MARCH 19, 1999

STATE OF ARKANSAS	PLAINTIFF
VS.	NO. CR-93-450A
DAMIEN ECHOLS	DEFENDANT

HEARING ON RULE 37 PETITION

MARION, ARKANSAS

MARCH 19, 1999

APPEARANCES

FOR THE STATE: BRENT DAVIS
                PROSECUTING ATTORNEY
                P.O. BOX 491
                JONESBOR0, AR 72403

                TODD NEWTON
                ASST. ATTORNEY GENERAL
                JUSTICE BUILDIN6
                LITTLE ROCK, AR  72201
               

FOR THE DEFENDANT: ALVIN SCHAY
                    ATTORNEY AT LAW
                    217 WEST SECOND ST.
                    LITTLE ROCK, AR 72201
                    72472

                    EDWARD MALLETT
                    ATTORNEY AT LAW
                    CHASE BANK BUILDING
                    712 MAIN, SUITE 1600
                    HOUSTON, TX  77007

BEFORE THE HONORABLE: DAVID BURNETT, CIRCUIT JUDGE

BARBARA J. FISHER, C.C.R.
OFFICIAL COURT REPORTER
P. O. BOX 521
PARAGOULD, AR  72451-0521
(870) 236-8034

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1	MARION, ARKANSAS, MARCH 19, 1999, AT 9:30 A.M.
2	DOCTOR FRANK J. PERETTI
3	having been first duly sworn to speak the truth, the whole truth
4	and nothing but the truth, then testified as follows:
5	DIRECT EXAMINATION
6	BY MR. DAVIS:
7	Q.  Will you please state your name?
8	A.  Doctor Frank Joseph Peretti, P-E-R-E-T-T-I.
9	Q.  And, Doctor Peretti, Judge Burnett just swore you in prior
10	to my asking you that first question?
11	A.  -- Yes.
12	Q.  So you know that you're sworn under oath to tell the truth?
13	A. Yes.
14	Q.  Could you describe for the record your current position?
15	A.  I'm Associate Medical Examiner, forensic pathologist, for
16	the State of Arkansas.
17	Q.  Could you briefly relate to the Court your education,
18	training and background that qualifies you for that position?
19	A.  I graduated from medical school in 1984, did my training in
20	anatomical pathology at Brown University from 1985 to 1988.
21	During that interim period I was a Medical Examiner for the
22	State of Rhode Island on a part-time basis.
23	I then left Brown, and I went to the office of the Chief
24	Medical Examiner from 1988 to 1989, did my subspecialty training
25	in forensic pathology. After completing my training, I passed
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1	my qualifying examinations given by the American Board of
2	Pathology in forensic pathology.
3	I was asked to stay on as a staff pathologist at the office
4	of the Chief Medical Examiner of Maryland until August of 1992.
5	In that interim period there I was a nontenured clinical
6	instructor of pathology at the University of Maryland Medical
7	School. I was also an editor for the American Journal of
8	Forensic Medicine and Pathology.
9	I was asked to come to Arkansas in August of 1992 and have
10	been here since.
11	Q.  So you've been a Medical Examiner for the State of Arkansas
12	since August of 1992?
13	A.  Yes.
14	Q.  Since that time, you have worked for the Medical Examiner's
15	office as an Assistant Medical Examiner?
16	A.  Yes.
17	Q.  And have you qualified and testified as an expert in the
18	area of forensic pathology on multiple occasions in the State of
19	Arkansas?
20	A.  Yes, I have.
21	Q.  On numerous occasions, in fact, in front of this Court and
22	this Judge?
23	A.  Yes.
24	MR. DAVIS: Your Honor, at this time we would
25	submit Doctor Peretti as an expert in the field of
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1	forensic pathology.
2	MR. MALLETT: No objection.
3	THE COURT: All right, you may proceed.
4	BY MR. DAVIS:
5	Q.  Doctor Peretti, I'd like to show you what is listed as
6	State's Exhibit 23. Can you identify that for us?
7	A.  Yes, I can. It's my CV.
8	Q.  Is that current containing all the specifics as to your
9	training, education, background, articles that you've written,
10	involvement in educational courses, things of that nature?
11	A.  Yes.
12	MR. DAVIS: Your Honor, at this time we would
13	move for the introduction of State's Exhibit 23.
14	MR. MALLETT: No objection.
15	THE COURT: It may be received without objection.
16	(STATE'S EXHIBIT 23 IS RECEIVED IN EVIDENCE)
17	BY MR. DAVIS:
18	Q.  Doctor Peretti, in your work as Assistant Medical Examiner
19	for the Arkansas State Crime Lab, did you have an occasion to
20	receive the bodies of three eight-year-old boys from Crittenden
21	County, I believe back in May of 1993?
22	A.  Yes.
23	Q.  When were the bodies received?
24	A.  They were received May 6.
25	Q.  And explain to the Court -- at that time, was there more
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1	than one Medical Examiner that performed autopsies there at the
2	Crime Lab?
3	A.  No, it was just myself and Doctor Sturner who was the Chief
4	Medical Examiner.
5	Q.  These cases were assigned to you to do the autopsy and the
6	examination?
