1979 JEFFREY MACDONALD CASE TRIAL TRANSCRIPT
August 13, 1979: James Osterburg, Professor of Chemistry
F U R T H E R P R O C E E D I N G S 4:10 p.m.
(The following proceedings were held in the presence of the jury and alternates.)
THE COURT: Defendant may call his next witness.
MR. SEGAL: The Defendant calls James Osterburg, Your Honor.
(Whereupon, JAMES W. OSTERBURG was called as a witness, duly sworn, and testified as follows:)
D I R E C T E X A M I N A T I O N 4:11 p.m.
BY MR. SEGAL:
Q Mr. Osterburg, what is your present residence, please?
A 1500 Oak Avenue, Evanston, Illinois.
Q And what is your occupation or profession?
A I am a professor at the University of Illinois in Chicago Circle and the head of the Department of Criminal Justice.
Q The Department of Criminal Justice: what is encompassed within the field of criminal justice studies?
A Well, criminal justice is a new field not found in all universities at present but in a large number of them, and it concerns itself with the crime causation, crime investigation, historical aspects of crime, legal components of crime, and psychological aspects of crime.
Of course there are faculty members who teach in each of these areas. No one faculty member pretends that he can teach in all of these areas.
Q How long have you been the head of the Department at the University of Illinois in Chicago Circle?
A Too long. Since 1971 or 1972.
Q And prior to that you were a member of the faculty of the same university?
A I was, for about one year.
Q What previous academic affiliation did you have before going to the University of Illinois?
A Well, immediately prior to going to Illinois, I was a faculty member at Indiana University in Bloomington, Indiana, in the Department of Police Administration. Subsequently, the name of the department was changed to the Department of Forensic Studies.
Prior to that, I was a faculty member at the Baruch School, which is a part of the City University in New York City. I was a lecturer at that institution.
Q Were you ever a member of the faculty at the University of California School of Criminology?
A I was. I was a visiting professor for one year from 1967 to 1968, as visiting professor in Berkeley, University of California.
Q In what field is your bachelor's degree?
A My bachelor's degree is in chemistry as my major. I have a bachelor of arts degree.
Q When you say that you majored in chemistry, did you have more than one course in chemistry?
A Yes, Counselor, I had eight courses -- ten courses.
Q And your bachelor's degree is from what university and what year?
A My degree in chemistry -- undergraduate degree -- is from Brooklyn College, again one of the city universities, in June 1938.
Q Did you do any graduate work thereafter in the field of chemistry?
A I did. I studied for a master's degree at Brooklyn College also, and completed the course requirements; but then my employment precluded my writing a thesis. This being Depression days, one took a job when he could get one. And I didn't finish the thesis, but I completed the course requirements for the master's degree in chemistry.
Q And how many graduate credits in chemistry did you have?
A My recollection is 30 graduate credits -- semester hour credits. That comes out to about 10 courses.
Q In addition to these graduate credits in chemistry, do you have any other graduate studies or graduate degrees?
A I do. I have a Master's of Public Administration degree, which I received from New York University in 1960.
Q And was that in any special area of emphasis in regard to law enforcement?
A Well, I had some law enforcement courses in that -- in the -- taking the degree.
Q Now, have you had any practical experience in police work, particularly in the area of forensic science in police work?
A Yes, I was a member of the New York City Police Department for 20 years. I am a retired member of the New York City Police Department. For approximately 10 of those years I was active in examining physical evidence at crime scenes, among other things.
Q Did you have any experience also as a patrol officer while you were with the New York City Police Department?
A Yes, I did. For the first year and a half, approximately, I was a patrolman in the 22nd Precinct, or the "Two-two," as it is called in New York City.
Q Did you ever have any assignments in the Police Academy or responsibility for teaching other police officers?
A Yes, I did. The last five years of my assignment in New York City Police Department was as a faculty member in Baruch School, and at that time the students were almost exclusively police officers from the New York City Police Department and some other police agencies in the vicinity of New York.
Q And during the period of time that you were engaged in crime laboratory work, did you hold the rank of detective in the New York City Police Department?
A I did.
Q After you retired in 1960 from the Police Department, is that when you went into active teaching and university work?
