4.Scott Fairgrieve — Direct/Cross/Redirect/Recross (Part 2)

MR. FALLON: Good afternoon, Doctor.

MR. FALLON: Welcome to Wisconsin.

MR. FALLON: Is this your first trip?

MR. FALLON: You have. But this is the first time you have been asked to be a witness in a case, I take it.

MR. FALLON: All right. And this is the first time you have been here with respect to this case?

MR. FALLON: Okay. Now, I take it from your experience and training and your -- more importantly your resumé and your work for the Crown, it looks like you have done a fair amount of forensic work?

MR. FALLON: And I take it you are routinely asked to go to what are suspected crime scenes and assist law enforcement in the processing of those?

MR. FALLON: All right. And you have been doing that for about 15 years?

MR. FALLON: Sixteen years?

MR. FALLON: All right. And I take it, in the Province of Ontario, you have provided expert testimony on a number of occasions?

MR. FALLON: And, frequently, if not almost in all cases, as I understood it, you provided testimony for the Crown or the prosecutor?

MR. FALLON: All right. Okay. For this case, help us out here and tell us what information you had to assist you in expressing the opinions you have expressed this afternoon.

MR. FALLON: All right.

MR. FALLON: Background from the defense?

MR. FALLON: All right. We'll get to that in a minute. So that I'm clear, in terms of the documents you had for purposes of expressing the opinion today, you had the preliminary and final report of Dr. Eisenberg?

MR. FALLON: You had a copy of her testimony from the preliminary examination in this case, which is now about 14 months ago, I guess?

MR. FALLON: That's accurate. All I wanted to know was the base of information upon which he was operating. And I'm comfortable with his not mentioning whatever information they obtained from him because it's not germane to the rest of my examination.

MR. FALLON: Thank you.

MR. FALLON: (By Attorney Fallon)~ Doctor, as I understand, when we left off, you were telling us about the information that you had at your disposal to assist you in expressing these opinions this afternoon. So, let me begin by saying and summarizing, you had the two reports from Dr. Eisenberg?

MR. FALLON: A copy of her transcript from the preliminary examination?

MR. FALLON: Okay. You had a CD Rom of the -- I would imagine fairly numerous amount of photographs taken just by Dr. Eisenberg, of all the bone fragments she examined?

MR. FALLON: Maybe not all, but quite a sizable amount of them anyway?

MR. FALLON: All right. And you also examined a few pages of police reports as I understand it.

MR. FALLON: Now, the police reports you examined, were they reports authored by an agent from the Division of Criminal Investigation by the name of Tom Sturtivant?

MR. FALLON: All right. And there were about four pages?

MR. FALLON: But it would have been about the initial -- the initial discovery -- the reports -- But they were brief reports from the officer regarding the initial discovery?

MR. FALLON: Okay. Now, any other police reports?

MR. FALLON: All right. Other than the photographs of the bone fragments made by Dr. Eisenberg, did you obtain any other crime scene photographs?

MR. FALLON: Okay. Tell us about the crime scene photographs that you received?

MR. FALLON: Aerial views?

MR. FALLON: Okay.

MR. FALLON: All right. How about any of the photographs obtained prior to the processing of the pit, developed by the Wisconsin State Patrol on Sunday or Monday, that would be November 6th or 7th, the days before the pit was discovered on the 8th?

MR. FALLON: Some?

MR. FALLON: Did you receive any photographs regarding the processing of the pit by Special Agents Pevytoe, Sielehr and Rindt, occurring on Thursday the 10th?

MR. FALLON: Okay. So you did not see any photographs showing the pit covered in a blue tarp?

MR. FALLON: A blue tarp over it. And how many of those photographs do you recall? There were three rolls of prints.

MR. FALLON: All right. Counsel has provided me some information, so let's take a look.

MR. FALLON: If I may approach the witness, Judge.

MR. FALLON: Thank you.

MR. FALLON: (By Attorney Fallon)~ I'm showing you what has been marked, at least on the information provided by counsel, as roll four; does that look like a series of photographs that you are familiar with?

MR. FALLON: Great. All right. How about another stack of photographs, looks like D-16, 1 through 23, take a quick look at those.

MR. FALLON: Okay. Great. And D-14, 1 through 28?

MR. FALLON: Some, but you did not see all of them?