7	A.  Yes.
8	Q.  When you received these cases, did you -- at any point did
9	the significance of these cases or the importance of these
10	particular autopsy examinations -- did they receive particular
11	attention or particular emphasis from you?
12	A.  Yes, they did. Because of the nature of the case, I knew
13	it would generate a lot of publicity and news media coverage.
14	Q.  As a result of that, did you go to extra efforts or take
15	extra steps to make sure that your examination was thorough and
16	your documentation of that examination was thorough?
17	A.  That's correct.
18	Q.  Tell the Court when the bodies are received and you first
19	go down to examine them what procedures you used in terms of --
20	after you examined them, is there anybody else you consulted or
21	anyone else you conferred with?
22	A.  Yes. On these cases I consulted with many people -- Doctor
23	Dugan, Doctor Sturner, people from the Trace Evidence Section,
24	the Crime Lab Fingerprint Section.
25	Q.  When you say you consulted with them, at what point did you
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1	think or did you contact Doctor Dugan and can you explain to the
2	Court why that was done?
3	A.  What I did was after the bodies came in, I looked at 'em
4	externally, and I looked for any patterns of injuries and all
5	the injuries that were present on the external aspects of the
6	body.
7	What I did was I was specifically looking for any
8	particular patterns. I didn't see any patterns, for example,
9	that looked like a bite mark. However, what I did was -- just
10	to be overly cautious -- I called Doctor Dugan in -- he is a
11	forensic dentist -- and had him look over all the bodies.
12	Q.  Under your protocol at the Crime Lab, why would you call
13	Doctor Dugan in, or is he normally the one you would refer to if
14	you had questions on the issue of potential bite marks?
15	A.  Yes, if there is a potential bite mark, we call Doctor
16	Dugan in.
17	Q.  Upon your visual examination of the bodies, had you seen
18	anything that you felt was suspicious for a bite mark or could
19	possibly be a bite mark?
20	A.  No.
21	Q.  And again, why then did you call Doctor Dugan in?
22	A.  I was overly cautious, and I wanted him to come in and
23	examine the bodies. There were some areas on the forehead on
24	the side that had a similar pattern to it, and I wanted him to
25	look at it.
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1	Q.  When you called Doctor Dugan in, were you present when he
2	viewed the bodies?
3	A.  Yes.
4	Q.  Did he view one body?
5	A.  He examined all the bodies.
6	Q.  Did you consult there together as he viewed the bodies and
7	you are present -- did you consult with him to see if he saw
8	anything or could point out anything to you that he thought was
9	significant in terms of possible bite marks?
10	A.  Yes, we consulted.
11	Q.  Did he show anything to you on the bodies that he indicated
12	could or might be bite marks in his opinion?
13	A.  No.
14	Q.  At that point when you've gone over them by yourself and
15	then you call Doctor Dugan in, when you go back over them with
16	him, did you see anything at that point on this closer perusal
17	that you thought could or might be a bite mark?
18	A.  I didn't see anything that represented a bite mark.
19	Q.  Were there any specific injuries that you actually pointed
20	to Doctor Dugan and said, I want you to really look at this
21	particular one because this one concerns me?
22	A.  The dome-shaped pattern ones.
23	Q.  When you say "dome-shaped pattern," what are you talking
24	about?
25	A.  Well, it had a pattern of a dome. There was one on the
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1	forehead and one on the right cheek region. There were multiple
2	patterns on the face.
3	Q.  Those were of some concern to you, and you wanted his
4	opinion?
5	A.  Yes.
6	Q.  In addition to Doctor Dugan, who else did you consult with
7	and have examine the bodies?
8	A.  Doctor Sturner, the Chief Medical Examiner.
9	Q.  Why did you do that?
10	A.  Well, there again, the intense news coverage -- I just
11	wanted to do a very thorough job -- dot all my I's and cross all
12	my T's. Doctor Sturner has 30 years of experience. I wanted to
13	ask him if there was anything he would do that I failed to do.
14	Q.  Did he come down there and with you present examine all
15	three bodies while they were there at the Crime Lab?
16	A.  Yes.
17	Q.  Did he make any comment to you or suggestions to you that
18	some of the injuries were possible bite marks?
19	A.  No. Not at all.
20	Q.  Did he suggest to you anything further that you should do
21	in examination for possible bite marks?
22	A.  No.
23	Q.  Now, at some point did you go ahead and perform the full
24	autopsy examination and complete your report?
25	A.  Yes, I did.
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1	Q.  Anything at that point after visual observation -- contact
2	with Doctor Dugan, contact with Doctor Sturner, you perform your
3	autopsy -- anything change regarding your opinion regarding
4	possible bite marks?
5	A.  There was no change in my opinion.
6	Q.  After you perform your autopsy, you prepared your autopsy
7	report, correct?
8	A.  Yes.
9	Q.  Did you go to any extreme measures in this particular case
10	to ensure the accuracy of what was contained in your autopsy
11	report?
12	A.  Well, it took me probably a day and a half to do all the
13	autopsies, and what I did was after I did each autopsy, I made
14	my notes. I dictated the case.