A Well, I was actively teaching as a full-time occupation while a member in the Police Department, assigned to that duty by the Police Commissioner from 1955 on.
Q Do you have any military experience?
A I was a member of the U. S. Army Military Police Reserve.
Q What rank did you hold?
A I received a direct commission as captain in the Military Police Reserve -- Army Reserve.
Q And how many years were you with the Army Reserve Military Police?
A Somewhere around six years -- five years.
Q And did you hold any special responsibility with any organization or unit within the military police corps?
A I was the commanding officer of a mobile crime laboratory detachment, the 497th.
Q Just very briefly, what was the CID mobile crime detachment supposed to do?
A Well, in the event of mobilization, the mobile laboratory would be available for going to crime scenes, to process crime scenes, for such evidence as might be available. At least -- since I never practiced it, I don't know. That's my -- what I thought we would be doing.
Q Are you the author of any books, Mr. Osterburg?
A Yes, I am the author of two books: one written by myself and a co-author, Charles E. O'Hara, entitled An Introduction to Criminalistics, published first by MacMillan in 1948 and republished -- reprinted, really, by Indiana University Press in 1970 -- the early '70s, I don't recall the reprinting date.
Q And in the book Introduction to Criminalistics, what topic -- what subjects are covered in that book?
A Well, it deals with criminalistics. You would cover such things as tool marks and fingerprints and photography and the use of ultraviolet light, and how to investigate automobile accidents, some information on scientific instruments that are applied to the examination of physical evidence found at crime scenes.
Q And what is the other book that you are the author of, Mr. Osterburg?
A The other book was published by Indiana University Press in 1968, I believe. It is entitled The Crime Laboratory, case studies in investigation -- scientific investigation, criminal investigation.
Q Now, are you the author of chapters as portions of other books in the field of criminal investigation, criminal science investigation?
A I have been invited to author chapters in other books, yes.
Q And about how many have you actually written that have been published?
A Oh, I think about three -- four.
Q Have you also written articles in professional and scholarly journals in the field of forensic science and police investigation?
A Yes, I have.
Q About how many journal articles have you written that have been published in such journals?
A I have about 20 journal articles which have been published.
Q And can you just give us an idea of what subjects -- the range of subjects that you have covered in your writings?
A You are going way back now, sir. I am interested -- my current interest is in fingerprints and fingerprint proof. In the past I have written on incriminating stains, homicide investigation, suicide or accident -- question mark, some articles on chemical tests for intoxication.
Q In addition to the 20 journal articles that you've written, have you written reviews of other books in the field of forensic science and criminal investigation that were also published in scholarly journals?
A Yes, I have published about -- sixteen book reviews of mine have been published. Within recent times I seem to be asked to do most of the published -- or the reviewing of books coming out on criminal investigation.
Q Now, have you also been asked to either present papers at symposia or meetings of forensic science and criminal investigators, or serve as a moderator of meetings and discussions by professionals in the field of criminal investigation?
A Well, criminal investigation and forensic science -- the answer is yes. In about 30 instances I have presented or been a moderator of or involved in some way in organizing a symposium or conference dealing with the area of forensic science, criminal investigation.
Q Mr. Osterburg, what would you say your areas of specialization in the areas of forensic science and criminal investigation is today?
A Today? Well, my current research interest is in proof, but my experience is in the recognition, collection, and preservation of physical evidence at crime scenes, and the book, The Crime Laboratory, was written with the hope that it would make a major contribution to literature of the field such that police offices and those responsible for protecting crime scenes would know what needs to be done in order to recognize physical evidence. So I obtained actual police cases -- about 30 of them -- all of which are the actual evidence found at crime scenes, with one exception, and photographically presented this evidence -- or it is presented in the text -- to the police officer, so that he may have this crime scene photograph and then the exemplar or known standard, which I gather you have heard those terms before in this courtroom. That is presented and the student has an opportunity of looking at what was present in the crime scene, what was -- what the exemplar taken from a suspect or something in his possession would look like and then see whether they could be compared using numbers to show points of comparison and so on.