MR. FALLON: One last look here, if you would be so kind, D-15, 1 through 24.

MR. FALLON: All right. And you have seen those photographs?

MR. FALLON: As well as the photographs provided to you that were taken by Dr. Eisenberg?

MR. FALLON: Okay. Any other law enforcement reports, did you have the opportunity to examine?

MR. FALLON: All right.

MR. FALLON: That would have been an overview animation by Trooper Austin?

MR. FALLON: Now, with respect to the photographs that you have seen there, did you have all of the reports which were generated in conjunction with those photographs?

MR. FALLON: All right. Do you know when those photographs -- what day those photographs were taken, from the information you were provided?

MR. FALLON: All right. When were you first asked to assist in reviewing this information on behalf of the defense?

MR. FALLON: All right.

MR. FALLON: And in this particular case, you did not issue a report of your findings, correct?

MR. FALLON: You were not asked to write one, I take it?

MR. FALLON: All right. In the cases that you have testified for the Crown, you usually write a report, do you not?

MR. FALLON: As a matter of fact, I suspect that's probably required.

MR. FALLON: And that's so that when the gentleman who happens to be on the other side of the prosecution by the Crown, so that they would have fair notice of exactly what opinions you were going to express so they would know what they were?

MR. FALLON: Okay. By the way, while we're at that, when you work for the Crown, generally you have access to all of the information that the officers generate to assist you in formulating the opinions that go into that report; isn't that right?

MR. FALLON: And I would hazard a guess that it's probably pretty routine practice that you would review all that information before putting your report together as the consulting forensic anthropologist?

MR. FALLON: And that is because forensic means of, by, or pertaining to a court; that's right?

MR. FALLON: Right. So, in other words, it's taking your field of biological anthropology, your specialty, and kind of merging those principles with the principles of the law, to formulate an opinion and express it in a court of law?

MR. FALLON: Okay. Very good. Let's talk a little bit about your experience, a little more detail. You would agree, would you not, that no two crime scenes are alike?

MR. FALLON: As a matter of fact, each crime scene presents a host of different issues and problems that need to be addressed and resolved by those investigating what's before them?

MR. FALLON: And as such, there is a certain amount of professional judgment that needs to be exercised to perform your duties, which takes into account these varying conditions?

MR. FALLON: And while you may have a standard operating practice or procedure, sometimes that procedure has to be modified from time to time, given whatever you find at a location?

MR. FALLON: In fact, not every location can be processed with a grid format or a forensic mapping format, can they?

MR. FALLON: Well, have you been to any disaster locations or sites?

MR. FALLON: Not all of them are forensically mapped or gridded, are they?

MR. FALLON: But you can't say that that necessarily occurs in all cases?

MR. FALLON: All right. And there may very well be good reasons to depart from standard protocol and procedures when processing a scene?

MR. FALLON: And I would imagine in your neck of the woods in northern Ontario, weather is a pretty important factor in processing scenes, especially this time of year?

MR. FALLON: That might be one of the reasons that you might depart from a certain set of procedures, to account for that?

MR. FALLON: But you can imagine a situation where that is likely to occur?

MR. FALLON: Sure. All right. I would like to talk a little bit about fires. In your work, as I understand it, and maybe this is a good way to get into it, you specialize in studying cremations?

MR. FALLON: Cremated remains. Now, are those cremated remains, are those the kind that we're talking about in crematoriums, or do you use the word cremated remains in a more natural consequence?

MR. FALLON: All right.

MR. FALLON: Not commercial cremations. Are you familiar with commercial cremations?

MR. FALLON: All right. And while we're at that, would it be fair to say that it takes about 3 million BTUs to cremate a human body?

MR. FALLON: Yeah.

MR. FALLON: You wouldn't know.

MR. FALLON: Time and temperature.

MR. FALLON: All right. Then the average temperature to cremate remains varies somewhere between 1600 and 1800 degrees, anywhere from an hour and a half to two and a half hours? That sounds about right?

MR. FALLON: Correct.

MR. FALLON: That's right, I forget, you guys use Celsius.

MR. FALLON: You are not going to make me convert centigrade to Fahrenheit, are you?

MR. FALLON: Because I'm a lawyer, I can't do that.

MR. FALLON: We might need a translator yet. All right. And while we're at it, a BTU is a British Thermal Unit?