15	After all the cases were dictated, I went downstairs with
16	the report in hand with the bodies and went over each sentence
17	line by line to make sure all the measurements were accurate,
18	that I didn't miss anything or inadvertently say, "right side --
19	left side" -- things like that happen. So I took my report,
20	examined the bodies meticulously and went through the report
21	line by line comparing my notes -- my report -- to the injuries
22	on the body.
23	Q.  Did you do any swabbing of any of the injuries for the
24	purpose of trying to detect or preserve evidence of possible
25	amylase?
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1	A.  No, I didn't.
2	Q.  Why not?
3	A.  First of all, there was no bite mark there. There was no
4	need to do it because it wasn't a bite mark and if it was a bite
5	mark, I still wouldn't have swabbed it because the bodies were
6	submerged in water.
7	Q.  And based on those two reasons, there were not swabbings
8	done to try to detect amylase?
9	A.  That's correct.
10	Q.  Do you think it would have been of any benefit -- number
11	one in your protocol, if you don't see anything that's a bite
12	mark in your opinion and Doctor Dugan is called in and he
13	doesn't see anything that's a bite mark, is there anything in
14	your protocol that would require to you or suggest to you that
15	you should do swabbings for amylase?
16	A.  No.
17	Q.  So I assume after the bodies leave the Crime Lab and you
18	have completed all your reports and you conferred with Doctor
19	Dugan and Doctor Sturner, your opinion at that point is there is
20	nothing there that is evidence of a bite mark?
21	A.  That's correct.
22	Q.  Years later when these proceedings start, you become aware
23	that there is an issue again of the possibility of a bite mark,
24	correct?
25	A.  That's correct.
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1	Q.  Did you again go back and review the autopsy photographs
2	that were taken during the time of the autopsy examination?
3	A.  Yes, I did.
4	Q.  Let me show you what are marked as 8, 9, and 10-M --
5	State's Exhibits -- and ask if you could look at those, Doctor.
6	Do you recognize those photographs?
7	A.  Yes.
8	Q.  Are those photographs of the eight-year-old victim, Stevie
9	Branch?
10	A.  Yes, they are.
11	Q.  Did you go back and examine those particular autopsy
12	photographs again to see if your opinion regarding the
13	possibility of existence of bite marks might change?
14	A.  Yes, I did on multiple occasions.
15	Q.  After examination of those photographs, did you reach any
16	different conclusions?
17	A.  No, I didn't.
18	Q.  Specifically in regard to the injury to the left forehead
19	-- I believe it is -- of Stevie Branch, did you pay particular
20	attention to that injury?
21	A.  Yes, I did.
22	Q.  After looking at and examining that closely, did you
23	formulate an opinion as to whether or not that appeared to you
24	to be a bite mark?
25	A.  In my opinion it is not a bite mark.
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1	Q.  In hindsight, Doctor, in regard to this possible -- the
2	allegations that there's possibly a bite mark here -- in
3	hindsight looking back at what you did in your examination, the
4	people you consulted with, your review of the autopsy photos, is
5	there anything that you think you would have done differently or
6	should have done differently in regard to the issue of possible
7	bite marks in this case?
8	A.  No.
9	Q.  From the time the bodies were submitted to you until this
10	case went to trial, were there occasions in which attorneys --
11	not only for the state but for the defense -- had contact with
12	you in order to review evidence and review your reports?
13	A.  Yes.
14	Q.  And on certain occasions did you keep records to show when
15	certain attorneys by name had contact with you to go over and
16	look at the evidence you had?
17	A.  Yes.
18	Q.  Do you have -- do you know specific dates from those
19	records which attorneys Val Price or Scott Davidson or both
20	appeared at your office to examine materials in your office or
21	to consult with you regarding your exam and reports?
22	A.  I have the dates here, yes.
23	Q.  What are those dates?
24	A.  July sixth --
25	MR. MALLETT: Excuse me. I realize we're going
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1	to have an opportunity in cross examination, but to
2	save time, could I ask him to identify the attorneys
3	and if the records reflect it, also the period of the
4	visits, the length of the visits?
5	MR. DAVIS: Okay.
6	BY THE WITNESS:
7	A.  I had a brief meeting with Val Price on July 6, 1993, from
8	12:00 P.M. to 12:30. Then I had a meeting on February 9, 1994,
9	with Mr. Price. Is he one of the attorneys?
10	Q.  Yes. Do you know the length of that meeting?
11	A.  No. Then I had a meeting with Mr. Ford on February 9th,
12	1994, at 10:00 A.M. and I had a meeting with Mr. Price and Mr.
13	Davidson again on February 22nd, 1994.
14	I had other meetings. I don't have the notes here. At
15	times I'm bad at writing things down, but I know one meeting all
16	the attorneys were there, and it took all afternoon because I
17	distinctly remember we were at the big conference table. I had
18	all the photos laid out, all the autopsy reports. We went over
19	-- we took each autopsy report and looked at each photograph
20	individually, and it took all afternoon. It was probably a
21	three or four hour meeting.
22	Q.  You said you had all the attorneys -- all the defense
23	attorneys?
24	A.  All the defense attorneys.
25	Q.  That is a meeting that is not reflected in the three
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1	meetings with Mr. Price and Mr. Davidson that you testified to?
2	A.  Correct.
3	Q.  So on at least four occasions you would have had contact
4	with Mr. Price, Mr. Davidson, or both to review your findings
5	and evidence in this case?