Now, in selecting these cases, I did not look for textbook -- typical textbook illustrations where everything was so beautiful that anybody could see it. I deliberately selected cases where the crime scene evidence was so poor, or apparently so poor, that many people would have overlooked collecting that physical evidence, but nevertheless, if it were collected, would somebody who knew what they were doing -- by somebody who knew what they were doing -- then the comparison between the exemplar taken from a suspect and that physical evidence, the match could be made.
Q Mr. Osterburg, while we are talking about your book, do you know whether your books -- the two books on criminal investigation -- are on the recommended reading list for any police department or criminal investigation agency?
A I would be surprised if they weren't. I know that the military police, at least -- my publisher would be displeased -- the military police, I am informed, use An Introduction to Criminalistics. Whether they use The Crime Laboratory or not, I am not sure.
Q Now, in addition to your interests in physical evidence, have you had an experience in the problems of crime scene preservation and control and preservation of evidence at crime scenes?
A Yes, I have.
Q Now, one last area I want to ask you in this preliminary examination, are you a member of any professional organizations in the field of forensic science?
A Yes. I am a member of the American Academy of Forensic Scientists, which is the largest organization of forensic scientists in the world.
Q Have you held any positions of responsibility within the American Academy of Forensic Scientists?
A Yes. I was the Chairman of the Criminalistics Section and then I became the President of the Academy.
Q What year were you the President of the American Academy of Forensic Scientists?
A I think it was '68-'69. I am not sure. I would have to refer to my vitae.
MR. SEGAL: If Your Honor pleases, at this time, first of all, we would mark and offer in evidence Defendant's exhibit D-58, the full vitae of Professor Osterburg, including the names of all articles and literature that he has written, a document of 14 pages in length. We have given a copy to the Government, and, secondly, if Your Honor pleases, we would offer Professor Osterburg as an expert in the area of fingerprints, crime scene investigation and preservation, and criminalistics matters generally.
THE COURT: Very well.
(Defendant Exhibit 58 was marked for identification and received in evidence.)
MR. SEGAL: Does the Government care to ask Mr. Osterburg any questions?
MR. MURTAGH: No, Your Honor. Thank you.
BY MR. SEGAL:
Q Mr. Osterburg, let me ask you perhaps what is a very basic question at the outset, but I would appreciate it if you would perhaps tell us as relatively succinctly as you can, what is the importance, what is the necessity of protection of a crime scene?
A Well, a crime scene represents the first opportunity an investigator has to obtain evidence of the individual or individuals who committed the crime. In order to do that, he must examine that crime scene with some knowledge about what he is going about, why he is going about doing it. But in order to do that, the crime scene must be protected so that physical items of evidence are not disturbed, touched, trampled upon, moved, or possibly even removed if those that committed the crime were to come back and, because they were apparently part of the scene, they could pick something up and put it in their pockets and so on. What you want to do is freeze the crime scene as soon as possible.
Q Are there a series of principal steps that a good scientific criminal investigator would agree are necessary in order to preserve a crime scene for this type of investigation?
A I am not sure you would say "step -- you have a checklist A, B, C." But there are certain things that need to be done that there is common agreement among investigators, and primarily, namely, making sure that the crime scene does not have intruders, people milling about, eliminating the possibility of things being disturbed or handled or touched or moved and doing that from the very first instance.
Q Now, you say that the crime scene shouldn't have intruders. What kind of person do you define as "intruder"? Do you mean civilians walking in off the street?
A Not necessarily civilians. Of course, it could be a civilian coming in if it is not properly protected. It could be newspaper people coming in, but more than likely, it is to be members of the department or the patrol force coming in and walking around because they are curious and so on.
Q I would like to turn your attention to a specific area dealing with fingerprints, since that is one of your major areas of interest. I want to ask you some questions about the fingerprint processing of the house at 544 Castle Drive at Fort Bragg. First of all, am I correct in my understanding that you have read the transcript of the testimony of Hilyard O. Medlin given here in this Court and also given at the Article 32 proceedings in 1970?
A I have read both of those.
Q Have you looked at a number of photographs taken of the crime scene at 544 Castle Drive?
A I have.
Q And have you had a chance yourself to personally visit 544 Castle Drive?
A I have, last Saturday.