MR. FALLON: And would you accept the general proposition that one BT is the -- BTU is the amount of energy to raise the temperature of water one degree from 59 1/2 degrees Fahrenheit to about 60 1/2 degrees Fahrenheit?

MR. FALLON: All right. And actually --

MR. FALLON: Liter of water, excuse me, you're right.

MR. FALLON: (By Attorney Fallon)~ And a BTU is a means of measuring energy, right?

MR. FALLON: All right. Now, when you are looking at cremated remains in nature, one of the things that you would ask yourself, as a forensic anthropologist, you would want to know what the fuel load was; you might be interested in how such a fire was created?

MR. FALLON: Right. And we have at least four basic types of fuel, do we not? We have a liquid form of fuel?

MR. FALLON: We have solids?

MR. FALLON: We have gas or vapor?

MR. FALLON: And we have aerosols and even dust?

MR. FALLON: Right?

MR. FALLON: In fact, some powders, even wheat flour can somehow be exploded?

MR. FALLON: Okay. So you would agree, that in terms of determining the probability of burning human remains at nature, depends in large part on the fuel load, and more importantly, the exposure of the body to the heat itself?

MR. FALLON: As a matter of fact, in terms of the exposure of the body to the heat, the more surface area which is exposed to the heat, the quicker and faster the remains will reach that cremated state, correct?

MR. FALLON: So the bottom line is, whenever you are looking at that, what you want to do is try to assess, is how long the parts of the body were expursed -- were exposed to a certain temperature?

MR. FALLON: All right. And it's not so much the flame, by the way, that we're worried about, it's the exposure to the heat --

MR. FALLON: -- generated by the flame?

MR. FALLON: Now, we have a variety of solid fuels that are commonly used to burn, most notably, wood seems to be the most common, correct?

MR. FALLON: All right. And would you disagree with me if I were to tell you that per pound of wood would generate about 5,000 BTUs?

MR. FALLON: All right. And that a pound of coal would generate, roughly, about 12,000 BTUs?

MR. FALLON: And oil would be about 16,000 BTU?

MR. FALLON: All right. Now, one of the things that could be used for a fuel would be a tire, correct?

MR. FALLON: And as a matter of fact, a tire generates anywhere from about 14,000 BTU to 16,000 BTU per passenger tire?

MR. FALLON: And it's 14 to 16 because, if you shred the tire, you are likely to end up with about 16,000 BTUs of energy per pound of tire?

MR. FALLON: And the reason that happens is because there is more surface area of the tire which is exposed, and thus generating more heat?

MR. FALLON: The average passenger tire is about 20 pounds, right?

MR. FALLON: All right. So, then, the average passenger tire would generate anywhere from about 280,000 to 300,000 BTUs of energy?

MR. FALLON: And tires are a pretty good source of fuel because they burn consistently and they burn very hot?

MR. FALLON: They generate a great deal of heat?

MR. FALLON: And, as a matter of fact, you would expect to see a very large flame pile from one burning tires, correct?

MR. FALLON: Flame, a high flame.

MR. FALLON: All right. And they would generate a great deal of heat?

MR. FALLON: Okay. Now, before a body can be cremated, whether it's in the crematorium or in the wild, as it were, the body first has to be heated to a significant degree or temperature, correct?

MR. FALLON: All right. As a matter of fact, you have to, for all intents and purposes, you have to dehydrate that body first?

MR. FALLON: And as you heat the body, it begins to dehydrate. And after a particular point in time, the body itself, the remains become actually more fuel for the fire?

MR. FALLON: As a matter of fact, back in days of antiquity, when they had funeral pyres, they would often smear the bodies with animal fat to assist in creating the funeral pyre?

MR. FALLON: Now --

MR. FALLON: What time -- do you want to take a break?

MR. FALLON: Sure.

MR. FALLON: Okay.

MR. FALLON: Doctor, I would like to finish up our discussion of the burning human remains in the natural setting. You would agree, would you not, that there are several variables that are at play in trying to decide how a body was burned and how long it would have taken and things of that nature, correct?

MR. FALLON: All right. For instance, you would want to know the type and the amount of the fuel?

MR. FALLON: And you would certainly want to know what the weather conditions were, correct?