6	A.  And multiple telephone conversations.
7	MR. DAVIS: Pass the witness, Your Honor.
8	CROSS EXAMINATION
9	BY MR. MALLETT:
10	Q.  Good morning, Doctor Peretti.
11	A.  Good morning.
12	Q.  I notice that you attended -- ah, university for
13	undergraduate training at the University of St. Louis?
14	A.  That's correct.
15	Q.  Which is in St. Louis, Missouri?
16	A.  That's correct.
17	Q.  And that you obtained your degree -- your medical doctor
18	degree from a university in Milan in the country of Italy, which
19	is in Europe?
20	A.  Yes.
21	Q.  I have general knowledge that I think most people share
22	that when people become a doctor in the United States of
23	America, they take an oath that is referred to as the
24	Hippocratic Oath. Are you familiar with that?
25	A.  Yes, I have taken that.
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1	Q.  What is the Hippocratic Oath?
2	A.  Hippocratic Oath is an oath physicians take saying you will
3	abide by all the -- abide to the practice of medicine. I can't
4	recall it.
5	Q.  Does it sort of jog your memory a little bit to suggest to
6	you that as a part of that oath you promise that you will help
7	your patients and not harm them?
8	A.  That's correct.
9	Q.  You are a physician and faithful to that oath?
10	A.  Yes.
11	Q.  I recall that in your testimony in the court there was a
12	question raised relating to your opinion and because of the
13	leading nature of the question, you corrected the questioner and
14	on page 001897 you stated in relevant part -- "I am not a
15	prosecution witness" --
16	A.  Excuse me. What page is that? I have that in here. I
17	want to refer to that.
18	Q.  At the bottom there is a stamp which we call a Bates stamp.
19	A.  Down here. Okay.
20	Q.  At the top right it says 1116 and the lower bottom 001897.
21	A.  Okay.
22	Q.  If you want to look at the top right corner, it would be
23	page 1116.
24	A.  Okay.
25	Q.  You're a very careful doctor, aren't you?
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1	A.  Yes.
2	Q.  Reading from the third line up from the bottom. "I just
3	would like to clarify one fact for the Court that I am not a
4	prosecution witness. The Crime Lab is an independent agency.
5	We don't work for the defense. We don't work for the
6	prosecution. We're an independent agency. So I would like to
7	clarify that." That's what you said.
8	A.  Yes.
9	Q.  And that's true.
10	A.  Yes, it is.
11	Q.  As a physician, you are certainly engaged in the field of
12	science?
13	A.  Yes.
14	Q.  And to some extent as to some opinions -- some matters in
15	which you're called upon to express opinions, it may be said
16	that you are also in a field of art; that is, in which science
17	is not absolutely certain. Fair statement?
18	A.  Fair statement.
19	Q.  One of the things that you do as an independent scientist
20	and physician is to allow counsel to meet with you as you did in
21	this case?
22	A.  That's correct.
23	Q.  Doctor Peretti, do you ever make mistakes?
24	A.  Oh, everybody makes mistakes.
25	Q.  In the context of your work as a physician and in forming
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1	opinions and making judgments and expressing opinions, from time
2	to time using the benefit of hindsight you acknowledge that you
3	have made mistakes?
4	A.  Using the benefit of hindsight, yes.
5	Q.  For example, in this case there was a question raised at
6	the trial of the case about what would be a reliable estimate of
7	the time of death. You should recall that body of testimony.
8	A.  Oh, yes.
9	Q.  You, of course, in preparation for these hearings reread at
10	least some of that testimony?
11	A.  That's correct.
12	Q.  You know as you sit here today that as a rebuttal witness
13	on that particular issue, the prosecution called another
14	physician, a Doctor Jennings?
15	A.  That's correct.
16	Q.  You know Doctor Jennings?
17	A.  Yes.
18	Q.  You think he is a good doctor?
19	A.  Yes. He is a hospital pathologist.
20	Q.  Right. But he is a licensed physician practicing in your
21	community -- a man who --
22	A.  I have respect for him, yes.
23	Q.  He had an opinion that was different than the opinion to
24	which you testified.
25	A.  That's my understanding.
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1	Q.  Have you read his testimony?
2	A.  No.
3	Q.  Let me -- if I may indicate to you that in his testimony he
4	made reference to having studied a book or reviewed a book
5	before he testified, and the book was called Forensic Pathology
6	and the author was Bernard Knight. Are you aware of the
7	existence of such a book?
8	A.  I have a copy of it.
9	Q.  Is that a book that is considered within the field of
10	forensic pathology as a useful and reliable authority?
11	A.  It's one of the reference books.
12	Q.  That pathologists often use?
13	A.  Forensic pathologists, yes.
14	Q.  You're a forensic pathologist?
15	A.  Yes.
16	Q.  Used as a reliable authority?
17	A.  Yes.
18	Q.  Is it a surprise to you to hear that materials from that
19	book were read to the jury in the state's efforts to offer
20	rebuttal testimony in the original trial, or is that already
21	something that you know?
22	A.  I didn't know the scope of his testimony. I mean, I'm not
23	familiar with what he said. I didn't read his testimony.
