time.
MR. BUTING: Okay. The defense calls Janine Arvizu.
COURT CLERK: Please raise your right hand.
JANINE ARVIZU, called as a witness herein, having been first duly sworn, was examined and testified as follows:
COURT CLERK: Please be seated. Please state --
MR. FALLON: Could we have just one moment for Mr. Gahn, this will be his witness. He apparently is momentarily delayed.
MR. KRATZ: It will just be a moment, Judge, he's carrying some things in.
THE COURT: All right. I will allow the Clerk to swear the witness, and then we'll wait for the examination until Mr. Gahn gets here.
MR. FALLON: Thank you.
COURT CLERK: Please state your name, spell your last name for the record.
JANINE ARVIZU: My name is Janine Arvizu, A-r-v-i-z-u.
MR. BUTING: This microphone has been a little bit touchy the whole time, so we'll try it right about there.
JANINE ARVIZU: Okay. Thank you.
THE COURT: All right. Mr. Buting, you may begin.
MR. BUTING: Thank you, your Honor.
DIRECT EXAMINATION BY ATTORNEY BUTING:
MR. BUTING: Ms Arvizu, would you tell us your occupation, please.
JANINE ARVIZU: Yes, I'm a Laboratory Quality Auditor.
MR. BUTING: Okay. And how are you employed?
JANINE ARVIZU: I do independent contracting for people who use analytical data and want to understand how much reliable -- how reliable and how valid the data are.
MR. BUTING: Okay. And before I get into that a little bit more, would you tell me, first, what your educational background is?
JANINE ARVIZU: Yes, sir. I have a Bachelor of Science in Bio-Chemistry from Cal Poly in San Luis Obispo and a ABD in Chemistry from the University of New Mexico. And I'm certified as a quality auditor by the American Society for Quality.
MR. BUTING: Okay. And what is an ABD?
JANINE ARVIZU: ABD is all but dissertation, it's, essentially, that you have completed all the course work and examinations for a Ph.D. but did not complete the dissertation.
MR. BUTING: Okay. Maybe just explain to us why you got to that point and didn't complete your Ph.D.?
JANINE ARVIZU: I accepted employment with one of the DOE, Department of Energy, National Laboratories, to continue the work I was doing my dissertation on, that was funded by the Department of Energy. After I accepted employment and started working, we lost funding for that project, so I elected to keep the job rather than go back to school.
MR. BUTING: Okay. And do you have exhibit -- I'm sorry, what is the exhibit number in front of you?
JANINE ARVIZU: 499.
MR. BUTING: 499. Can you just identify that for the record?
JANINE ARVIZU: It's a copy of my resumé.
MR. BUTING: Okay. And does that summarize your educational background, as well as your areas of expertise and your professional experience?
JANINE ARVIZU: Yes.
MR. BUTING: All right. We'll talk a little bit about your professional experience in a minute, but, first, the chemistry that you are involved with, is that analytical chemistry?
JANINE ARVIZU: Yes.
MR. BUTING: And what is a lab auditor and who uses them?
JANINE ARVIZU: A lab auditor is pretty much similar to what you would expect for an auditor of any other discipline. Lab auditors go into laboratories and, essentially, look at how reliable and how valid the data are that are reported by a laboratory.
The people who use lab results, it's not like buying a pound of sugar or buying a pound of flour, different laboratories produce different quality data. And so if the data that are being used by a data user are real important and they make real important decisions based on those results, then they can hire an auditor to come in and look at the lab's operations and see whether or not the lab was operating in accordance with good scientific principles and had good quality control practices at the time the laboratory work was done.
And so, over the course of my career, the majority of my work assessing data quality and looking at labs has been done for the federal government, because they are probably the biggest consumer of laboratory results. They use a lot of analytical results. And so it's real -- And they make very important decisions based on those results, so it's real important to them to understand how reliable and how valid their data are.
MR. BUTING: Does your employment -- or has your professional experience involved review of commercial, private laboratories exclusively, or government exclusively, or combination, or what?
JANINE ARVIZU: Mm-hmm. I have conducted audits of both commercial and government laboratories. Because, again, the government both operates its own laboratories and contracts with commercial services.
So I have audited state laboratories, federal laboratories, commercial laboratories, in a wide variety of disciplines. These are labs that test environmental samples, food samples, pharmaceutical samples, the whole manufacturing, a whole gamut of samples.
MR. BUTING: So what -- what arm of the federal government would employ you to do an audit of another government lab? I mean, you know, one part auditing another part, right hand, left hand?
JANINE ARVIZU: I'm not sure that's exactly the way it happens. For example, I would be contracted by the U.S. Navy to audit the laboratories that did analytical work for the Navy. So that would include both Navy laboratories, actually staffed by Navy personnel, as well as commercial laboratories.
So, it was -- And the Navy, if you will, was the user of the results, and so they wanted to know how much confidence they could have, but it included -- I guess they were in a different part of the Navy, if that's what you mean.
MR. BUTING: Okay. And why is it important that a government lab or a private lab be audited?
JANINE ARVIZU: Experience has shown, in the business of science, you know, it's really, really hard to do science on a production line. I managed an analytical lab for the Department of Energy for a number of years, and it's a really, really hard job to do.
And that's what we're really asking of these laboratories who are testing unknown samples, is to practice science day, after day, after day, in a highly defensible and valid manner. It's a really hard job.
And the -- Experience has shown in the measurement in science business, that the best way to insure the reliability and the validity of the results is to have a very rigorous, quality assurance program in place.
It's not a management gizmo of the week; it's a very technically driven job to put in place quality control practices and measures, to ensure that you consistently and reliably produce good quality data.
And so that's what drives it, ensuring that you understand the quality of your data and that your data is good enough so you can make good confident decisions based on them.
MR. BUTING: And does the -- does the government, federal government in the instance -- in the situation that you had some experience in, do they ask for audits of -- let's say, let's go to private labs first a minute, just to check up and see if they are okay, or are they sometimes concerned about more serious things in the use of tax dollars?
JANINE ARVIZU: It's a little bit of both. And the nature of the problems can be either that the lab doesn't know they have a problem, so when you go in as an auditor you're identifying a problem that they were largely unaware of.
For example, I did some work for the Navy where they were interested in the presence of a particular contaminant in bay water. And the laboratory reported that it was not detected. Lots and lots of samples, it was a very expensive analysis. It was hundreds of thousands of dollars worth of analysis in question, and the laboratory reported it was not detected.
But when I went in and audited the laboratory, I saw that the laboratories detection limit was way up here, and the detection that the Navy was interested in, where they knew they had to pay attention to, was way down here.
So the fact that the lab said it wasn't detected at this very concentrated level, really didn't answer the Navy's question, and so they ended up not having to pay for all that analysis, because it really -- although, it's true that the lab didn't detect it, it was really inappropriate for the Navy's use, and so they ended up not having to pay for it.
MR. BUTING: So you saved the Navy some money --
JANINE ARVIZU: Mm-hmm.
MR. BUTING: -- by showing that the laboratory just didn't provide what was asked for?
JANINE ARVIZU: Correct.
MR. BUTING: Okay. And has some of your investigation also involved, or uncovered, any kind of fraudulent practices by laboratories, government or otherwise?
JANINE ARVIZU: Yes. One of the things that you do as an auditor is, is you try to reconstruct things after the fact. All I'm dealing with, after the fact, is a pile of paper. And so I'm trying to reconstruct everything that happened with that sample, from the time it was collected in the field, all the way till it was ultimately reported on a piece of paper in a lab report. And try to understand whether all the controls were in place, and the integrity of the sample was maintained, and the results are valid and reliable.
So that's the whole process. And I have kind of forgotten the beginning of that question, I apologize.
MR. BUTING: Whether or not you have had any experience in detecting, or anything fraudulent.
JANINE ARVIZU: During the course of that process, for example, at a commercial laboratory, I determine that although it appeared that they had results and they had data, the paper data that looked like results, when you put it altogether, I realized that they were actually reporting more data than they had the capacity to generate with their instrument. It was like they only had the ability with their instrument, for how long the method took, to run one sample in one day, and they were reporting results from many samples in one day.
That meant that they were -- in our local term it's "dry labbing", they were making up results. They weren't testing the samples; they were just making up the results. Obviously, a clearly fraudulent practice that the government doesn't want to pay for.
So that's the kind of big picture perspective that you look at when you try to audit laboratories.
MR. BUTING: And as a result of some of your work or investigations, has there been any criminal penalty -- criminal or civil penalties imposed on labs when they do that sort of thing?
JANINE ARVIZU: You know, I just -- I just report it to the government. I don't know what they do as a follow-up.
MR. BUTING: Okay. By the way, I don't know if it was made clear, but what is your -- where -- who do you work for now?
JANINE ARVIZU: In this case?
MR. BUTING: No, I'm sorry. What's your employment, your business?
JANINE ARVIZU: I'm an independent contractor in my -- in my assessment duties as a forensic.
MR. BUTING: Okay. Where is it based?
JANINE ARVIZU: In the Albuquerque, New Mexico area.
MR. BUTING: Okay. Do you work -- do you have any limits on where you work, or are you all over the place, or what?
JANINE ARVIZU: I'm all over the place. I get data from all over the country, even from overseas. I have testified overseas as well.
MR. BUTING: And you have been doing this for approximately how long?
JANINE ARVIZU: Well, I have been auditing labs and doing data quality assessments for many, many years. But do you mean, specifically, in the forensic discipline?
MR. BUTING: Sure.
JANINE ARVIZU: In the forensic discipline, since the late '90's.
MR. BUTING: Okay. And in terms of auditing labs, in general, how long has your career been in that?
JANINE ARVIZU: Since the '80s.
MR. BUTING: And have you published any articles or anything?
JANINE ARVIZU: The business of data quality assessment, I'm working for the people using the results, and they generally have proprietary use to the results that I report to them. However, when I was working for the Navy, I actually authored their quality standard that they used for the evaluation of laboratories. And it, essentially, was the rules of the road for government commercial labs that they wanted to work for the Navy.
MR. BUTING: All right. Are you familiar with -- We have had some testimony about different types of instruments that analytical chemists use. Are you familiar with liquid chromatography?
JANINE ARVIZU: Yes.
MR. BUTING: And mass spectromety -- spectrometry?
JANINE ARVIZU: Yes.
MR. BUTING: And the instruments that are used for those kinds of tests?
JANINE ARVIZU: Yes.
MR. BUTING: Have you operated those kinds of instruments?
JANINE ARVIZU: I have operated both.
MR. BUTING: Okay. Can you tell us what a protocol is?
JANINE ARVIZU: Mm-hmm. A protocol simply describes how a laboratory does a -- performs a particular method. It sets down the recipe, if you will, for how they treat samples and what controls they introduce, what it takes to have acceptable performance or not.
MR. BUTING: And as part of your auditing process, when you go to a lab, what things do you look at; is it people, instruments, method, what?
JANINE ARVIZU: And then some. The process of doing an on-site laboratory audit, personally, I find it very, very interesting, because you always see things in person that you will just never see on the paper.
So, on-site, I'm looking at everything from how they actually perform the manipulations; whether they use good laboratory practices; whether they seem to understand the principles of contamination control, which are so important in a laboratory; to looking at the heating, ventilating, and air-conditioning system. I'm looking to see where the make up vents provide air, to see whether that could be a potential contamination problem.