MR. FALLON: That would have an influence. You would want to certainly know what the ratio is of the fuel mixture to the -- what is the item being burned?

MR. FALLON: And very importantly you would want to know the extent to which the body was exposed to the heat generated by the fuel?

MR. FALLON: Now, you would agree, would you not, that an unattended -- we will use the term "funeral pyre".

MR. FALLON: Given all other variables being the same, but an unattended funeral pyre would burn at a slower rate than an attended one?

MR. FALLON: Because one -- an attended one, presumably the person who is conducting the fire, or managing the fire, that's probably a better word, would be able to make sure that the fuel load is adequately distributed to all parts of the fire?

MR. FALLON: All right. And, as a matter of fact, if the attending person wanted to make sure that the human remains were fully exposed to the heat, there may be some dismembering, correct?

MR. FALLON: Well, if you were to -- if you were to -- Let's put it right on the table. If you were to chop up human remains, there would be more surface area exposed to the heat?

MR. FALLON: All right. And, as a matter of fact, if that was occurring, then the remains would be consumed more quickly than if you had just left a body in toto, laying on a funeral pyre?

MR. FALLON: All right. I want to go back and visit the testimony that you discussed with counsel regarding the burn pit as being the potential, or possible, area of initial or original burn, and talk also about the impact, or no impact, of the burn barrel.

MR. FALLON: Just so we're oriented.

MR. FALLON: Perhaps the best place to begin is, I think we have an agreement, that for the minutest form of human bone, which has been subjected to a great deal of heat, professional training, in all likelihood, would be required to identify those items?

MR. FALLON: In fact, there are certain bits of human remains which are so small they could actually be the quarter -- quarter -- one quarter of a finger nail, might be just that much of a sliver of a bone that could be -- that the remains are present for?

MR. FALLON: And to the average person, and that includes all of us here, with the exception of yourself I would imagine, the chances of us being able to recognize an item that small as part of a human anatomy are about slim to none?

MR. FALLON: And you are aware that the vast majority of human remains, fragmented human remains of that size, were recovered from the burn pit area, correct?

MR. FALLON: And you are also aware, are you not, that various articles of clothing were recovered from that burn pit as well, correct?

MR. FALLON: All right. You are aware that there were some rivets that looked like they went to a pair of blue jeans?

MR. FALLON: A zipper?

MR. FALLON: All right. And all of those were recovered from the burn pit and from no other location that you are aware of?

MR. FALLON: All right. And just so that I'm clear, it's your understanding that, clearly, the -- some bones had to have been moved because we have human remains not only in the burn pit, but we have them in this burn barrel a couple hundred feet away?

MR. FALLON: All right. So you would agree that the only real explanation for that to have happened is human agency?

MR. FALLON: In other words, a person had to have taken them from one place and put them in another?

MR. FALLON: And in terms of the burn barrel, you are aware that there was no articles of clothing found from that particular burn barrel; there were no rivets?

MR. FALLON: No grommets from shoes?

MR. FALLON: No zippers?

MR. FALLON: And most of the bone fragments were of -- well, they were of a larger variety than those recovered from the pit itself?

MR. FALLON: Right?

MR. FALLON: Okay. Now, one thing, if you could clear up for me, I'm not sure, did you say that the bones in the barrel had a greater degree of burned affect, or was it the burns (sic) in the pit, which was it?

MR. FALLON: A longer exposure, as it were, to the heat.

MR. FALLON: In other words, they showed greater fragmentation?

MR. FALLON: Right.

MR. FALLON: Which may very well account for the fact that we have all of the really microscopic and very, very small fragment of bone recovered from the pit; that would certainly be consistent, right?

MR. FALLON: Okay. Now, as I understand your testimony, it's clear to you that the remains that were recovered here, most of which came from the burn pit, are the remains of an adult female?

MR. FALLON: And you do not take any issue with the fact that there is clear evidence of at least two gunshot to the cranial pieces, which were able to be recovered?

MR. FALLON: And you would agree, would you not, that they are entrance defects, correct?

MR. FALLON: And that's because the beveling, which is present, is on the outside of the -- in other words, the entrance area, correct?

MR. FALLON: It's on the inside?

MR. FALLON: And if they were exit wounds where would the beveling be?

MR. FALLON: On the exterior?