Q Have you also heard the testimony in part of the lead investigator in this case, Mr. William Ivory of the CID?
A In part; yes.
Q Now --
MR. MURTAGH: (Interposing) Your Honor, we would OBJECT if he has not heard or read the testimony in its entirety, if he is going to be asked questions pertaining to Mr. Ivory.
THE COURT: Well, of course, the questions would have to be limited to that portion of his testimony with which he is familiar, if he is going to be asked about it at all. I take it that he wouldn't ask him anything about what he didn't know about. Proceed.
MR. SEGAL: Thank you, Your Honor.
BY MR. SEGAL:
Q Now, we have heard that the Crime Lab team that came from Fort Gordon on February 17th, 1970, was given a briefing by CID investigators in this case about what facts they had. Now, considering the information that the Crime Lab investigators were given about this crime, would you say that the house at 544 Castle Drive was processed for fingerprints in the manner that is consistent with good crime scene processing procedures?
MR. MURTAGH: OBJECTION, Your Honor.
THE COURT: SUSTAINED.
BY MR. SEGAL:
Q Do you have an opinion as to whether the crime scene as it was processed by Mr. Medlin and Mr. Turbyfill was processed in a manner in which you would call, in your opinion, consistent with good criminal investigation practices?
MR. MURTAGH: OBJECTION.
THE COURT: SUSTAINED.
MR. SEGAL: May we see Your Honor, please?
THE COURT: Yes.
B E N C H C O N F E R E N C E
MR. SEGAL: Your Honor, I would like to have an offer as to the basis of why we are not permitted to ask this witness, considering he has read Mr. Medlin's testimony as the fingerprint expert, and he has seen the crime scene, as to why he may not, considering his qualifications, tell us whether they comport to standards in the field.
MR. MURTAGH: Your Honor, that seems to me it is a nebulous area in which the witness is being sort of set up as a Monday morning quarterback. If Mr. Osterburg is in a position to testify with respect to anything that Mr. Medlin compared and say that it is either not consistent or not identifiable, that is one thing.
But the general sort of, "Do you think this crime scene was adequately processed," -- this man, if he has only read what Mr. Segal has brought out on direct examination, I do not see how he is in any position to judge this better than the jury.
The jury has heard the testimony of numerous people who were in the crime scene -- warts and all -- with respect to the processing. It seems to me that expert testimony would only be called for in a matter in which the jury is not capable of making such a determination.
Based upon the facts that are in evidence, I think the jury is certainly capable of determining these shortcomings, if there were some, of the processing of the crime scene. But I don't see how that affects the evidence that was put in.
We did not put our case together on the omissions of the crime scene. We were talking about things -- the tangible objects -- that were collected, were matched, or were not matched. If he is in any position to say that our matches are inaccurate, that is one thing.
THE COURT: Let's begin right here, now. Have you got any fingerprint evidence in this case?
MR. MURTAGH: The only prints that we offer -- we have the footprint, MacDonald's footprint. We have the record prints of Helena Stoeckley, which were not found at the crime scene. Mr. Medlin testified to that.
We have the fingerprints of the victims and the Defendant's record finger and palmprints. The only comparisons, I think, we put into evidence with respect to his prints, other than the footprint, was related to Esquire magazine.
THE COURT: Let me tell you, what I am concerned with is just whether or not it proves anything. You are, of course, going to say that we found these knowns and didn't find any strangers. I take it that is part of your case.
MR. MURTAGH: Your Honor, we can say that there are unidentifiable prints at the crime scene. I think we brought out that none of those unidentified prints are on any items of obvious evidentiary significance -- the weapons, for example.
This is not a situation where you have a bloody fingerprint on two sides of a piece of broken glass.
THE COURT: Maybe I don't understand where defense counsel is going, but I can't see that it proves anything. If what you propose to do is simply to show, by this witness, that if they had done a thorough Segal-type investigation on this house in processing it, that they might have found something else, and they might not. I think that still leaves that in speculation.
MR. MURTAGH: Yes, sir.
MR. SEGAL: If Your Honor pleases, as I understand the Government's theory of the case, it has to be -- they have said it -- that there is no evidence of intruders in this house. And in part to show that, they went to extreme lengths to have Mr. Medlin testify about how thorough he dusted for fingerprints.