24	Q.  You do know that the book to which I have called your
25	attention is a standard reference book in the field of
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1	pathology?
2	A.  One of many, yes.
3	Q.  And in your library?
4	A.  Yes.
5	Q.  Does this look like that book, Forensic Pathology, by
6	Bernard Knight?
7	A.  This is a newer edition. I have the first edition.
8	Q.  Any reason to believe that the newer edition is inferior to
9	your edition?
10	A.  No.
11	Q.  Okay. You said that because of the nature of the case --
12	and I think you may have made some reference to the fact of the
13	interest in the case or there would be publicity about the case
14	or both. This is a case on which you used extra care.
15	A.  That's correct.
16	Q.  But I take it that the citizens of Arkansas can rest
17	comfortably that you're thorough in every case?
18	A.  Try to be.
19	Q.  Try to be careful in every case?
20	A.  That's right.
21	Q.  The quality of justice to the public insofar as your
22	contribution is concerned is of the highest order in every case
23	to the best of your ability?
24	A.  That's correct.
25	Q.  One of the things that was extremely important to you as
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1	you were completing your autopsy report, which I believe you
2	submitted to Doctor Sturner for his review and approval?
3	A.  He signed it, yes.
4	Q.  You not only wrote it, but you went back down and
5	re-examined the victims and compared your written report to the
6	victims?
7	A.  That's correct.
8	Q.  Under Rule seven-o-three eighteen I believe we're permitted
9	to offer as evidence words from a published treatise called to
10	the witness' attention that is generally accepted, and in that
11	light I'd like to read briefly, if the Court will permit, from
12	page 34 of the Second Edition of Forensic Pathology by Bernard
13	Knight.
14	THE COURT: First you need to ask him -- well,
15	you did ask him if he was familiar with that treatise.
16	Is that what you're reading from?
17	MR. MALLETT: Yes.
18	THE COURT: All right. Go ahead.
19	BY MR. MALLETT:
20	Q.  "Equally important as the autopsy itself is the report that
21	the pathologist provides for whoever commissioned the
22	examination. An autopsy is of little value if the findings and
23	opinion of the forensic pathologist are not communicated in the
24	most lucid and helpful way. The report is an integral part of
25	the procedure and should receive as much attention as any
	146
1	physical procedure in the autopsy room." You agree with that,
2	don't you?
3	A.  Yes.
4	Q.  We rely on reports for a variety of reasons. One of them
5	is to help you remember at the time of trial about activities
6	conducted when you did the autopsy?
7	A.  That's correct.
8	Q.  I suppose there may be situations from time to time when a
9	pathologist is called upon to testify from the report of another
10	pathologist because the original pathologist is not available.
11	That happens from time to time, doesn't it?
12	A.  Yes.
13	Q.  We wouldn't just turn everybody loose that was accused of
14	murder if the pathologist died in a car wreck?
15	A.  That's correct. Hope not.
16	Q.  Hope not. So the report as stated by Doctor Knight is just
17	as important as doing the autopsy because of the record it
18	provides?
19	A.  That's right.
20	Q.  On page 34 Bernard Knight continues: "The autopsy report
21	is a permanent record of the findings and is especially vital
22	for medical/legal purposes when every word may be dissected in a
23	court of law months or even years afterwards and when all
24	recollection has been driven from the mind of the pathologist by
25	hundreds of subsequent autopsies." You agree with that, don't
	147
1	you?
2	A.  I would agree with that.
3	Q.  In your painstakingly thorough report -- the report that
4	you not only prepared but that you reviewed a second time, the
5	report that you reviewed line by line before you presented it to
6	Doctor Sturner for his approval -- there is not a single word
7	referencing your calling Doctor Dugan in to perform an
8	examination of these victims, is there.
9	A.  We never do that in our reports. We never list the experts
10	that we called. Never did in Maryland, never did in Rhode
11	Island, we don't do it here.
12	Q.  What was my question?
13	A.  About listing the experts.
14	Q.  In your report that is painstakingly thorough and that you
15	went over line by line a second time after it was prepared,
16	there is not one word of reference to calling in Doctor Dugan.
17	A.  That's correct.
18	Q.  By the way, can you tell me what time of day you received
19	these victims for examination on May 6th?
20	A.  What time they were logged in the Crime Lab?
21	Q.  What time you began to examine them.
22	A.  I examined them -- I believe the 6th was a Wednesday -- and
23	- I started first thing in the morning.
24	Q.  Does the report tell what time you started?
25	A.  We don't put on the autopsy reports the time we started.
	148
1	They were the first cases in the morning. I generally start at
2	7:30.
3	Q.  So if my question is does the report tell what time you
4	started, your answer is, no, it doesn't?
5	A.  That's right.
6	Q.  Does your report tell what was the temperature of the
7	bodies when you commenced your examination?
8	A.  No. We don't take body temperatures.
9	Q.  Why did you call in Doctor Dugan?
10	A.  For thoroughness.
11	Q.  What is his title with the Arkansas State Crime Lab?
12	A.  Well --
13	Q.  Or does he have a title?
14	A.  I always called him the forensic odontologist.
15	Q.  Does he have any official title that you're aware of?
16	A.  Well, he's our only odontologist. I know he uses the word
17	"chief," but maybe that's the wrong title to use.