I'm looking at how they set up instrumentation. I'm looking at the documentation maintained by the lab. I look at everything.
MR. BUTING: You look at the, specifically, protocols; is that something that you examine, consider, and evaluate in the process of doing these lab audits you refer to?
JANINE ARVIZU: Absolutely. Always read the protocols before going on-site, to understand how they say they do their method, and then watch them and look at the written work that they generate to see whether they, in fact, followed their method.
The nature of chemistry is such that it's so very important to follow protocols. For any time that you deviate from a protocol, then you have got to make a note of it.
It's a lot like a recipe. Again, if you don't follow the recipe exactly, then that chocolate cake isn't going to be as good as the one that grandma makes. But if grandma doesn't want to share her recipe, and she leaves out ingredients, or doesn't really follow hers exactly, you're not going to be able to reproduce her work.
The same thing applies in the laboratory. As scientists, we want to be able to reproduce somebody else's work. That means they have to have a completely documented protocol and they have to follow it.
MR. BUTING: And do you also, as part of this analysis that you go through, consider whether or not the protocol is being used for the purpose that it's intended and whatever limitations there may be in its actual scientific validity?
JANINE ARVIZU: What you are referring to is, essentially, deciding whether or not a method is valid. A method that's perfectly acceptable for use in one application may be completely inappropriate for use in another application. So it's really essential to understand exactly the scope of what you are trying to use the results for.
When I managed the Department of Energy's Analytical Laboratory, people were always calling me up on the phone asking me: So, can you analyze for beryllium? Yes, sir, I can. And how low can you go? What detection limit can you detect, they would ask me. And I would stop and say: Depends on what question you are trying to answer. Because you use different methods depending on different applications of the results.
MR. BUTING: All right. Did you -- Did you have an opportunity to review a report by a Dr. Marc LeBeau?
JANINE ARVIZU: Yes.
MR. BUTING: And do you know who he is?
JANINE ARVIZU: I do.
MR. BUTING: Okay.
JANINE ARVIZU: Excuse me, is it okay if I get a drink of water?
MR. BUTING: Sure, isn't there one?
JANINE ARVIZU: Yeah, thank you.
MR. BUTING: Usually there's some up there.
MR. BUTING: All right. I'm going to show you some exhibits that have been marked earlier in this case and see if you can identify or recognize them. Do you see Exhibit 435?
JANINE ARVIZU: Yes.
MR. BUTING: And what is that?
JANINE ARVIZU: That's a copy of the FBI Laboratory's report in this case.
MR. BUTING: By?
JANINE ARVIZU: Authored by Marc LeBeau.
MR. BUTING: Okay. And have you reviewed that report?
JANINE ARVIZU: Yes.
MR. BUTING: All right. And I'm going to show you what's Exhibit 434. And tell us what that is.
JANINE ARVIZU: This is a nine page standard operating procedure by the FBI Laboratory that describes their procedure, their recipe for analysis of EDTA in dried bloodstains.
MR. BUTING: Okay. And the date of --
JANINE ARVIZU: This particular procedure is dated 2/15/2007.
MR. BUTING: Okay. And then, also, Exhibit 446, can you identify that?
JANINE ARVIZU: Well, without looking at every page, this looks like the package that I received for review in this case, that consists of a letter from your office, as well as all the materials received from the FBI Laboratory in this case.
MR. BUTING: Okay.
JANINE ARVIZU: It's about the right size.
MR. BUTING: Okay. The -- Going to the report, do you have an opinion whether this protocol, as reported in the report -- the use of this protocol as reported in the report -- can determine, with scientific validity, whether -- if a stain is tested for EDTA under this protocol, and not found, whether that -- a conclusion can be given that it was not present in the stain?
JANINE ARVIZU: I do have such a conclusion, and it's based on more than just the procedure, but the fact that a stain -- EDTA is not detected in a stain, does not mean that EDTA was not present in the stain.
MR. BUTING: Okay. Do you have an opinion about whether -- if one tests three stains and gets some results, or lack of results, whatever, whether one can express an opinion about what may or may not be in three untested stains?
JANINE ARVIZU: Well, I'm in the business of analytical chemistry, and we're not in the business of just making guesses about what might be in samples; we have instrumentation to test samples and that's how we determine results. There's no way for an analytical chemist to know what's in a sample unless we test it.
MR. BUTING: All right. Going more particularly to the materials that you reviewed, let's talk about the protocol for a moment. It's 434, I believe.
JANINE ARVIZU: Yes.
MR. BUTING: There's a section called scope, does the protocol appear to be adequate for the scope, as it's defined?
JANINE ARVIZU: Yeah, it's a very short description of scope and it's an accurate description of the applicability of this method. It states that this procedure allows for the screening and confirmation of EDTA in suspected bloodstains. So that's exactly what it does, it allows you to screen for EDTA in a bloodstain and to detect EDTA in a bloodstain. I will mention that that's probably the shortest description of method scope I have ever read.
MR. BUTING: Okay.
JANINE ARVIZU: They are generally much more -- there's a little more scientific meat in it in terms of describing under what conditions and so forth.
MR. BUTING: Does this protocol, as its designed, or reportedly designed here, you say that it -- if one follows this recipe and there is EDTA present, that this protocol would allow one to detect it; is that right?
JANINE ARVIZU: To detect and identify it.
MR. BUTING: Okay. Is it also possible, from this protocol, to draw any conclusions, though, if one runs the tests and does not detect EDTA?
JANINE ARVIZU: That's really the problem. The issue with this procedure is not whether or not it's a valid result, if you were actually detecting EDTA. This is a good method. If the results end up that you detect EDTA and you identify EDTA, that's a good -- good indication that EDTA was present in that sample.
The problem really occurs when EDTA is not detected in a bloodstain. And the problem in that regard is, from this method, I don't know whether that's simply because they didn't detect it, or because it wasn't there. I can't tell the difference between those two, for this method.
I don't know, really, what their method detection limit is. So I don't know whether they didn't see it or it wasn't there.
MR. BUTING: Okay. You mentioned method detection limit; is there also something called instrument detection limit?
JANINE ARVIZU: Yes.
MR. BUTING: And as you look at this protocol -- or I'm sorry -- look at the report for a moment, on Page 2, where Mr. LeBeau indicates that, using the procedure employed in this case, EDTA is readily identified at a concentration of 13 -- micrograms?
JANINE ARVIZU: Milligrams per litre. The common term is parts per million.
MR. BUTING: Okay. As you go through his -- the stack of data there that was provided to you, is that a instrumentation limit or is that a method limit?
JANINE ARVIZU: From reviewing the data, that appears to be an instrument detection limit. That is, they figure that out by starting out with a 100 PPM sample and they would inject that right into the instrument and see if they could see EDTA. And they did.
So they cut it in half, diluted it in half, and ran it again. When they ran 50, they still detected EDTA. And each time they cut it in half. When they ran 25, they detected EDTA. When they cut 25 in half, at 12.5, or 13, they still detected it. But when they cut that sample in half and cut it down to about six parts per million, they were not able to detect and identify EDTA.
So based on that, they drew the conclusion that their detection limit, or limited detection as they called it, was 13 parts per million. That, however, represents sort of the theoretical best case of injecting a sample directly into the instrument.
It does not reflect the detection limit for going out and swabbing a stain and extracting the sample from that stain and diluting it before you get it into the instrument. Those are two different things. Instrument detection limits are usually very small. Method detection limits are larger. That's just sort of the natural order of things.
MR. BUTING: Okay. Well, focusing specifically on this type of a method detection limit, why would it be different; why would you be able to detect a smaller amount if you just inject the sample directly into the machine versus if you have to go through the process of taking a dried stain, swabbing it, extracting that, diluting it, all of that? Why is there a difference?
JANINE ARVIZU: The difference is really because there are so many other complicating factors associated with taking a real world sample and getting it to the point where it's clean and pristine enough to be able to inject it into an instrument.
In the case of a bloodstain, that sample is on a surface, it has to be removed from that surface. So it's swabbed. There may be interferences from the swab. They may not completely recover the stain.
Then they try to extract the blood sample off of the swab. Extractions, generally, are not completely efficient. In some of the reference material in this case, some work done some years ago, extraction efficiencies were typically 90 percent or so, on a first run. It was quite common, if you do multiple extractions, to extract more DNA so -- or more EDTA.
So in each -- in each step of the process, you will lose a little bit. There's issues that arise. And so, by the time you get to the instrument, your effective method detection limit is much higher.
MR. BUTING: Is it possible to determine what the effective method limitation is, in this case, from the materials you reviewed?
JANINE ARVIZU: No, it is not.
MR. BUTING: Do you have an opinion whether it is the actual effective method limit of this -- this test, to be able to detect EDTA in a bloodstain, is higher than 13 parts per million?
JANINE ARVIZU: Yes, I do, and I believe that it is.
MR. BUTING: Can you quantitate how much higher?
JANINE ARVIZU: Unfortunately, that's -- that's a study that's best done empirically, by actually doing analytical work. Method detection limits are best determined using actual analytical work. I can infer some information from the data that were obtained in this case, but I can't just compute one from the data that are available.
MR. BUTING: And looking at the data that is available in this stack, the validation tests that were done, and those sorts of things, is there any indication that the FBI ever found out what the actual detection limit, or method detection limit, would be for this kind of a test?
JANINE ARVIZU: No, there's no such indication in these data.
MR. BUTING: Okay. Well, what does that tell you about the use of this kind of a protocol?
JANINE ARVIZU: This kind of protocol, there's basically two things that can happen when you run this kind of a method; either you detect EDTA or you don't. From an analytical perspective, the results either say, yes, we detected EDTA, or, no, we did not.
This report makes it seem like those two outcomes only can arise from two conditions. And it makes it seem like if the answer is, yes, we detected EDTA in a bloodstain sample, then it kind of makes it seem like, then that means it must have come from a tube of EDTA preserved blood.
There is -- There was reference to the fact that the control samples that they took from the car were blank, so that's probably the more likely interpretation.
The problems really come if the results from testing are, no, there is no EDTA present in those samples. Nothing there. We didn't see anything.
The problem is, you just don't know whether EDTA -- you didn't detect EDTA because there was none there, or because your detection limit wasn't low enough to see it, even if it had been there. That's really the problem.
So just because EDTA is not detected by the laboratory, doesn't mean that -- that that blood sample came from somebody actively bleeding onto that spot. It still means, that if your detection limit is out of sync with the samples in question, there could be EDTA in those samples from that blood tube, you just didn't see it.
MR. BUTING: All right. Now, the next sentence in his report, Dr. LeBeau's report, talks about, that EDTA is also detectable when a 1 microliter drop of EDTA preserved blood is analyzed. As you reviewed the data in that four or five inch package there, would you agree or disagree with that statement?
JANINE ARVIZU: I disagree with that statement.
MR. BUTING: And why is that?
JANINE ARVIZU: Because in the results reported by the laboratory, if this statement says, I tested a 1 microliter drop of blood from a purple-topped tube, from an EDTA tube, and I detected it, the problem is -- and that was done in this case -- the problem is, they ran a 2 microliter drop of EDTA preserved blood on a spot, a more real-world kind of application, and they did not detect EDTA in this lab.
Now, gosh, that might sound a little bit counterintuitive, what do you mean they could detect 1 microliter, but they couldn't detect -- they detected EDTA in a 1 microliter sample, but they didn't detect EDTA in a 2 microliter sample.