Why he dusted up to 18 inches and not below, up to six feet. He wasn't dusting to prove the MacDonalds lived there, Your Honor. We all know they lived there. He introduced all that evidence at great length -- all the problems about lifting to show that they could not find evidence of intruders.
Secondly, Your Honor, they went to great length to tell us about how they found the fingerprints on the back door, and why they could not bring them in. It is my proposal, Your Honor, to show that the reason why the United States Government did not find, in part, fingerprint evidence, is because they did not look in the places where they should have looked.
That good criminal practice -- not some ideal system -- but good criminal practice would have required them, and that Mr. Medlin and Mr. Turbyfill walked right past the obvious points of evidence.
The way I propose to do it is to first of all -- because the Rules of Evidence now allow it -- to let him state an opinion. I will go beyond that. After that opinion, I will say, "What do you base that opinion on," and we will go from instance to instance. Not a "Why didn't you dust on the ceiling in the middle of the room."
We will go to every critical place and he will say why it is important to have dusted there. Now if the Government's case is based upon the fact that they claim they can't find evidence of intruders and therefore that means MacDonald was lying about his story, I don't understand how the Defendant can be denied the opportunity of showing that in a totally circumstantial case, the Government -- for whatever reasons -- refused to, failed to, neglected to fingerprint the critical areas.
THE COURT: You want to show that they did not look in all the places where these things might have been found?
MR. SEGAL: Reasonably. I am not talking about, "Why didn't you look under the sink." I mean, that is silly and it would not be worth our time.
THE COURT: Give me some examples of places where he will say that they should have looked that Medlin didn't look.
MR. SEGAL: On the door that connects the utility room to the master bedroom on the inside panel, on which one would push one's hand to open the door. It is a swinging door. Mr. Medlin did not dust. There is no fingerprint powder. There is no evidence. His records show he did not dust.
He will show that on the headboard where the word "Pig" was written, that Mr. Medlin dusted a portion and failed to dust the major portion of it. He will go through a series of places, you know, in the living room that are critical.
MR. MURTAGH: Your Honor, the door that leads from the utility room into the master bedroom, if we take the testimony of Mr. Tevere, who I think has no reason to lie, that door was open. As I recall, this inside door is kind of jammed in a position.
In other words, there is no reason why you would have to open the inside door in order to get in or out of the bedroom. With respect to the fingerprints, the one thing I would want to bring out to the court's attention is this.
I think we established through Mr. Medlin's testimony that fingerprints can exist and be detected in places long after they are placed there. There are unidentified fingerprints in the crime scene, but you cannot, by the presence of any of those fingerprints, say, "This print had to have been made during the commission of the crime."
There is no such evidence. I believe we did not say there was no evidence of intruders. What we said was there is no evidence of forced entry. In other words, it is not a sterile crime scene.
THE COURT: I think we are taking too much time with this. I am going to let the witness say where he would have looked that this guy apparently did not look. I will reverse myself on that. You can bring it out on cross-examination.
(Bench conference terminated.)
BY MR. SEGAL:
Q Mr. Osterburg, I am going to ask you a general question and then I would like to, depending upon your answer, perhaps, to go into a number of specifics.
But first of all, to repeat my general question: based upon the information that was given in the briefing by the CID lab team, including Mr. Medlin and Mr. Turbyfill, concerning the events that they knew had taken place February 17, 1970, in your opinion, based upon your experience and your expertise, do you have an opinion as to whether the crime scene was fully processed for fingerprints as would be required by good crime scene processing practices?
A I do have such an opinion.
Q And what is your opinion in regard to the adequacy of the crime scene fingerprint processing in this case?
A The crime scene was grossly underprocessed.
Q When you say "grossly underprocessed," what do you mean?
A Well, there are obvious areas where anyone trained in fingerprint processing of a crime scene would have processed. And there is no evidence, based on my examination Saturday, that those areas were indeed processed.
Q And are you basing that statement not only on your observations but on reading Mr. Medlin's testimony in these proceedings here?
A Mr. Medlin said he processed everything that didn't move, as I recall.
MR. MURTAGH: OBJECTION.