18	Q.  That may be a self-appointed title?
19	A.  Right.
20	Q.  Probably is?
21	A.  Well, seeing he was the only one, I -- he was there before
22	I --
23	Q.  There's not an assistant odontologist --
24	A.  No.
25	Q.  -- or deputy odontologist --
	149
1	A.  No.
2	Q.  -- or tenderfoot odontologist?
3	A.  No. No.
4	Q.  And you call him in when there is evidence that you see
5	before you that -- on which your opinions might be benefited by
6	his opinions and observations?
7	A.  I looked. I didn't think they were bite marks, but I
8	wanted him to come in and look.
9	Q.  You wanted a second opinion.
10	A.  That's right. And a third opinion.
11	Q.  You wanted a third opinion.
12	A.  Right.
13	Q.  Because those were some unusual marks, and it could be
14	another person would have a different opinion than your first
15	opinion.
16	A.  We looked at -- when I called Doctor Sturner and Doctor
17	Dugan, we looked at everything. We didn't focus just on those
18	marks.
19	Q.  Is it possible that a second opinion would be a different
20	opinion than your first opinion?
21	A.  Well, if the odontologist came in and said to me, these are
22	bite marks, I wouldn't argue with him.
23	Q.  Thank you. In the field of medicine, which is both art and
24	science, it is possible for one expert like yourself to hold an
25	opinion and another person with comparable training and
	150
1	experience to hold a different opinion, and both of you to be
2	telling the truth the best that you can see it?
3	A.  I would agree with that.
4	Q.  I notice that in your autopsy report you detected the
5	presence of larvae in the left orbit of one of the victims. Do
6	you recall that finding?
7	A.  Yes.
8	Q.  Does your report make any reference to preserving any of
9	those specimens of larvae?
10	A.  I didn't preserve them.
11	Q.  Does your report make any reference to your decision to
12	preserve or not preserve?
13	A.  No, it doesn't.
14	Q.  Are you trained as an entomologist?
15	A.  No.
16	Q.  In Bernard Knight's book on page 76 he writes -- this is
17	under the title of the Entomology of the Dead and Postmortem
18	Interval -- "This is a highly specialized subject and when the
19	issue of time since death is important such as a criminal
20	investigation, it is essential that whenever possible the
21	pathologist has the assistance of an entomologist with forensic
22	experience as in forensic toxicology and serology. When serious
23	medical/legal issues are at stake, there is no place in forensic
24	entomology for the occasional expert who dabbles in the subject
25	when the opportunity arises." Do you agree with that?
	151
1	A.  I would agree at times you need an entomologist.
2	Q.  Doctor Knight writes on the same page 76 under the same
3	heading, "Different species of arthropods colonize the corpse at
4	different periods after death. In addition some species
5	including the most common blowflies pass through complex life
6	cycles that can be used to determine at least the minimum time
7	since death by studying the stage of maturation of the
8	insects."
8	Continuing, "These methods have been used since the middle
9	of the Eighteenth Century." Do you agree with that?
10	A.  Entomologists do do that. Yes, I would agree with that.
11	MR. MALLETT: Thank you very much.
12	(WITNESS EXCUSED)
13	DOCTOR WILLIAM STURNER
14	having been first duly sworn to speak the truth, the whole truth
15	and nothing but the truth, then testified as follows:
16	DIRECT EXAMINATION
17	BY MR. DAVIS:
18	Q.  Will you please state your name?
19	A.  William Quenton Sturner, last name, S-T-U-R-N-E-R.
20	Q.  It's Doctor Sturner?
21	A.  Yes.
22	Q.  You're the Chief Medical Examiner for the State of
23	Arkansas, correct?
24	A.  Yes, sir.
25	Q.  How long have you held that position?
	152
1	A.  This month starts my eighth year.
2	Q.  So that means you started back in 1991?
3	A.  '92 early in the year, Counselor.
4	Q.  So you were the Chief Medical Examiner in May of 1993?
5	A.  Yes, sir.
6	Q.  Who else was working as an Associate Medical Examiner at
7	that time?
8	A.  Doctor Frank J. Peretti.
9	Q.  There were the two of you that were responsible for
10	performing autopsies regarding all cases submitted to the
11	Medical Examiner's Office in Arkansas at that time?
12	A.  Yes, sir.
13	Q.  I have what is marked as State's Exhibit 24. Can you
14	identify that for us, please, sir?
15	A.  Yes, that is a Curriculum Vitae, or resume, of my education
16	and work current to June of 1998.
17	Q.  Okay. Is that accurate and does it contain -- the listings
18	on here are they up-to-date and accurate as to your education,
19	training, writings, things of that nature?
20	A.  Up to June 1998, yes, sir.
21	MR. DAVIS: Your Honor, at this time I would move
22	for the introduction of State's Exhibit 24, the
23	doctor's CV.
24	MR. MALLETT: May I have one minute? I have not
25	seen it.