If, in fact, the detection limit used by this laboratory was down around that level, that's -- I just have to tell you, that's not an unexpected result. Sometimes you see it and sometimes you don't, if an element -- If a compound is present near it's detection limit.
In fact, that's, essentially, the definition of a detection limit. It means that if it's present at that concentration, sometimes you'll see it and sometimes you won't.
So to state that he -- that the lab is -- that EDTA is detectable when a 1 microliter drop of preserved blood is analyzed, is really not a true statement, even as evidenced by his own results, because he didn't detect it in a 2 microliter sample of blood.
MR. BUTING: Could you maybe find the --
JANINE ARVIZU: I will try.
MR. BUTING: -- the information that's in there that you are referring to? And I'm going to take just a few moments to show that on the ELMO. You -- Did you find it already?
JANINE ARVIZU: Yes.
MR. BUTING: Okay. I have a copy, let me just see if I can work from my copy while you have that, or else you can use my copy?
JANINE ARVIZU: There's only two pages, which one do you want?
MR. BUTING: Okay. Why don't you use mine and I will use the actual exhibit on the ELMO.
JANINE ARVIZU: Okay.
MR. BUTING: I'm going to start and just put this first -- first page of this stapled packet together.
MR. BUTING: Do you have that?
JANINE ARVIZU: Yes.
MR. BUTING: At the top it says the date of 2/16/07, 12:03:08?
JANINE ARVIZU: Yes.
MR. BUTING: Okay. What is this?
JANINE ARVIZU: This is, essentially, a set of data that came off the LC/MS instrument from running the entire batch of case samples in this case. So it includes all the question samples, all the known samples, and all the control samples that were run by the laboratory in sequence, in time sequence, so you can sort of reconstruct what happened to -- which samples were run through the instrument plan. And, boy, you will never be able to read that on top.
MR. BUTING: I can zoom in, when we need to, believe me. And so is this kind of -- these kinds of reports are -- what do you call these, spectrographs, mass specs?
JANINE ARVIZU: Yeah, it's chromatograms and spectra.
MR. BUTING: Are these the kinds of things that you see in your review of lab data?
JANINE ARVIZU: On a regular basis.
MR. BUTING: Okay.
MR. GAHN: I'm sorry, could we have this marked as an exhibit so we know what we are talking about?
MR. BUTING: I think it is. It's part --
JANINE ARVIZU: This is part of this big package, if you -- this big one that is called Exhibit 446.
MR. GAHN: I understand that, but I would like that -- this exact page, so we know what pages you are talking about.
JANINE ARVIZU: Sorry.
MR. BUTING: Would you like to do that, your Honor.
THE COURT: Is the page numbered in any fashion?
MR. BUTING: No, there are no numbers.
JANINE ARVIZU: Unfortunately, no.
THE COURT: All right. Then let's label it as a specific exhibit.
MR. BUTING: Okay. What I would like to do, there's a stapled set, just mark them altogether and then we'll talk about pages in there.
JANINE ARVIZU: This includes all the samples that were run between 12:03 and 5:40 on February the 16th, in time sequence order.
(Exhibit No. 500 marked for identification.)
MR. BUTING: All right. We finally made it to 500. Exhibit 500, can you tell us what that is?
JANINE ARVIZU: Yes, this is a dataset that represents all the results from running the case samples in this case. They were run on February 16th. And they started at 12:03 and ran through 5:51. And each of these takes about 11 minutes to run, so the time dates on each of them are about 11 minutes apart.
MR. BUTING: Are these run, you know, sort of automatically, or robotically, or do you need to have a lab person there to do this?
JANINE ARVIZU: It's absolutely standard practice throughout the industry, that these types of instruments -- it's called "rack and run". You set up your samples, you extract your samples, you load the tubes into a little auto sampler set in certain labeled positions. Then you let the instrument automatically, or robotically, sample them; typically, at night, while you are at home sleeping, the instrument's in the lab working.
MR. BUTING: Okay. And then when you come in the morning, does it print out something like this for you?
JANINE ARVIZU: Yes.
MR. BUTING: And these are, then, the reports that the analyst would review to determine if -- if it seems like the test ran properly, or didn't, and what the results are?
JANINE ARVIZU: Exactly.
MR. BUTING: Okay. All right. Now, the first page of these -- I'm not going to bore everybody too much here with great detail, but at the top, just so people understand, on the upper left, there's a staple sort of blocking it, but it's like a -- it looks like a computer path, right?
JANINE ARVIZU: Yeah, it's the identification of the file. The instrument's collecting all these data, electronically, and that's just the file where it's storing that data for the analyst to come in and look at it the next day.
MR. BUTING: So, for instance, where this says cali -- Xcalibur data/Brewer, Brewer being -- would be, in this case, the analyst?
JANINE ARVIZU: Yes.
MR. BUTING: Okay. And as you go over towards the center, then, it has the 2/16/07, that's the date and the time?
JANINE ARVIZU: Yes, that's the date and time stamp for the time the data was acquired by the instrument.
MR. BUTING: All right. And then over on the right, at the top, what is that referring to?
JANINE ARVIZU: That's a description of the sample --
MR. BUTING: All right.
JANINE ARVIZU: -- that's entered by the analyst, at the time they are preparing this set to run.
MR. BUTING: Okay. And so in each of these -- or each of these pages that I'm going to flip through, do they - is it one page per sample, typically, or can you determine that by what's up at the top?
JANINE ARVIZU: You have to determine that by what's at top. Often -- Well, sometimes they can zoom in so there will be more than one page. So I can't give you --
MR. BUTING: Okay.
JANINE ARVIZU: -- a direct answer.
MR. BUTING: Very good. So this first one is a blank negative blood, and that would be -- that's one of the controls you mentioned?
JANINE ARVIZU: Mm-hmm.
MR. BUTING: You have to say yes or no?
JANINE ARVIZU: Yeah, that's a quality control sample.
MR. BUTING: All right. The next one is negative control?
JANINE ARVIZU: Yes.
MR. BUTING: And then another blank?
JANINE ARVIZU: Two more blanks.
MR. BUTING: Two more blanks. Okay. And, then, K-2 extract, what does that mean?
JANINE ARVIZU: That's one of the samples in this case identified as K-2. And this is analysis of an extract that was prepared from K-2, from the K-2 swab.
MR. BUTING: Okay.
JANINE ARVIZU: So this isn't a case where they are actually taking a liquid sample an injecting it to the instrument, because those blanks were, in fact, just liquid samples. This is a case where they took a solid sample on K-2 and had to do the extraction before they injected it into the instrument.
MR. BUTING: All right. And from your review of the materials, do you know what K-2 refers to, in general?
JANINE ARVIZU: I could look it up. Under report, it's simply identified as two control swabs, Item 9802. There's another record in here that describes where it was taken from, I don't remember right off the top of my head.
MR. BUTING: Okay. The next page is another blank?
JANINE ARVIZU: Yup.
MR. BUTING: Two blanks, actually?
JANINE ARVIZU: Yeah, there's always two blanks in between each evidentiary sample.
MR. BUTING: Okay. And is that done in part to get rid of the possibility of effective carryover?
JANINE ARVIZU: It's done to both get rid of the effects of carryover and to be able to identify it in the event that it's happening.
MR. BUTING: All right.
JANINE ARVIZU: It's a very good quality control practice.
MR. BUTING: And, by the way, let me just go back for a minute, at the bottom, turn to the very first page, at the bottom of each page there's some handwriting; what does that refer to?
JANINE ARVIZU: That's the initials of the responsible analyst who essentially made the call. On each and every sample, a qualified analyst is responsible for deciding, well, is EDTA there, or isn't it; is it detected, or positive, or is it not detected.
So -- And by signing it and making that entry on each page, that's acknowledgment that that individual has made that call. So in this particular case, the little -- just looks like a sort of scribbled M's or something, that's the initials of the analyst who made the call, ND, or not detected, for this particular sample.
MR. BUTING: Okay. And since this is a blank, you would expect it to be not detected?
JANINE ARVIZU: You would hope so.
MR. BUTING: However, there is a line on it, with a number, 223, at the top. Is this -- What does this indicate?
JANINE ARVIZU: It indicates that blanks are not necessarily always completely blank. But that particular peak is not an indication that it's EDTA that is present, so it doesn't create a problem for us.
MR. BUTING: Okay. So it's something, but it's not -- it's not EDTA?
JANINE ARVIZU: That's correct.
MR. BUTING: Okay. Move back ahead to where we were at Q-46 extract?
JANINE ARVIZU: Yes.
MR. BUTING: Okay. And this one he -- is there a call at the bottom of that?
JANINE ARVIZU: Yes, not detected.
MR. BUTING: Okay. And then there's two more blanks, right?
JANINE ARVIZU: Yes.
MR. BUTING: And the next is a K-3 extract?
JANINE ARVIZU: Yes, not detected.
MR. BUTING: Okay. And then two more blanks?
JANINE ARVIZU: Yes.
MR. BUTING: The second blank. Now, this one is a little bit different, there's the 223 showing up, but there's also a 293 showing up; what does that tell you, if anything?
JANINE ARVIZU: Again, it tells you that that particular item was detected, but that does not meet the criteria for calling it EDTA, so it's something, but it's not EDTA.
MR. BUTING: Okay. And so the conclusion of EDTA is, again, another ND, not detected?
JANINE ARVIZU: That's correct.
MR. BUTING: Okay.
JANINE ARVIZU: They are really only looking for EDTA here. If there's other things present, there's no attempt, and, in fact, the method doesn't even allow for identifying what the other things were.
MR. BUTING: Okay. The next page, then, is Q-47 extract?
JANINE ARVIZU: Yes.
MR. BUTING: And you understand that to be one of the question samples?
JANINE ARVIZU: That's correct. It's a swab; it's a swab extract.
MR. BUTING: And could you understand that the -- the swab stains reportedly taken from the RAV4 were designated Q-46, Q-47, and Q-48?
JANINE ARVIZU: That's correct.
MR. BUTING: Okay. And this one is called, also, ND?
JANINE ARVIZU: Yes.
MR. BUTING: Okay. There is, again, 275 detected, but that's not a concern as far as EDTA goes, there's something else?
JANINE ARVIZU: That's correct.
MR. BUTING: All right. Bear with me, two more blanks, K-4 extract.
JANINE ARVIZU: Not detected.
MR. BUTING: Not detected, even though there is, again, something there that's 208, correct?
JANINE ARVIZU: Correct.
MR. BUTING: Two pages further, again, another blank, not detected, but once again there are things showing up, it's just not the ion --
JANINE ARVIZU: They don't meet the rules for calling it an EDTA.
MR. BUTING: Okay. And then Q-48 extract, not detected, as well, right?
JANINE ARVIZU: Right.
MR. BUTING: Okay. Two more blanks. Now, lets talk about this for just a moment. You get to the page, it says Positive Control A (MAL EDTA extract). As you review the data, what does this tell you, or what is -- what is this made of?
JANINE ARVIZU: Well, from the data, from the record, it's not really possible to tell. But my understanding is that this is a sample prepared by Mark LeBeau. MAL represents his initials and that he volunteered his blood sample for this particular sample. And created -- created a purple-topped tube, did an extract, and then determined that he was able to actually detect EDTA in this sample of his blood.
MR. BUTING: Now, is that -- would that be considered a proper positive control, in your opinion?