THE COURT: Well, I will SUSTAIN that. Don't consider that, members of the jury.
BY MR. SEGAL:
Q Mr. Osterburg, would you take, for instance, the first example of what you think is an instance of gross underprocessing of the crime scene for fingerprints?
A Well, upon entering from the rear door into the utility room, immediately to the left is a light switch.
Q Can you hold on for one second. Let's see if we can get our model, which has been neglected for a few days, back into position.
Q May I ask, Mr. Osterburg, if you would come down, please, and indicate if you would -- there is a pointer right back of your chair there -- if you would indicate to the members of the jury the first of these areas that you are referring to?
A Yes. There was a light switch in this area, and so when the door was opened if the lights were on or off it is possible someone would, in moving, in touch to see the wall -- what's present. There was no evidence of processing of that area around the light switch whatsoever.
Q Is that a usual or unusual place for a fingerprint processor to be looking for fingerprints?
A Well, of course, that's where you would look for fingerprints.
Q Now, proceeding past that, were there any other places in that area that you found were neglected for processing fingerprints?
A This is the swinging door that -- I don't want to break the model -- but it does go in both directions. Oh, I did break it.
If this door were closed, most people -- many people would put their hands up and push on the separate panel. That was not processed whatsoever.
MR. MURTAGH: OBJECTION, Your Honor. The hypothetical assumes a fact which is not in evidence.
MR. SEGAL: Well, I will put in an intervening question, Your Honor.
THE COURT: All right. I will SUSTAIN the objection and let you ask your question again.
BY MR. SEGAL:
Q Did you examine that door that you are referring to between those two rooms?
A I did.
Q How does one cause that door to swing in either direction?
A Well, by pressure -- by pushing on it.
Q Is there a handle on it in any place that one would use ordinarily?
A No, that door does not have a handle as such -- doorknob.
Q Did you examine the two faces of that door to see whether they had been fingerprinted?
A I did.
Q Did you find evidence of fingerprint processing on one side or the other?
A I would refer to my notes, if I may.
Q Please do.
A There's evidence of fingerprint processing on the door, but it was on this side largely, more just on the four-inch border -- whatever that is called.
Q Now, when you are saying, "this side -- "
A I will refer to them in a minute.
Q Are you referring to the side that faces into the master bedroom?
A I am referring to the side that faces inside -- into the master bedroom. Now, let me see what the notes say. That was powdered from the floor -- let me reverse that.
At a height 50" above the floor there was evidence of processing of this side of the door, the south side of the door that faces the master bedroom; and it was processed to a height of 25" from that.
Q So, the highest point the processor had gone was -- what?
A Twenty-five inches.
Q Off the floor?
A No, 20 inches off the floor started the powder and then for 25 more inches, making a total of 45 inches up to less than a height of four feet, there was evidence of processing. And that was on the doorjamb in the master bedroom.
Q Now, was there evidence of processing on the other side of that same door?
A On the utility side?
A Let me examine my notes. May I correct what is in error?
A I was talking about the doorjamb before and not the door. Let me go to the door.
Q All right, please do that.
A And let's --
MR. MURTAGH: (Interposing) Your Honor, we would ask that the Court please instruct the jury to disregard that previous testimony which was apparently in error.
THE COURT: Well, if you were speaking of the doorjamb, I assume that he will come back with questions about the doorjamb. Let's let it stand like it is and save it. Tell us about the door itself. Does that have any dusting on it at any place?
THE WITNESS: Yes; on the south side of the door, which is what I was talking about earlier -- the south side of the door. At 25 inches above the floor, processing commences, and it goes up to 48 inches -- not a height total of 48 inches but 48 inches high on the door frame; and the door panel, the centerpiece, went up to a height of 43 inches.
BY MR. SEGAL:
Q Now, what other areas were not covered that in your opinion a competent fingerprint processor should have covered?
A Well, in my opinion, the entire door should have been processed. It is not that laborious nor time-consuming, and to be certain that you miss nothing, you would process the entire door.
Q Now, beside that door, what about the doorjamb? Was the doorjamb, in your opinion, fully processed?
A On the south side doorjamb -- that's the side inside the master bedroom --
A -- I think I gave these figures before, but I will repeat them.