	153
1	MR. DAVIS: (Handing)
2	MR. MALLETT: (Examining) No objection.
3	THE COURT: It may be received without objection.
4	(STATE'S EXHIBIT 24 IS RECEIVED IN EVIDENCE)
5	BY MR. DAVIS:
6	Q.  If I may, I'd like to draw your attention back to May of
7	1993 when there were -- bodies of three eight-year-old boys were
8	found here in Crittenden County and transferred to the Arkansas
9	State Medical Examiner's Office for the purposes of having an
10	autopsy performed. Were you familiar with the existence of that
11	case?
12	A.  Yes, by telephone. I happened to be over in Memphis
13	inspecting the Medical Examiner's Office of Shelby County, which
14	includes Memphis, and I was called at some point in time, I
15	believe around noontime and informed of that by Doctor Peretti
16	and/or his staff.
17	Q.  When you say you were in Memphis inspecting the Medical
18	Examiner's Office, is that something you're on a board or some
19	group that inspects and judges standards of other Medical
20	Examiner's Offices?
21	A.  Yes. I'm one of the inspectors for the parent group which
22	is called the National Association of Medical Examiners, and
23	they have an inspection and accreditation program. I happened
24	to be chosen to go to Memphis, and I did so the night before
25	this case.
	154
1	Q.  When you get a call from the Medical Examiner's Office that
2	these bodies have been sent down for purposes of autopsy, what
3	do you do then?
4	A.  Well, in this case I finished my work posthaste and drove
5	back to Little Rock to the Medical Examiner's Office and
6	reviewed the bodies with Doctor Peretti.
7	Q.  Was Doctor Peretti the Medical Examiner that was assigned
8	to actually perform the autopsies and write the report?
9	A.  Yes, sir.
10	Q.  Is it unusual in the nontypical case for someone such as
11	Doctor Peretti to consult with you and ask you to view the
12	bodies and check his findings and report?
13	A.  I'd say it's the usual course of events.
14	Q.  Did you view all three of the bodies while they were there
15	at the Crime Lab?
16	A.  I viewed all three while Doctor Peretti went over the
17	findings with each individual body.
18	Q.  So he would go over the findings he had made, and you
19	viewed the bodies to make sure that his findings in his report
20	are consistent with what you see?
21	A.  Yes, sir.
22	Q.  There was nothing in any of his reports referring to
23	anything that appeared to be a bite mark or that might be a bite
24	mark. Was that consistent with what you saw when you looked at
25	those bodies?
	155
1	A.  None whatsoever, and it was perfectly consistent with what
2	I saw.
3	Q.  With your years of experience, training and background,
4	when you examined the bodies and heard Doctor Peretti's report,
5	you saw nothing there that would alert you to think that
6	something -- some injury on the bodies of these three young men
7	were bite marks.
8	A.  I did not.
9	Q.  Are you familiar with Doctor Kevin Dugan?
10	A.  Yes, I am.
11	Q.  What work does he do with the Crime Lab?
12	A.  He's a forensic odontologist, or dentist, and performs
13	identification procedures and other dental work on a consultant
14	basis for the State Crime Lab.
15	Q.  Is he the one that y'all refer to when you have a situation
16	where you need some added expertise in the area of possible bite
17	mark or bite mark identification?
18	A.  We would. Yes, sir.
19	Q.  And did you know if he was consulted in this case?
20	A.  I found out about it, and I may have known at that time.
21	It just doesn't come clear to me, but I would presume that he
22	would be.
23	Q.  In terms of the Crime Lab at that time, the proper protocol
24	in order to get additional expertise in the area of possible
25	bite marks would be to consult Doctor Dugan and have him view
	156
1	the bodies?
2	A.  Yes, sir.
3	MR. DAVIS: Pass the witness, Your Honor.
4	CROSS EXAMINATION
5	BY MR. MALLETT:
6	Q.  Good morning, Doctor.
7	A.  Good morning, Counselor.
8	Q.  Thank you for traveling so far.
9	A.  That's quite all right.
10	Q.  Your words are --
11	A.  I'm pleased to do so, Counselor.
12	Q.  Your words are very important. We thank you for --
13	A.  That's quite all right.
14	Q.  I notice that you are a graduate of the University of St.
15	Louis in St. Louis, Missouri.
16	A.  That's correct, Counselor, yes.
17	Q.  I think that's Doctor Peretti's alma mater also, isn't it?
18	A.  I don't believe so. I think he spent time there. He also
19	spent some time in other universities as well.
20	Q.  You obtained your degree as a physician from a University
21	in London. Is that correct?
22	A.  Well, that was a degree in what is called the Society of
23	Apothecaries. It's a diploma in medical juris prudence.
24	Q.  Where did you get your medical doctor degree?
25	A.  St. Louis.
	157
1	Q.  You have known and worked with Doctor Peretti for some
2	years?
3	A.  I have known him since the time that I had been in Rhode
4	Island, yes, sir.
5	Q.  And had known him as a good and faithful colleague in Rhode
6	Island and then again as your subordinate there in the State of
7	Arkansas?
8	A.  Following four years of intensive training in Baltimore at
9	the State Medical Examiner's Office, yes.
10	Q.  And among the things that you know is that Doctor Peretti
11	is a good and thorough examiner of a deceased person for
12	purposes of forming his own opinions of the manner and cause of
13	death?
14	A.  I certainly think so.
15	Q.  All right. And you also know him to be a good, thorough
16	report writer?