JANINE ARVIZU: No, it is not.
MR. BUTING: And why not?
JANINE ARVIZU: Control samples, there's rules, essentially, for control samples. Control samples are of known origin and purity. They have been tested to determine their actual composition. And then there's typically a certificate of analysis that tells you, we have analyzed it and we note, with this degree of confidence, that this is exactly what's in this sample.
He, essentially, just took a sample out of the production line, his own, introduced it, and called it a positive control. So it's not, it doesn't really conform to sort of the -- the quality standard for what a positive control is.
MR. BUTING: So when you say a certified known quantity, but here, this is a control in order -- he is using this as a control to -- just to find EDTA; is that right?
JANINE ARVIZU: Yes, to see whether he can detect EDTA during the course of this run.
MR. BUTING: So what would be a proper positive control for that?
JANINE ARVIZU: If they had a whole blood standard, and there are supply houses that sell those kind of whole blood standards, that had a known quantity of EDTA present in it.
MR. BUTING: So there are commercial labs that sell certified specific --
JANINE ARVIZU: Yes.
MR. BUTING: -- things like this?
JANINE ARVIZU: Yes.
MR. BUTING: And those are intended to be used as a positive control?
JANINE ARVIZU: That's correct. Those are reference materials intended for that use.
MR. BUTING: Well, why would this be any different, if he puts it in a purple-topped tube?
JANINE ARVIZU: Because he doesn't know how much EDTA is in that purple-topped tube.
MR. BUTING: Okay.
JANINE ARVIZU: So the fact that he detected it means it was there, but how significant is that? Was that -- was that a very concentrated sample or a very diluted one; he doesn't really know.
MR. BUTING: Do -- Does the quantity of EDTA that one finds in these commercially prepared purple-topped tubes vary?
JANINE ARVIZU: Yes.
MR. BUTING: By how much, typically?
JANINE ARVIZU: I don't know. I wasn't able to find any very specific actual lab data reporting that. But in the FBI Lab's own protocols, they describe it as ranging typically from a thousand parts per million to two thousand parts per million. So it's a fairly broad range.
MR. BUTING: Okay. Now, at the bottom of this, there's some handwriting as well. What does this appear to be, or what does this tell you?
JANINE ARVIZU: Actually, this is an indication that, apparently, this person whose initials look like some kind of an M, went through and initially called this as a not detect. Because you have seen this quite a few times already this morning, the initials and then ND circled, but then subsequently the analyst went back and decided, you know what, I think this really meets the criteria for being able to call it EDTA, so they changed their mind, lined out the not detected and indicated that it was positive. And that's why there's a second M up there, they indicated when they made that decision to change that call.
MR. BUTING: Okay. And this is even on a sample of Mr. LeBeau's own blood?
JANINE ARVIZU: Yes. This is the sample of an extract prepared from Mr. LeBeau's own blood.
MR. BUTING: Okay. And, then, keep looking -- bear with me again -- another couple of pages of blanks. And then we get to something called Positive Control B, Q-49 extract; what is this?
JANINE ARVIZU: I have to interpret this based on the information you see there. They are calling this a positive control, a second positive control, in this run. However, it's an extract of Q-48, which --
MR. BUTING: Q-49?
JANINE ARVIZU: Q-49, excuse me, which tells me it's a question sample, it actually is an extract of Q-49, which is the liquid blood sample from Mr. Avery. Why they are calling it a positive control, truly is a puzzle to me. That is not what a positive control is. This is a question sample. It's a case sample. It's an unknown sample, as far as this laboratory is concerned.
MR. BUTING: Okay. And in this particular one there is an indication of positive?
JANINE ARVIZU: Yes.
MR. BUTING: Okay. The next page, what's this? It has the same heading or the same --
JANINE ARVIZU: Same sample description, same date and time. These -- This is a different display of the same electronic file. So all they are doing is going in and zooming in on part of the spectrum from the previous page that -- in order to try to decide and confirm the assignment. It's a normal kind of a practice.
MR. BUTING: And so this reference up here, zoom?
JANINE ARVIZU: Yeah, parenthetically, the analyst went in there and noted that this is simply a zoom of that same file.
MR. BUTING: So this is a zoom page of the very same page right before it?
JANINE ARVIZU: That's correct.
MR. BUTING: All right. Two more blanks, and now we come to something called Spot LOD, 1 microliter?
JANINE ARVIZU: Yes.
MR. BUTING: This has -- This is also called a positive?
JANINE ARVIZU: This sample is called positive, yes.
MR. BUTING: Okay. And the three ions that they seem to be looking for through all these tests are a 160, a 247, and a 132, and certain ratio to each other, right?
JANINE ARVIZU: I -- You know what, I would have to look those up, because I haven't been that familiar with it, but there are certain characteristic ions that are EDTA and it's not just the presence of those ions, but the relative ratios of those ions that matters to the interpretation.
MR. BUTING: Well, let's just go back for a second to Mr -- Mr. LeBeau's own blood and see the ions that are reported here that are showing up as detected, the one that he had crossed out and then put positive, just a couple pages back?
JANINE ARVIZU: I must have missed it. Oh, okay.
MR. BUTING: Okay. And what are the ions that are being reported by the instrument in this?
JANINE ARVIZU: There are -- There are three ions that are reported, 132, 160, 247, 293. There's actually four that are present in this sample.
MR. BUTING: And 160 is the one that's always expressed at the -- the highest is always up at the top?
JANINE ARVIZU: Yeah, this -- if you look at that scale there, it goes from 0 to 100, on the left, no matter how much of the compound is present, it always sets that at 100 percent. That's essentially a percentage. And the highest peak is always set at 100 percent and everything else is measured in relation to that highest peak. Whether it's one inch tall or a foot tall, the highest peak is set at 100 percent.
MR. BUTING: And does that mean -- does that have any indication about the quantity of the -- of the --
MR. BUTING: -- of the substance that they found?
JANINE ARVIZU: No, it's simply that the most abundant peak that we saw, the ion that was there with the highest frequency, the most abundance, is set at 100. It doesn't relate to the quantity at all.
MR. BUTING: Okay. If we could flip back to where we were, at the Spot LOD, 1 microliter, a few pages later.
JANINE ARVIZU: Okay.
MR. BUTING: Start at 5:07:38 seconds?
JANINE ARVIZU: Mm-hmm.
MR. BUTING: Okay. This one is marked as a positive, right?
JANINE ARVIZU: Yes.
MR. BUTING: Do you see any -- or what ions do you see expressed in this?
JANINE ARVIZU: It has three of the four that you saw in the previous sample; it has 160, 247, and 293.
MR. BUTING: All right. Now, what's the very next page?
JANINE ARVIZU: A blank.
MR. BUTING: No, before that, the zoom?
JANINE ARVIZU: Oh, okay, sorry, I was looking at the zoom page.
MR. BUTING: Oh, you were, okay.
JANINE ARVIZU: Yeah. The first page has those three ions, the second page, just like the previous example, is a zoom of the same result.
MR. BUTING: And even though it's a zoom, is there any -- there's still not a 132 ion showing, right?
JANINE ARVIZU: That's correct.
MR. BUTING: But it's marked as a positive?
JANINE ARVIZU: That's correct.
MR. BUTING: Okay. We're almost done, two more blanks. And now we come to the second to the last page of this exhibit. This is February 16, 5:40 at 13 seconds, right?
JANINE ARVIZU: Yes.
MR. BUTING: It says Spot LOD, 2 microliters, at Q-49. By the way, just so we're clear, what does this tell you, the way it's designated as Spot LOD?
JANINE ARVIZU: It appears that the laboratory is trying to decide a detection limit for a sample of blood that's collected from the Q-49 file, that they are actually trying to use the purple-topped tube that was submitted in this case, and trying to see whether or not I can see 1 -- I can see EDTA in a 1 microliter sample and whether or not I could see EDTA in a 2 microliter sample. So they're actually trying to empirically determine whether they can even see EDTA when they know that it's a sample from Mr. Avery's tube of blood.
MR. BUTING: And does this relate, then, to the sentence, the remark in Mr. LeBeau's report, that, specifically, EDTA is detectable when a 1 microliter drop is analyzed?
JANINE ARVIZU: Yes. This is 2 microliters that's displaying on the screen right now, but I would conclude, from his report, that he is referring to when he ran a 1 microliter sample, he detected and identified EDTA. And so that's the source of his statement in the report.
MR. BUTING: That's the one we saw that shows three of the four ions, but is missing one of them?
JANINE ARVIZU: Yes.
MR. BUTING: Now this one, though, what's marked at the bottom of this page? Is there any call made on this page?
JANINE ARVIZU: Yeah, this is the 2 microliter sample, so they are taking --
MR. BUTING: A bigger sample.
JANINE ARVIZU: -- a tube of Mr. Avery's blood, and instead of just extracting a 1 microliter stain, they are taking a 2 microliter sample of his blood and taking it through the process. In this case, when they ran it through their process, they did not detect EDTA. This is a sample that they took from Mr. Avery's purple-topped tube, 2 microliters, they did not detect EDTA.
MR. BUTING: Well, on this particular page, his initials are there, but he doesn't appear to be making a call?
JANINE ARVIZU: Yeah, I can infer from that that as he was going through these results, when he got -- he expected, probably, to see EDTA, because he had seen it in the 1 microliter sample. And when he got here, he probably said, oh, this doesn't meet the criteria. This isn't passing. What's going on. So if you go to the next page, he zoomed in --
MR. BUTING: I will in just one second, but this one does show a 133 ion, a 160, and where are we?
JANINE ARVIZU: You're making me dizzy.
MR. BUTING: I'm sorry. And a 247, which are three of the ones you were looking at before. Why wouldn't this -- Why isn't he making a call that it's present in this instance?
JANINE ARVIZU: I can only infer that, because he doesn't indicate that in any of his records, the basis for whether he made a call or not. However, this does not conform to the FBI Laboratory's own rules for making a call, because I got a copy of their procedure for mass spectral interpretation. And this has an ion ratio problem. You may recall that the 160 is usually the biggest peak that relates to very characteristic ion.
MR. BUTING: Right.
JANINE ARVIZU: In this sample, 160 is not the biggest peak, that -- this 293 is the --
MR. BUTING: Over here.
JANINE ARVIZU: -- is the large peak. Yeah.
MR. BUTING: Okay. So then --
JANINE ARVIZU: It flaunts their own ion ratio rules for making an assignment.
MR. BUTING: Okay. So then what does he do then; what's the very last page?
JANINE ARVIZU: On the very last page, he zoomed in to see if there was any more information he could elicit from doing a more detailed analysis.
MR. BUTING: And how can you tell this is a zoom of the very same results, other than obviously he's got it written there?
JANINE ARVIZU: Again, it's because it's the same date and time. So it's just processing exactly the same electronic file, looking at the same data, just zooming in on it.
MR. BUTING: Okay.
JANINE ARVIZU: Much like we can do when we zoom in on things on a computer.
MR. BUTING: And when he zooms in, does he get the same -- have the same issue, same problem?
JANINE ARVIZU: Yes.
MR. BUTING: Once again, 160 is not at the right ratio; so then what does he call?
JANINE ARVIZU: So he makes a call on this sample, this 2 microliter sample, as not detecting any EDTA.
MR. BUTING: All right. I'm -- Just so we're clear, there's one last page, and it's a blank?
JANINE ARVIZU: That's correct.