Q Please do.
A Twenty inches from the ground or the floor, processing begins, and then it goes on for 25 inches and ceases at a height from the floor of 45 inches.
Q What additional areas would you have felt that a competent fingerprint technician should have processed on that doorjamb?
A Well, again, I would have continued as high as one could reach.
Q And why would you do that?
A Because this is a triple homicide and I would take no chances of missing any possible evidence of somebody possibly raising and looking in -- whatever. It is not that hard to do. It should be done.
Q Would that be particularly so in view of the fact that the crime scene processors had no information about the height of the assailants described by Dr. MacDonald?
MR. MURTAGH: OBJECTION, Your Honor.
THE COURT: SUSTAINED.
BY MR. SEGAL:
Q All right, now, did you have occasion to look at the headboard in the master bedroom, Mr. Osterburg?
A I didn't finish talking about the swinging door.
Q I beg your pardon. I'm sorry.
A Now, on the north side of the swinging door -- namely the utility room side -- 32 inches above the floor, processing commences for a height -- then for a height of 38 inches or up to 70 inches high. That's on the frame, on what I would call the door frame, which is in width four and a half inches. That's on the left-hand side of the door facing.
The panel area and none of the rest of the door -- no part of the rest of the door -- was processed where a person might push on it.
Q Would you point out, please, on that door, or on the model, exactly the areas where you say there is no evidence of processing on the panel?
A I am the only one who can see it, I think.
Q Let's see if we can lift it up a little bit. I will have to pay for it, I'm sure.
MR. MURTAGH: OBJECTION, Your Honor.
MR. SEGAL: All right, I won't have to pay for it. Then go ahead.
THE COURT: The bill was canceled.
THE WITNESS: There is a piece of wood four and a half inches wide that runs on the outside of the door, and at the top and at the side and at the bottom. Then in the middle, there is another wider strip, and then there is a panel in between those. That was not processed.
BY MR. SEGAL:
Q Now, in your opinion, would a competent --
MR. MURTAGH: (Interposing) OBJECTION, Your Honor.
MR. SEGAL: -- Fingerprint processor using --
THE COURT: (Interposing) What are you objecting to? He was just three words into the question.
MR. MURTAGH: I am objecting to the assumption of the competency or the lack thereof that is loaded into the hypothetical.
MR. SEGAL: I am not asking what an incompetent person would do. I am asking --
THE COURT: (Interposing) I don't know what you are asking. I will let you start over and I will find out.
BY MR. SEGAL:
Q In your opinion, Professor Osterburg, would a competent fingerprint processor have processed that part of the door for fingerprints at a crime scene of this magnitude?
A A competent, conscientious crime scene fingerprint processor would have.
Q Is there anything else about the utility room that you observed in the course of your investigation into the house and your review of Mr. Medlin's testimony?
A I think that points to the type of processing that went on in that building.
MR. MURTAGH: Your Honor, I OBJECT to that.
THE COURT: I will SUSTAIN the objection to that.
BY MR. SEGAL:
Q Let's talk about the master bedroom, then. Did you make any observations in there about the extent or lack of extent of fingerprint processing in that room?
A Yes, I did.
Q What, if anything, did you note that struck you as unusual from the standpoint of fingerprint processing in that room?
A Well, the east all and the south wall were unprocessed.
Q Let's move the model again, and if you would, then please point to the walls that you are referring to?
A The east wall and the south wall were unprocessed.
Q Now, along the east wall, when you say "unprocessed," you mean that you found no evidence of fingerprint powder on the wall at all?
A That is correct.
Q What about the headboard of the bed there in the master bedroom?
A When you say "at all," I am incorrect there. There was a little area above the bed, a small slight area above the bed that was processed.
Q Could you indicate here on the model precisely what area you are talking about?
A This area in here (indicating).
Q Could you indicate roughly the size of the area?
A I may have those measurements. No, I am sorry. I don't have the measurements.
Q What did you observe that was unusual, otherwise, about the fingerprint processing in the area of that particular wall?
A It is the headboard itself which I concentrated on.
Q Tell us about your observations there?