MR. FALLON: And in your opinion -- Well, let's digress momentarily. You had some question regarding cause of death and manner of death, let's just -- the only matter at issue here is manner of death. Now, in the remains that you observed here, you would agree, would you not, Doctor, that there would be no point in attempting an autopsy?

MR. FALLON: There's certainly not enough tissue, in fact there's no tissue left to examine?

MR. FALLON: Some tissue?

MR. FALLON: However charred. Which some DNA analysis was undertaken; are you aware of that?

MR. FALLON: But, by and large, that's really the only piece of mushel -- muscle tissue that was recovered?

MR. FALLON: And that alone, certainly would not be enough for one to conduct an autopsy in the traditional sense, correct?

MR. FALLON: All right. And you would agree, as an anthropologist, whether you have an archaeological perspective, or even a biological perspective, that examining bones in the condition in which these were found is, in large part, almost strictly the purview of a forensic anthropologist?

MR. FALLON: And you certainly wouldn't disagree with the fact that what you have is an individual who was murdered, would you?

MR. FALLON: Well, you wouldn't disagree with that as a logical conclusion to be drawn from the evidence provided, would you? I mean, she didn't jump in the fire herself?

MR. FALLON: And certainly didn't shoot herself in the head twice, right? That would be pretty hard to do.

MR. FALLON: How many times have you seen that done, Doc?

MR. FALLON: All right. Out of how many thousands of cases?

MR. FALLON: All right. Now, you can't say, to a reasonable degree of scientific certainty, that that burn pit was not the original place of the burning, can you?

MR. FALLON: I would like you to tell me just what evidence you have that the body could have been burned in the burn barrel?

MR. FALLON: Absolutely none, right?

MR. FALLON: In fact, the greater weight of the evidence, which is presented to you, would show that that barrel, in all likelihood, was not the location of the original burning?

MR. FALLON: Well, a typical 55 gallon drum, in which it certainly would be difficult to put an adult female of approximately 5 foot 6 in stature, and stuff her into a barrel and burn her; that wouldn't be the easiest of things to do, right?

MR. FALLON: And a matter of fact, it would be -- it would take -- you would have to agree, it would take far longer time to actually reduce a human being to the level of which you found the bones in the burn pit? It would take a lot longer to do that in a burn barrel?

MR. FALLON: There is not enough exposure. You would have to -- you would have to expose that body to a great deal of heat, correct?

MR. FALLON: All right. And it would be certainly really difficult to put in a lot of tires and high burning accelerants in that particular barrel, correct?

MR. FALLON: Nor can you say, Doctor, that the boiler on the property was the place where the original burning occurred, can you?

MR. FALLON: And you can't say that the smelter is the place of the original burning, correct?

MR. FALLON: Now, you had photographs of those items, right?

MR. FALLON: And you looked at the cellulose ash which was recovered from the wood burner boiler, right?

MR. FALLON: That ash is entirely inconsistent with the type of ash and debris which was recovered from the pit, correct?

MR. FALLON: All right. And in your -- And your review of strictly the photographs of the smelter, there was no ash, or charring, or anything inside the smelter, right?

MR. FALLON: That you could see?

MR. FALLON: So, we certainly can't say that the smelter was the place where the remains were burned, right?

MR. FALLON: All right. By the way, are you familiar with a process called board certification?

MR. FALLON: And what is that?

MR. FALLON: You have not yet pursued that certification; is that right?

MR. FALLON: Okay. All right. Oh, one more thing, Doc, you never looked at the bones in this case, did you?

MR. FALLON: Thanks.

MR. FALLON: About three questions.

MR. FALLON: The smell that one might, on occasion, find from human remains subjected to a fire involving rubber, that smell would dissipate over time, right?

MR. FALLON: As a matter of fact, it would certainly be subject to the elements of weather, would it not?

MR. FALLON: And that would certainly help dissipate the smell?

MR. FALLON: As a matter of fact, the greater degree of charring and calcination the less likelihood you are going to have that kind of smell, because there's not much for it to attach it to, right?

MR. FALLON: I lost my train of thought. If I may have one moment.

MR. FALLON: I'm afraid you're lucky, Doc, I lost that train of thought. I'm done.

MR. KRATZ: Yes, that's fine, Judge.

MR. KRATZ: It certainly is, Judge.