MR. BUTING: All right. So, in his report, then, when he says that EDTA is also detectable as low as a 1 microliter drop, his own data, does it support that at all?
JANINE ARVIZU: The problem is, he has data that indicates he can not detect EDTA in a 2 microliter drop. That kind of a result is entirely consistent with the fact that his method has a hard time detecting it at the concentrations in question here.
It's an overstatement, if you will, to say it can be -- to say -- I want to get the exact words -- to say that it's detectable when a 1 microliter drop of EDTA preserved blood is analyzed. That's an overstatement, because his own data shows that he can't detect it in a 2 microliter spot.
MR. BUTING: All right. Now, his data did -- or he does express the opinion that EDTA was detected in Q-49, the tube of Mr. Avery's blood, 11 year old tube, right?
JANINE ARVIZU: Yes.
MR. BUTING: Is there any data that quantitates how much that EDTA is there?
JANINE ARVIZU: None.
MR. BUTING: You mentioned before that, you know, a new, pristine, brand new blood tube sample, according to his own protocol, would be between a thousand and 2,000 parts per million, EDTA concentration, right?
JANINE ARVIZU: Correct.
MR. BUTING: Is there any way to tell whether or not, after 11 years, the EDTA that would have been in Mr. Avery's purple-topped tube is -- has degraded down to even a barely detectable limit?
JANINE ARVIZU: There certainly -- If they quantitated how much EDTA was present; they did not do that. They simply identified the fact that EDTA was present in Mr. Avery's blood sample. They made no attempt to say how much EDTA was present. Obviously, I don't know how much was present 11 year ago, but they could have looked in the sample now to see how much was present in his blood today. But their method was not designed to do that and was never validated to do that.
MR. BUTING: So when they find a positive result for EDTA in that Q-49 tube of Mr. Avery's blood, it could be a thousand parts per million or 50 parts per million?
JANINE ARVIZU: We just have no way of knowing, no way at all of knowing.
MR. BUTING: And is EDTA the kind of chemical that will degrade over time?
JANINE ARVIZU: It's like any other chemical, it's dependent on the conditions that it's exposed to in a length of time. Chemicals, in general, are subject to degradation from things like light and temperature and biological activity.
I have not -- I don't know what the degradation curve is for EDTA, but in analytical chemistry, we put shelf lives on materials. And the manufacturers who certify their reference materials and who certify their results, know how long that material is stable in that environment. So they assign a shelf life, much like the FBI did in their procedure. Their procedure for analysis of EDTA in bloodstains has requirements for preparation of EDTA solutions, and they impose a shelf life on them.
Say that their EDTA performance mix that has EDTA in water is stable for a period of at least six months, what that means is, when you get past six months they can't use it any more. It's just like when milk is a week past it's expiration date, you shouldn't be drinking it.
MR. BUTING: And that's their own protocol imposes a six month limit on a solution that they mix up of known EDTA, right?
JANINE ARVIZU: Yes.
MR. BUTING: Commercially purchased.
JANINE ARVIZU: Yes, of reagent grade EDTA, that's of known purity and we actually know its chemical composition.
MR. BUTING: All right. If you would step over here, please, we have had some problems today and yesterday with Mr. Strang's computer being able to project.
THE COURT: Mr. Buting, can I ask how long you think your direct is going to continue yet.
MR. BUTING: Just one moment. Not much more; we could probably finish in about five minutes I would think.
THE COURT: All right. You can have five minutes, go ahead.
MR. BUTING: Okay.
MR. BUTING: (By Attorney Buting)~ For some reason -- This is the videotape that we showed the jury a couple of days ago, and for some reason I'm not able to get it up there, but it is on the computer screen here. Do you see anything that looks like an expiration date on this particular tube?
JANINE ARVIZU: Yes.
MR. BUTING: Okay. You can retake your seat. And tell the jury what you see as an expiration date on this 11 year old tube of blood, Q-49, that is Mr. Avery's blood that was found in the Clerk's Office.
JANINE ARVIZU: These tubes are routinely manufactured and provided by their manufacturer with expiration dates. In this case, it's March of '96.
MR. BUTING: So when Mr. LeBeau tested this tube for the presence of EDTA in February of 2007, he was testing it approximately -- almost 11 years beyond its expiration date?
JANINE ARVIZU: That's correct.
MR. BUTING: All right. Having reviewed all of this data, then -- By the way, were you able to see Mr. LeBeau's testimony, recorded?
JANINE ARVIZU: Yes, the online streaming video, I was able to see it there.
MR. BUTING: Okay. And did you see the PowerPoint presentation where he talked about his thought process or the hypothesis he was considering?
JANINE ARVIZU: Yes.
MR. BUTING: And he mentioned only two, do you recall that?
JANINE ARVIZU: Yes.
MR. BUTING: Could you talk about that for a moment, what you think about that?
JANINE ARVIZU: Yeah, he, essentially, says that, when I get results -- when I get results from the laboratory, it either shows that EDTA is detected or not detected. Those are the only two options.
I agree that those are the only two options that can come out of his protocol. It's either detected or it's not.
But then he draws the conclusion that in the event that it's not detected, which is the case here, in these stain samples, in the event that EDTA is not detected in the stain samples, he draws the conclusion that that means it must have come from active bleeding, rather than from Mr. Avery's tube. That's just simply not supported by the actual laboratory results in this case.
MR. BUTING: And why not, is there some other conclusion?
JANINE ARVIZU: Yes, it certainly is quite plausible that the bloodstains that were swabbed from the RAV4 contained EDTA, but the lab simply was not able to detect it, as was the case in that 2 microliter sample of Mr. Avery's blood that they attempted to test and were not able to detect EDTA.
MR. BUTING: And, for the record, we have finally been able to display the still, frozen part of the video of the -- I don't know the exhibit number -- 1 -- 470, where the container contain -- the tube of blood was opened at the Clerk's Office. And do you have a laser pointer available? No, no laser pointer here today?
MR. KRATZ: Oh, I have one.
MR. BUTING: Oh, you do. Can I borrow it, please?
MR. KRATZ: Sure, let me help you out.
MR. BUTING: There you go. Thank you.
MR. BUTING: (By Attorney Buting)~ Could you point with the laser to what you were referring to when you were talking about expiration date.
JANINE ARVIZU: Okay. It's upside down here, so you have to see that it's upside down. It's right here, it says EXP March '96.
MR. BUTING: So from this data -- Well, let me just make it clear for the jury, first of all. Were you able to actually test any of these samples in this case?
MR. BUTING: All right. And when did you receive the materials that you have in front of you?
JANINE ARVIZU: Late on Tuesday, this week.
MR. BUTING: Okay. But it refers to tests that were done just last week on March -- or February 26?
JANINE ARVIZU: This is probably the fastest turn on any data I have ever reviewed.
MR. BUTING: What would be a more typical length of time for one to do a -- develop a brand new protocol and validate it and do all that?
JANINE ARVIZU: Development, validation, performance of the testing of unknown samples, is usually -- you know, there's no set rules, but it's usually something that takes considerably longer than the very aggressive time frame in this case. In this case, they were actually running the case samples before they even had the results of their competency sample, so it was very, very compressed.
MR. BUTING: And, so, from this data, can you express any opinion about whether the 3, as Q-46, 47, and 48, questioned stains examined by Mr. LeBeau, could have come from the blood sample, the blood tube, Q-49, that was also examined?
JANINE ARVIZU: It's quite consistent with the results that were presented by the laboratory. Because of their inability to detect EDTA in the 2 microliter sample of Mr. Avery's blood, it's quite possible that those blood swabs could have come from Mr. Avery's blood tube, but simply not been detectable by the laboratory.
MR. BUTING: And what about the three swabs from the RAV that were not tested by Mr. LeBeau; can any conclusion be drawn on that?
JANINE ARVIZU: I'm an analytical chemist, I'm not in the business of just guessing on some samples. We have to test samples to decide what's in them.
MR. BUTING: Is there any kind of a -- We were talking about a limit of detection, and, you know, what the method can detect. And a lot of this is technical stuff for us lay people. Is there any kind of analogy that you can draw about, you know, some sort of instrument, or some sort of detection limit that we have?
JANINE ARVIZU: You gave me the entree. This -- We have pretty good detection limits. Our noses are able to smell things. People are -- have different sensitivities to different smells. And that means we have different instrument detection limits, if you will.
Some of us can detect things that are present at very, very low levels. And some of us require that more of it be present before we can detect it. So our nose is analogous to an instrument, in terms of its ability to detect a smell.
MR. BUTING: So if one was blindfolded and given a -- say a warm apple pie or something, and asked, can you smell an apple pie, is that an example of your nose being able to detect something?
JANINE ARVIZU: Yeah. Yeah. And although I suspect that most of us who at least have well-functioning noses could detect a warm apple pie if there were no complications, if that apple pie was present in a room with a lot of other smells, or the doors and the windows were open and there was a brisk wind blowing through, you might not be able to detect it. Doesn't mean that the apple pie is not there, doesn't mean it's not giving off odor, it just means you can't detect it. So that's the difference between an instrument detection limit and a method detection limit.
MR. BUTING: All right. And, finally, as a matter of scientific adequacy, can the protocol that Mr. LeBeau developed, I think it's 434, be used to rule out the presence of EDTA in those three RAV4 bloodstains that were tested, just because it's not detected in their tests?
MR. BUTING: And why not?
JANINE ARVIZU: Because we just don't know what the method detection limit of his method was, as evidenced by the fact that he couldn't detect a 2 microliter sample of Mr. Avery's blood -- he couldn't detect EDTA in a 2 microliter sample of Mr. Avery's blood.
MR. BUTING: So even having gone through this test, is it possible that EDTA is, or was, in those 3 RAV4 stains?
JANINE ARVIZU: Yes.
MR. BUTING: Thank you.
THE COURT: All right. At this time we'll take our morning break. We'll resume in 15 minutes. Members of the jury, I will remind you, again, not to discuss this case, this morning's testimony, or any other element about the case during the break.
(Jury not present.)
THE COURT: All right. Counsel, we'll return in 15 minutes.
MR. BUTING: All right.
(Recess taken.)
(Jury Present.)
THE COURT: Mr. Gahn, will you be doing the cross-examination for the State?
THE COURT: You may begin.
JANINE ARVIZU: Good morning.
CROSS-EXAMINATION BY ATTORNEY GAHN:
MR. GAHN: I would first like to explore a little more, I looked over your resumé, and a little more of your experience, actual hands-on-experience with the LC/MS/MS technology?
JANINE ARVIZU: I have operated liquid chromatographs and mass spectrometers. I have not operated them configured, essentially connected together in the manner in which they were in this case.
MR. GAHN: Okay. And -- And could you just describe the difference in the way they were connected together in this case and what you are familiar with.
JANINE ARVIZU: I'm not sure I understand your question. The physical difference between how they are interfaced or?
MR. GAHN: No, if you, yourself, have not performed analysis, on chemicals, using the LC/MS/MS technique?
JANINE ARVIZU: That's correct.
MR. GAHN: Have you ever conducted any type of analysis to detect blood EDTA levels in a lavender-topped tube?
MR. GAHN: You talked about blood collection tubes and -- in reference to the expiration date; what is your experience with blood collection tubes?
JANINE ARVIZU: Part of what I do when I assess data quality, if the sample was collected in any particular container, be it a blood collection tube or any other kind of container, part of what I'm doing is seeing whether that container was appropriate to protect the integrity of the sample, so that its composition was not altered or degraded over time to the extent possible by its interaction with the tube.