A The headboard is 56 inches wide. From this side (indicating), facing it, which would then be the left side, 21 inches in were processed. Seventeen inches from the top down were processed. Now, on the top edge of the headboard, six inches in were processed out of the 56. Going down on the left side of the bed, facing the bed from the foot, 12 inches were processed on the edge of the headboard.
Q Now, was there any particular pattern or reason that you could understand as to why only that limited section of the headboard would be processed?
A I am totally mystified.
Q In your experience and based upon your knowledge, what should a competent fingerprint processor have done to the extent of fingerprint processing of the headboard on which the word "Pig" was written?
A With the exception of where the word "Pig" was written -- where the question of fingerprint powder contaminating blood could arise -- the entire headboard, side, and top should have been processed.
Q Now, were there any other areas in the master bedroom that drew your attention in regard to the way they were processed, or lack of processing?
A The north wall near the light switch, which is right as you come into the swinging door. That was processed at a height beginning at 51 inches from the ground up to 63 inches, or in other words, a 12-inch area was covered.
And to a depth of 6½ inches in, a very limited area of processing. Certainly, if this were the method by which entrance was gained to these premises, that is one area where heavy concentration should have been given and effected by the individual concerned with processing that for fingerprints.
MR. MURTAGH: Your Honor, I would MOVE TO STRIKE that answer. The witness has assumed a fact which was not in a hypothetical nor in evidence.
THE COURT: Well, OVERRULED.
BY MR. SEGAL:
Q Is there any indication that there had been, in fact, heavy processing for fingerprints done in that particular area?
A There was no indication other than the small area that I indicated.
Q Is there any other area in the master bedroom that attracted your attention in that same regard?
A Yes, on the west wall. There was a light switch and on the wall area between the wood frame of the closet and the doorjamb -- eleven inches wide -- there is a closet and there is a doorjamb. The distance between those is eleven inches. An area 3 inches wide and 12 inches long was processed.
Again, a very, very negligent fashion or method of processing a crime scene, in my opinion.
MR. MURTAGH: OBJECTION.
THE COURT: SUSTAINED. Don't consider that, members of the jury. I will let him give his opinion as to what he would have done. But to characterize what somebody else has done as "negligent" is not proper in the Court's opinion, and I ask you not to consider it.
BY MR. SEGAL:
Q Is there any reason that you are aware of, based upon your observations and your knowledge and training and experience, why a competent fingerprint examiner should have limited the dusting to the area the way it was?
A I can't imagine why anybody would do that.
Q Are there any other areas in the master bedroom that attracted your attention because of the fingerprint processing, or lack of fingerprint processing?
A Yes. Both of the bureaus or dressers, whatever the proper term is, had glass tops. The glass tops, instead of being processed from front to rear, side to side, were processed from front to a distance about halfway toward the rear on both bureaus.
Q Is there anything particular about the glass tops that require special attention for fingerprint processing?
A Well, glass is an excellent medium for retaining fingerprints and from reading the testimony, it is my understanding that there was a jewel box on one of those tables or bureaus. There are some unidentified -- I think an unidentified latent palmprint on the jewel box.
If this is unidentified -- a jewel box in a bedroom is not something that every person invited into your house would be expected to touch. If it is unidentified, it seems to me that it represents an opportunity for the processor of the crime scene for fingerprints to have paid special attention and concentration.
Q Are you aware of any reason why --
THE COURT: (Interposing) Let me see counsel at the bench just briefly, will you please.
(Bench conference - unreported.)
THE COURT: Members of the jury, we are going to take a recess until a different hour in the morning. We will convene court tomorrow morning at 10:00 o'clock instead of 9:30. And so we will take our overnight recess now. We will let you retire. Be back at 10:00 o'clock tomorrow morning, please.
Don't talk about the case. Have a good night, a safe trip home and back, and see you tomorrow morning at 10:00 o'clock.
(Jury exits at 5:03 p.m.)
THE COURT: Take a recess until tomorrow morning at 10:00 o'clock.
(The proceeding was adjourned at 5:04 p.m., to reconvene at 10:00 a.m. on Tuesday, August 14, 1979.)
Note from Christina Masewicz: In my opinion, the jewel box referred to should be jewelry box. No correction was made.