So whether it's in a quart jar, or a purple-topped tube, I'm looking at, did they know that that container was of appropriate cleanliness before the samples were put in, and that type of thing. And these things are typically purchased in lots. And they are certified for a particular lot. So that manufacturer has actually tested those samples, made sure that they met their specifications, and certify the lot.
If there's a problem, then they can go back and find out which lot caused the problem, just like they could find out which peanut butter had the problem and so forth. So it's a lot identification.
JANINE ARVIZU: My personal experience with how it works? Obviously, I have the same lay experience that everybody in the courtroom does with when I have had blood samples collected. My experience as a quality auditor is simply reconstructing the paper trail associated with the integrity of that sample.
MR. GAHN: Are you stating that the expiration date on that vacutainer applies to the stability of EDTA?
JANINE ARVIZU: No, sir.
JANINE ARVIZU: The expiration date is determined and assigned by the manufacturer. And it provides the user with a date beyond which they cannot certify the appropriateness of that tube for it's intended use; that is, protecting the integrity of that blood sample.
And that's a combination of all the things that go into that. It's the combination of maintaining the integrity of the vacuum, the EDTA. It's the package. They don't have separate expiration dates.
MR. GAHN: What can you point to that states that the expiration date on the purple-topped tube pertains to the stability of EDTA?
JANINE ARVIZU: Nothing. It does not do that.
MR. GAHN: All right. I just wanted to make that clear. The expiration date has to do with the efficiency of the vacuum in the tube; isn't that true?
JANINE ARVIZU: It's not just the vacuum; it's the entire package for its inappropriate use. They don't try to parcel out the parts.
JANINE ARVIZU: Oh, no, sir. No.
JANINE ARVIZU: Okay.
MR. GAHN: I just wanted to clear that up. Mr. Buting put up a number of exhibits that you looked at. And one of the things I noted was that you only looked at the results in what is concerned -- called the positive ion mode; is that correct?
JANINE ARVIZU: When he went through the page by page one?
JANINE ARVIZU: This is the one on the 16th -- You know, I'm not -- I don't remember if this was positive or negative; I would have to go back and look at the sequence.
JANINE ARVIZU: Okay. No, sir, I believe it's the negative ion mode. Is there some misunderstanding of which data we're actually talking about?
MR. GAHN: My understanding is that the data that Mr. Buting put up, for you to look at, was from the positive ion mode; isn't that correct? First of all, what is the positive ion mode?
JANINE ARVIZU: It's just the operating mode for the instrument, whether you are looking at positive ions or negative ions.
JANINE ARVIZU: In the course of the analysis, I believe you have probably already heard a brief introduction of this, a mixture is separated into its component pieces, or its component chemicals, with use of the chromatography instrument, used with the liquid chromatography.
And then as each set of chemicals comes out, or each package of chemicals comes out, is introduced in the mass spectrometer where it's frag -- it's subject to very high energy and it's fragmented. And when it breaks into pieces, the mass spectrometer then detects those characteristic fragments.
MR. GAHN: What I'm asking for is, in the positive ion mode, what form of EDTA are you looking at?
JANINE ARVIZU: Well, I'm -- I'm not -- What am I looking at? It's -- In this case --
MR. GAHN: In this case, what did the FBI's Laboratory protocol, what form of the EDTA did it look at in the positive ion mode?
JANINE ARVIZU: It's -- It's actually, analytically, the sample can contain EDTA in any number of forms. And so it can be present as a sodium salt. It can be present -- During the course of extraction, it's converted largely into -- During the course of extraction and interaction with the blood calcium in iron; is that what you are asking, whether it's the ion form or --
MR. GAHN: I guess what I'm looking for is whether it's -- what form and whether it's in its free acid form or in its comp -- metal or -- metal iron complex?
JANINE ARVIZU: We can look for both.
JANINE ARVIZU: Oh, sure.
MR. GAHN: Okay. And what I'm asking you is, what form did the FBI look for in the positive ion mode?
JANINE ARVIZU: Oh, I don't know. I would have to -- I believe it was the free acid, but I would have to look. If that's what --
JANINE ARVIZU: Okay.
JANINE ARVIZU: Okay.
JANINE ARVIZU: Okay.
MR. GAHN: And in the negative ion mode, is it fair to say they were looking for the forms of EDTA, not only in free acid form, but also in the metal iron complex?
JANINE ARVIZU: That's correct.
JANINE ARVIZU: That's correct.
JANINE ARVIZU: Okay.
MR. GAHN: The data that you looked at and you showed up on the big screen, wasn't that only from the positive ion mode; only -- in other words, only in its free acid form?
JANINE ARVIZU: Yes, you are targeting, specifically, the ions attributable to that -- from that one breakdown, yes.
JANINE ARVIZU: I don't remember, but there's some in the package, if that's your question.
MR. GAHN: That's my question. Did you display, or did Mr. Buting display, any of the data in the negative ion mode, which would be in the free acid and in the iron complex forms?
JANINE ARVIZU: I don't remember if he did.
JANINE ARVIZU: Okay.
JANINE ARVIZU: Yeah.
JANINE ARVIZU: Well, it's -- it's quite clear that -- I don't know what you mean, which data you are talking about, but it's quite clear that the method is capable of detecting EDTA and -- and its iron complex, as I would expect to be the case.
MR. GAHN: So the protocol that the FBI put together is capable of making an analysis for the presence of EDTA in a lavender-topped tube, correct?
JANINE ARVIZU: Yes, that's correct.
JANINE ARVIZU: Yes.
JANINE ARVIZU: Yes.
MR. GAHN: Now, did you read any articles or publications that had to do with the analysis of EDTA in dried bloodstains?
JANINE ARVIZU: Only those articles that were provided by the FBI Laboratory as part of their foundational reference material along with this case.
MR. GAHN: I'm going to ask that Mr. Fallon hand you two exhibits. And I would ask you to identify each of them for us, please.
JANINE ARVIZU: Yes, sir. Exhibit 436 is an article from the Journal of Analytical Toxicology, The Analysis of EDTA -- sorry, I'm going too fast -- in Dried Bloodstains by Electrospray LC-MS-MS and Ion Chromatography.
JANINE ARVIZU: Okay.
JANINE ARVIZU: Yes.
JANINE ARVIZU: This particular one is Analytical Toxicology.
MR. GAHN: And the Journal of Analytical Toxicology, is that a well recognized scientific publication?
JANINE ARVIZU: Yes, it is.
JANINE ARVIZU: Yes.
JANINE ARVIZU: Yes.
MR. GAHN: And that article also determined that it's possible to test for the presence of EDTA in dried bloodstains?
JANINE ARVIZU: That's correct.
MR. GAHN: And, also, the article, which would be the next exhibit, please, could you state where that was.
JANINE ARVIZU: That's an article from The Analytical Chemistry, Exhibit 437, dated August 1st, 1997.
JANINE ARVIZU: Analytical Chemistry is, yes.
JANINE ARVIZU: Yes.
JANINE ARVIZU: I presume so.
JANINE ARVIZU: This is a web version. I don't -- I don't know if this was one of the ones subject to the same peer review, but I would presume so.
MR. GAHN: And did you -- When you read the FBI protocol and compared it to those two articles, did you note any improvements that the FBI made in the development of the protocol that was used in this case?
JANINE ARVIZU: Yeah, I would presume that there were several things that they did that would have to be considered improvements against these early versions.
JANINE ARVIZU: Their extraction procedure is substantially different. One of these techniques uses capillary electrophoresis instead of liquid chromatography. They each have their own issues. They are using tandem mass spec, mass spec, mass spec, in the FBI's method. And the extraction procedures are substantially different. I would have to presume that those -- that they did those because they considered it to be an improvement.
MR. GAHN: Do you believe it was an improvement, by doing the analysis, looking for not only the free acid form and also the iron complex form of EDTA?
JANINE ARVIZU: That would be considered a benefit.
JANINE ARVIZU: Yeah.
MR. GAHN: And why would that be a benefit? Why would you want to look for it in the negative ion mode in both forms?
JANINE ARVIZU: Well, because it's a better -- essentially, if you will, a better recovery, better understanding the path that EDTA took in your samples.
MR. GAHN: So there were significant improvements made in this current protocol over the two articles that you --
JANINE ARVIZU: Oh, certainly, yes. Science isn't static, we hope to improve it all the time.
MR. GAHN: All right. Thank you. With that, significant improvements, I do note from your direct exam that you had a little problem with the -- I guess, what, the uncertainty of their measurement system, or their -- that -- their detection level?
JANINE ARVIZU: Detection limit -- method detection limit, that's correct.
JANINE ARVIZU: That's a very good question. A qualitative assay or qualitative measurement doesn't tell you how much of something is present; it simply detects it and identifies it. So, qualitatively, I can say that EDTA is present, but it says nothing about how much EDTA is present.
In contrast, a quantitative assay tells you how much of something is present. There is an entirely different calibration protocol to get to how much of a given compound is present.
JANINE ARVIZU: Absolutely.
JANINE ARVIZU: This is a purely qualitative method.
JANINE ARVIZU: Absolutely.
JANINE ARVIZU: The FBI's protocol?
JANINE ARVIZU: Yeah. Yes. Okay.
MR. GAHN: And on Page 7, under Paragraph 14, Limitations, No. 8, the Limit of Detection, is it -- it was your testimony that this was under a valid method for determining their limits of detection?
JANINE ARVIZU: It's not a universally used method, but it's an appropriate means of getting to an instrument detection limit.
MR. GAHN: And one that could be used in detecting the levels of EDTA, whether in a purple-topped tube or in a dried bloodstain?
JANINE ARVIZU: No, the method that they used, that they referred to in this paragraph, is simply a means of determining an instrument detection limit. So it's -- it detects how much -- it gives you an indication of how much EDTA you can detect from a solution that you actually take a syringe and inject into the instrument. It doesn't tell you anything about how much EDTA you can detect from a stain sample.
MR. GAHN: But this limitations in their protocol clearly state, and the data shows, that they are able to detect -- 1 microliter drop is readily detectable in this protocol?
JANINE ARVIZU: I don't believe that that's true.
MR. GAHN: So when they state that the 1 microliter drop was readily detectable using this technique, are you saying that's not true?
JANINE ARVIZU: That particular statement is in reference to this paragraph about a separate LOD study where some EDTA was placed into a lavender-topped tube. That's not what I'm referring to when I say they had problems detecting it in a 2 microliter spot. I'm referring to the actual case samples in this case, where they -- where they were not able to detect it from a 2 microliter set of blood, of Mr. Avery's blood, as opposed to this one, which is a more sort of theoretical, pristine case.
JANINE ARVIZU: Okay.
MR. GAHN: The system that they developed, the methodology that they developed, allows them to detect levels of EDTA to the 1 microliter level?
JANINE ARVIZU: Okay. The reason that's not a true statement, generally, is because we don't know how -- the concentration of EDTA that's present in that microliter. I don't know if there's 100 micrograms or 1 microgram present in that 1 microliter sample.
So saying it's possible to detect EDTA in 1 microliter of blood really, scientifically, doesn't mean much unless you also know the concentration of EDTA. In this case, they state that the 1 microliter drop that they prepared from -- from a whole blood sample and known EDTA, they knew the concentration of EDTA in that sample.
I was unable to find the data related to this particular experiment that they described. It wasn't in this package, as far as I could tell.
JANINE ARVIZU: It is absolutely important in a quantitative assay, but it's -- the reason it's important qualitatively is because when you say not detected, it's not detected at what level. Is it not detected at a very, very concentrated level, or is it not detected at a very, very weak level?
If I have my glass of water here and I drop in two drop -- two crystals of sugar, there is sugar in my water. But I may or may not be able to detect it. If I run it by some techniques, I may say not detected. It doesn't mean it's not there, it just means I can't detect it.
(Court reporter asked the witness to slow down.)
JANINE ARVIZU: I'm sorry. If I run it by a method with a very high detection limit, I won't be able to detect -- find the sugar. It doesn't mean it's not there; it just means that I can't find it. If I put a lot of sugar in there, that method might be able to detect it. And I would say, yes, I saw sugar in that water. So it really depends on how much sugar is in my water sample, or how much EDTA is in the blood sample.
MR. GAHN: When you looked at the data, did the testing procedures employed by the FBI detect, at the 1 microliter level, EDTA in the blood tube of Steven Avery?
JANINE ARVIZU: In the 1 microliter sample that they reported, a single instance, yes, they did report a positive for EDTA. The 2 microliter sample, they did not detect EDTA.
JANINE ARVIZU: Yes, that was the same set, yes.
JANINE ARVIZU: Yes.
JANINE ARVIZU: I believe that by the FBI's own data, they indicate that both methods are comparably sensitive. They report the same detection -- instrument detection limit for both. Let me look and see if I can find some negative here. Okay. I'm not sure this is your question, so tell me if I'm off track here.
MR. GAHN: Would it be helpful if I were to put up, on the big screen, the 1 microliter results from the tube of Avery -- tube of Steven Avery's blood?
JANINE ARVIZU: I completely concur that that shows the positive detection and identification of EDTA.
MR. GAHN: And what I'm saying, though, ma'am, is that, what you put up during direct exam was just in the positive ion mode. I would like to put it up in the negative ion mode --
JANINE ARVIZU: Okay.
JANINE ARVIZU: Okay. Okay.
JANINE ARVIZU: Well --
JANINE ARVIZU: Okay. Thank you.
MR. GAHN: And could you look -- does this state that these are the test results, in the negative ion mode, for the 1 microliter?
JANINE ARVIZU: Yeah. I don't know where that is in my package but, yes, that's what that looks like.
JANINE ARVIZU: Oh, yeah. There's a lot of stuff here.
MR. GAHN: And EDTA is clearly present in the negative ion mode. This is in the acid free, as well as the iron complex, in the tube of Steven Avery's blood, at the 1 microliter level, right?
JANINE ARVIZU: The way that the laboratory runs their protocol, their screening and confirmation, and they, essentially, have to have confirmation both ways. They have to have a positive in both techniques.
That's why, frankly, once I saw that it was not detected, I didn't spend a lot of time looking at the rest of it, but I will try to find this, if that's okay.
JANINE ARVIZU: I don't see the analysts call on here, so to see the criteria that they used. Okay. Thank you. That helps.
MR. GAHN: We can set this up anyway you like. We're just -- And look through the files, if you want. If this is helpful, we can move on. Can you work with this?
JANINE ARVIZU: That's just fine, yeah.
MR. GAHN: Does this show that EDTA is present in the vial of Steven Avery's blood, at the 1 microliter level?
JANINE ARVIZU: No, it doesn't, because there's inconsistent results for that conclusion from the other technique. You know, when you do it practicing analytical chemistry, you don't get to cherry pick which results you want to accept or not when you run a given sample through an instrument.
MR. GAHN: What is it about the data, that is on this form in front of you, that states that EDTA is not in Steven Avery's tube?
JANINE ARVIZU: Nothing.
JANINE ARVIZU: Nothing.
MR. GAHN: Okay. So, I will ask again, at the 1 microliter level, in the negative ion mode, looking at free acid form, as well as iron metal complex form, EDTA is present in the tube of Steven Avery's blood at the 1 microliter level?
JANINE ARVIZU: As called here, that is a correct statement.
JANINE ARVIZU: Sorry.
JANINE ARVIZU: Yes.
JANINE ARVIZU: No, I don't. I don't remember that. I'll bet you can put it up there for me.
JANINE ARVIZU: Please.
MR. GAHN: And, again, what I'm going to ask is that whether in the negative ion mode, looking at the free acid form and the metal complex -- iron complex, that EDTA is present at the 2 microliter level?
JANINE ARVIZU: It appears that the analyst has called it a no in this case. You know what, I'm sorry, can I get you to zoom in a little more --
JANINE ARVIZU: --right up here.
JANINE ARVIZU: I'm sorry. Okay. Yeah, it appears that the analyst in this case has -- has called this a no. And if you go back to the kind of left side where he's -- the left side of the page --
MR. BUTING: Zoom out.
JANINE ARVIZU: Yeah, be easier if you back up a little. Down lower. There we go. Clearly, in this case -- actually, if you go a little bit down, it will be more obvious that there is really nothing showing there.
Yeah, in this particular case, on this 247 ion, there's an indication that they simply did not detect it. And the analyst in this case is speculating as to whether that possibly may have been a weak injection.
MR. GAHN: Correct. But at the 1 microliter level, in the negative ion mode, which we saw before, EDTA is in the blood tube of Steven Avery?
JANINE ARVIZU: Based solely on that data, yes.
MR. GAHN: Now, when you -- And, clearly, whether you are in the positive ion mode or the negative ion mode, EDTA is present in the 5 microliter sample of Steven Avery's blood in the tube, correct?
JANINE ARVIZU: I don't recall ever seeing data from a 5 microliter sample of Mr. Avery's blood. I only recall seeing one, two, and the actual lead sample.
(Court reporter couldn't hear.)
JANINE ARVIZU: And the actual sample of Mr. Avery's blood. I recall seeing a 1 and 2 microliter spot sample and what they called the positive control from the Q sample.
MR. GAHN: But this morning or late -- earlier this morning, Mr. Buting put up the Positive Control B.
JANINE ARVIZU: Yes.
JANINE ARVIZU: Yes.
MR. GAHN: And you recognize that that's the 5 microliter level -- that's the 5 microliter level from his EDTA tube?
JANINE ARVIZU: Oh, I see. I see what you are saying, I think. That particular sample, I have no way of knowing exactly how much sample they used. That -- Because the sole identification of that is Positive Control, Q-49.
MR. GAHN: But, ma'am, in their notes -- don't they clearly state, in their handwritten notes, that for the Positive Control B, 5 microliters?
JANINE ARVIZU: All these samples have a 5 microliter injection volume. That's just how much of the sample is injected to the instrument, but it's not how much of the blood sample is injected in the instrument in that case. It's how much of the extract volume is injected into the instrument. Those are two completely different things, with completely different concentrations.
MR. GAHN: Are you stating that the Positive Control B, Q-49 extract, is not the 5 microliter level of Steven Avery's blood from the tube?
JANINE ARVIZU: I -- As I understood it, that was a prepared extract sample so -- and there's -- I will just mention there's -- there are very few words in this document. I can only infer from sample description, sample titles.
JANINE ARVIZU: On the one that's been admitted previously?
JANINE ARVIZU: Okay.
MR. GAHN: Instead of -- And I recognize that this -- such a large volume, is difficult for you to go through. We'll put it on the screen and, then, if you feel as though you want to look through your notes to find that section.
JANINE ARVIZU: Okay.
MR. GAHN: And do you see where it says Positive Control B, it's probably the third little hash mark down from the notes, Positive Control, 5 microliters?
JANINE ARVIZU: Can you zoom in on that, please?
JANINE ARVIZU: Okay.
JANINE ARVIZU: Uh-huh.
MR. GAHN: So, when you put up this morning, the positive ion mode for the examination of the analysis, of this positive control, that showed that EDTA was present in the tube of Steven Avery, this was at the 5 microliter level?
JANINE ARVIZU: I'm sorry, but that's a misunderstanding. If you continue to read here, it says 5 microliters of blood was pipetted onto a clean cotton swab. So he was not just taking 5 microliters and injecting it into the instrument.
He was taking 5 microliters and putting it onto a swab. And, ultimately, then it gets into the instrument. Now, that's analogous to if -- I'm not sure I'm understanding you properly -- but that is just analogous to the sample that I had concerns about, the 2 microliter sample. It's directly analogous to that, in terms of it wasn't directly injected into the instrument; it was placed on a swab and then that was extracted.
JANINE ARVIZU: Mm-hmm.
MR. GAHN: -- that at -- that in the data that you looked at, at the 5 microliter level, EDTA was present?
JANINE ARVIZU: Yes, sir, it was.
JANINE ARVIZU: I'm sorry, I thought that was like very clear.
JANINE ARVIZU: I want to make sure I answer the right one.
JANINE ARVIZU: Okay.
MR. GAHN: All right. So, now, when you are talking 1 microliter, 2 microliters, 5 microliters, it's an awfully small amount.
JANINE ARVIZU: It sure is.
MR. GAHN: And I think you said on direct exam that sometimes, you know, you get down and there can be things that can cause -- when you are down that low in your detection levels, whether 1 or 2 microliter, something can skew one, one way or the other; is that what you said or --
JANINE ARVIZU: Well, it's just that, when you are down that low, it's a more complicated analysis. And there is more variability, if you will, in the results. If the sample concentration isn't homogeneous, any number of things can cause differences.
MR. GAHN: But the data that we have just put up, as far as the 1 microliter of Steven Avery's blood -- And when we're talking 1 microliter, it's about like 1/50th of a drop, correct?
JANINE ARVIZU: Right. And it's only a very small fraction of a drop. If you look at this little pipette, it would be obvious how small it is.
JANINE ARVIZU: Yes, it sure is.
JANINE ARVIZU: In the one not in the two.
JANINE ARVIZU: In the 1 microliter sample, not in the 2 microliter sample.
JANINE ARVIZU: And in the 5, that they call the Positive Control, that's correct.
MR. GAHN: And some artifact, or some interference, or whatever, may have caused the 2 microliter level to -- under their protocol, to not call it?
JANINE ARVIZU: Sure. And that's -- that's why you do detection limit studies, because detecting it sometimes and not detecting it other times, is entirely the kind of thing you expect if you are operating at the detection limit.
JANINE ARVIZU: That's not unusual.
MR. GAHN: And even at the 2 microliter level, the presence of EDTA was indicated, but wasn't called, maybe because the ratio with one of the other ions was out of place, that's all?
JANINE ARVIZU: Well, you know, in analytical chemistry, close doesn't count. You either call it or you don't.
JANINE ARVIZU: That's correct, they did not.
MR. GAHN: But still, when you looked at the data, at the 2 microliter level, the presence of EDTA still was indicated?
JANINE ARVIZU: That's correct.
MR. GAHN: Okay. Now, maybe we don't even have to go through the graphs. When you looked at the extract, Q-46, which was -- under Q-46, do you know which one I'm talking about?
JANINE ARVIZU: Mm-hmm.
MR. GAHN: When you looked at the data in the positive ion mode and the negative ion mode, correct?
JANINE ARVIZU: Okay.
JANINE ARVIZU: I will look just to make sure, but that's my recollection.
JANINE ARVIZU: That's correct.
JANINE ARVIZU: That's correct.
MR. GAHN: And on Q-47 extract, which was the bloodstain from the rear passenger door of the RAV4?
JANINE ARVIZU: Yes.
JANINE ARVIZU: That's correct.
MR. GAHN: And on Q-48, which was a bloodstain from the CD case that was in Teresa Halbach's RAV4, in the positive ion mode, as well as in the negative ion mode, no EDTA was detected?
JANINE ARVIZU: Correct.
MR. GAHN: I'm going to show you a picture of the swabs. Have you seen the photographs of the swabs that were --
JANINE ARVIZU: Xerox copies, I haven't seen the photographs themselves.
JANINE ARVIZU: I can.
MR. GAHN: Okay. I want to show you, this was a -- where -- this would be Q-46. This would be where the swab was taken from by the Crime Lab analyst.
JANINE ARVIZU: Mm-hmm.
MR. GAHN: And I would like to show you, now, a photograph of the swab, Q-46, that was sent to the FBI for testing in this case. Now, again, we're dealing with 1 microliter, which is, I think we agreed, 1/50th of a drop.
JANINE ARVIZU: Okay. Here's the problem, we don't know what volume we're dealing with. After -- You know, we don't know what volume of blood was deposited on the dashboard, if you are referring to this particular -- these photographs?
JANINE ARVIZU: You said -- Okay.
MR. GAHN: What I'm stating is that the detection limit for the FBI protocol was they can detect the presence of EDTA at the 1 microliter level. Isn't that what the study stated?
JANINE ARVIZU: It stated that. I don't believe the data support that conclusion.
MR. GAHN: But you just stated that there was no EDTA present in the extract, Q-46, from the dashboard?
JANINE ARVIZU: True, but you can't run a detection limit study on unknown samples. That's an unknown sample. We don't know whether EDTA is present in that sample or not. You can only run detection on a set of unknowns.
JANINE ARVIZU: That's correct.
JANINE ARVIZU: That's correct.
MR. GAHN: Yet, in the blood tube of Steven Avery, clearly, in the 1 microliter level, in the positive mode and negative ion mode, testing for free acid EDTA and metal iron complex EDTA, it was present?
JANINE ARVIZU: It was present and confirmed in the 1 microliter sample.
THE COURT: Any redirect, Mr. Buting?
MR. BUTING: Yes.
REDIRECT EXAMINATION BY ATTORNEY BUTING:
MR. BUTING: Let's just -- Let's pick up right there for a moment. Mr. Gahn was limiting, very carefully, his question to the 1 microliter level. But as we have shown and discussed here, both direct and cross, the data that the FBI -- the only data they generated shows different results when you test an even larger stain at 2 microliter, in the positive mode, right?
JANINE ARVIZU: That's correct.
MR. BUTING: To an analytical chemist, what does it mean, then, when you get what appears to the layperson to be inconsistent results?
JANINE ARVIZU: I can certainly see how it seems inconsistent, but just based on my experience with detection limit studies, is that that's not an unexpected result if you are trying to analyze samples that are at or near the detection limit. The fact that sometimes you will see them and sometimes you won't, even at slightly higher concentrations, is not an unexpected result.
MR. BUTING: But does it allow you to draw the conclusion that Mr. LeBeau did in his report that, therefore, this protocol is detectable, or shows that EDTA can be detectable as low as 1 microliter?
JANINE ARVIZU: I believe that's not supported by the data.
MR. BUTING: Let me go back to the beginning of Mr. Gahn's questioning for a minute, because I want to make sure that it's clear to the jury, he asked for your opinion about whether or not this protocol was sufficient to test for the presence of EDTA, correct?
JANINE ARVIZU: Correct.
MR. BUTING: And you agreed that it is?
JANINE ARVIZU: It is. If it detects EDTA, it's a reasonable conclusion that it is present.
MR. BUTING: Okay. Is the protocol also, however, adequate, or not adequate, to establish the absence of EDTA?
JANINE ARVIZU: It is insufficient to establish the absence of EDTA at or near its detection limit.
MR. BUTING: All right. So you can use this protocol in one way, but you can also incorrectly use it in another way?
JANINE ARVIZU: Yes.
MR. BUTING: And in this -- Dr. LeBeau's attempt to use this protocol, to exclude the presence of EDTA in the bloodstains; is that a correct or incorrect way of using this protocol?
JANINE ARVIZU: I believe that's incorrect.
MR. BUTING: The questions about the expiration date, for a moment, on the tube, you indicated the manufacturer's expiration date is for the whole package?
JANINE ARVIZU: That's correct.
MR. BUTING: Part of which is EDTA, right?
JANINE ARVIZU: Yup.
MR. BUTING: And the -- As far as the stability of EDTA and its -- how long it lasts without beginning to degrade, does the FBI's own protocol establish only a six month limit for a known reagent quantity EDTA solution that they prepared?
JANINE ARVIZU: That's correct.
MR. BUTING: And in so doing, does that limit, in their protocol, express a -- I guess an opinion about the stability of EDTA in that solution?
THE COURT: Sustained.
MR. BUTING: (By Attorney Buting)~ Is the fact that the FBI themselves, when they make up a -- mix up a solution of EDTA, in their protocol, the fact that they limit its use to only -- or approximately six months, is that an indication then of -- is that a shelf life?
JANINE ARVIZU: That is, effectively, a shelf life.
MR. BUTING: And is that -- Similarly, is that similar to the kind of shelf life that manufacturers put on products?
JANINE ARVIZU: Yes. You use it after the shelf life at your own risk. It may or may not be what they put into it.
MR. BUTING: Okay. Let me just -- Let me just clear up a little bit the whole idea of detection limit. When you get down to a detection limit for a sample, does that mean that at that limit you are 100 percent of the time able to find what you expect to find?
JANINE ARVIZU: No, it does not. It means that 50 percent of the time you will be able to see it and the rest of the time you won't.
MR. BUTING: Really? So it's an equilibrium sort of, I mean, a null, or what would you call that?
JANINE ARVIZU: I wouldn't really call it equilibrium because that means something pretty different. But it's -- it's like you are trying to see whether or not there is one spike growing out of a field of grass. There is a lot of variability, and you are trying to see if one of them is big enough than the rest -- bigger than the rest of them, enough that you can detect it.
MR. BUTING: And what you are saying is when someone -- when a chemist establishes a limit, a lower limit of detectability, whatever that level is that's found, even there, 50 percent of the time the substance may be present and not detected?
JANINE ARVIZU: At that concentration, yes.
MR. BUTING: And the other 50 percent of the time it would be detected?
JANINE ARVIZU: Yes. When you get about an order of magnitude above a detection limit, that's the point where you can start to quantitate. You have to be higher than detection limit to be able to quantitate.
At a detection limit, you can only tell you whether or not it's there. You can't tell how much is there. In order to be able to tell how much is there, to actually get a quantitative analysis, you have to be substantially above the detection limit -- the instrument detection limit.
MR. BUTING: And you mentioned, early on in the direct, about some experience that you had and -- with the Navy, trying to examine the limits of detection that a particular protocol actually is designed to do, right?
JANINE ARVIZU: Mm-hmm.
MR. BUTING: You have to say yes or no, I'm sorry.
JANINE ARVIZU: Yes, sorry.
MR. BUTING: And in that instance you -- I believe you said you found that even though the lab was reporting that this -- to the Navy, that this chemical in the bay was not present, by reviewing the same kind of data you are seeing now, you were able to determine that that was a worthless opinion because the level was simply too high?
JANINE ARVIZU: Yeah. It was meaningless in that particular application. It's not -- It wasn't exactly the same kind of data. It wasn't LC/MS data, it was actually a different instrumental technique.
MR. BUTING: Okay. I don't want to confuse things then. So, finally, then, when Mr. Gahn asked you, based on this test and this data, whether or not EDTA was detected in Q-47 -- Q-46, Q-47 and Q-48, does that mean that none of those samples have EDTA in them?
JANINE ARVIZU: Not necessarily.
MR. BUTING: Because of what you talked to us before about detection limit?
JANINE ARVIZU: Yes.
MR. BUTING: So, can you conclude then, that any of the RAV4 -- 3 RAV4 stains that were examined by the FBI could not have come from the blood tube that contained Mr. Avery's blood?
JANINE ARVIZU: I can't conclude that.
MR. BUTING: Based upon the data that's presented there, generated from the FBI's own tests?
JANINE ARVIZU: Right.
MR. BUTING: Thank you.
THE COURT: Anything else, Mr. Gahn?
RECROSS-EXAMINATION BY ATTORNEY GAHN:
JANINE ARVIZU: Okay.
MR. GAHN: You are not stating that, in March of 1999, EDTA broke down and was not present in that vial?
JANINE ARVIZU: No. In March of '96, when it hit its expiration date, it doesn't suddenly go bad on April Fool's Day. Just like milk doesn't suddenly go bad on its expiration date. But that's as far as the manufacturer can certify to its acceptability.
MR. GAHN: But doesn't that expiration date really have to do with the vacuum and they can't guarantee that the vacuum of bringing the blood from the vein into the tube is going to operate?
JANINE ARVIZU: That's a serious limiting factor for those tubes, yes, absolutely.
JANINE ARVIZU: You know, it sounds subtle, but really it is the system for its intended use. If you go back and you look in the manufacturer's specs for these things, that's the way they describe them. They always talk about intended use.
MR. GAHN: But probably most noteworthy in this case is that the blood is still in its liquid form 11 years later?
JANINE ARVIZU: It is.
JANINE ARVIZU: That's correct.
JANINE ARVIZU: That's correct.
JANINE ARVIZU: Thank you.
MR. BUTING: A real couple quick follow-ups.
FURTHER REDIRECT EXAMINATION BY ATTORNEY BUTING:
MR. BUTING: If the tube, Q-49, that Mr. Avery has, says it's got EDTA in it, on the label, right?
JANINE ARVIZU: Yes. Well, it doesn't say it has it, it's implied by the presence of the purple top.
MR. BUTING: Okay. But I haven't brought that actual tube out for you to look at it so, but assuming that it does, then it would not be terribly surprising that some level of EDTA would be detected in that still liquid form, right?
JANINE ARVIZU: I would have expected that, yes.
MR. BUTING: Okay. But the real question that is of interest here is the stains in the car of the vehicle, right?
JANINE ARVIZU: That's correct.
MR. BUTING: And that's what you are saying Mr. -- Dr. LeBeau's report cannot rule out?
JANINE ARVIZU: Exactly.
MR. BUTING: Thank you.
THE COURT: All right. Members of the jury, at this time we're going to take our lunch break. I will remind you, again, not to discuss the case in any fashion, during the lunch break. We'll resume about 1:00.
(Jury not present.)
THE COURT: You may be seated. Will the -- You may be seated. Will the defense be ready to go at 1:00 --
MR. BUTING: Yes, we will.
THE COURT: -- with the next witness?
MR. BUTING: Yes, we will.
THE COURT: Very we'll. We'll see you then.
(Recess taken.)
THE COURT: Mr. Strang, at this time the defense may call its next witness.
MR. STRANG: Thank you, your Honor. And, actually, before I do that, and while I'm thinking of it, I would move into evidence Exhibits 499 and 500, which relate to Ms Arvizu.
THE COURT: Any objection?
THE COURT: Very well, those two exhibits are admitted.
MR. STRANG: And then the next witness is Dr. Scott Fairgrieve.