17	A.  Indeed.
18	Q.  And you sign off on his reports?
19	A.  We sign off on each other's reports, Counselor.
20	Q.  And you believe and know from his experience that his
21	reports contain the important work that he did?
22	A.  Indeed.
23	Q.  And the important observations that he made.
24	A.  That's a fair statement, yes.
25	Q.  Opinions that he reached?
	158
1	A.  Yes. Of course.
2	Q.  And the consultants that he involved?
3	A.  Yes. But that may or may not be on his particular report
4	-- but, yes, fair statement.
5	Q.  You would expect that to be on a good and thorough report?
6	A.  It usually is, Counselor, yes.
7	Q.  You have no independent recollection of Doctor Dugan being
8	there or not being there. It just suits your memory that he may
9	have been there.
10	A.  Well, I came back, at my recollection, around 3:00 or 4:00
11	in the afternoon, and I think Doctor Peretti and I were the only
12	doctors in the office, and we were more concerned about the
13	bodies themselves than who was there or who wasn't there -- at
14	least I was.
15	Q.  So Doctor Dugan was not there when you came back?
16	A.  I don't believe so, no.
17	Q.  Take it from me that Doctor Peretti has testified on the
18	trial transcript on page 1121 that an estimate of the time of
19	death that is reasonable is some time between 1:00 A.M. and 5:00
20	A.M. Would you have any reason to quarrel with that?
21	A.  I haven't read that, and I don't know if that's the case.
22	If you're telling me that's in the transcript, then that's what
23	he testified to. Whether I quarrel with it or not is not
24	something that I'm prepared to say because I haven't gone over
25	those cases as far as postmortem interval is concerned. So I'm
	159
1	not going to get into that, Counselor. That is a little bit too
2	much for me.
3	Q.  You do from time to time in your office have need for one
4	pathologist to testify from the report of another pathologist?
5	A.  Yes, indeed.
6	Q.  You find that Doctor Peretti's opinions are opinions in
7	which you have confidence?
8	A.  Yes, of course.
9	Q.  And on which you take action?
10	A.  Of which I am able to sign, countersign, as you suggested
11	before and to testify if he's unavailable. Those are two areas
12	where I would take action.
13	Q.  And you would rely on his opinions --
14	A.  Yes.
15	Q.  -- in forming your opinions?
16	A.  Well, indeed. They're probably the same opinions.
17	MR. MALLETT: Thank you.
18	(WITNESS EXCUSED)
19	MR. DAVIS: The state would rest in terms of
20	evidence.
21	MR. MALLETT: We have nothing further today, Your
22	Honor.
23	THE COURT: Y'all want to give me written briefs
24	instead of me having to listen to your arguments?
25	MR. DAVIS: I think that would be preferable,
	160
1	Your Honor.
2	THE COURT: It would sure be preferable to me.
3	How much time do you want? Thirty days?
4	MR. MALLETT: If it please the Court, it occurred
5	to us in consultation with one another that not only
6	is it our burden, but after the submission of our
7	writing we have identified the issues to which the
8	state needs to respond and --
9	THE COURT: You're going to ask me can you reply
10	to them?
11	MR. MALLETT: That would be preferable but
12	failing that request, I would request that we have 45
13	days, Your Honor, from the time we receive a
14	transcript from the court reporter for which we'll
15	make arrangements today.
16	THE COURT: Do y'all have any problem in giving
17	simultaneous briefs?
18	MR. MALLETT: We do not, Your Honor.
19	THE COURT: Or arguments, I guess, technically.
20	By the time y'all get through, it will probably be a
21	brief.
22	MR. DAVIS: Your Honor, Todd will be the one who
23	handles that end of it, but I think the state's brief
24	will be in response. It's their burden, and they're
25	going to put forth why they've met their burden --
	161
1	THE COURT: So you want to respond.
2	MR. DAVIS: We want to respond. If the Court is
3	required to rule within ninety days and they have
4	forty-five days to do theirs, that creates the dilemma
5	that if we are given an equal amount of time, the
6	Court will have to rule on the same day --
7	THE COURT: I'm going to give you thirty days and
8	then thirty days. And then fifteen if you want to
9	briefly reply to their --
10	MR. MALLETT: Can we have that begin when we
11	receive a transcription of the testimony of these
12	proceedings? We only have two days that are not yet
13	completed, and one of them is a very short day.
14	THE COURT: You're just talking about yesterday
15	and today that you haven't been given?
16	MR. MALLETT: That's correct.
17	THE COURT: That will be fine.
18	MR. DAVIS: The question I have, Your Honor, is
19	the ninety day clock starts to tick as of the
20	conclusion of this hearing. So obviously it's going
21	to be real important --
22	THE COURT: I guess y'all are gonna want me to
23	read 'em, not just throw them up against a wall. So I
24	don't see that that will be any big problem. How many
25	pages do you expect them to be? Something that I
	162
1	could read in twenty or thirty minutes?
2	MR. MALLETT: I don't think my writing will be
3	any longer than my cross examination. It's Mr. Davis
4	that --
5	THE COURT: Well, I can handle that. I don't see
6	any problem. If y'all don't get 'em in, I'll just
7	enter a ruling.
8	MR. DAVIS: Your Honor, way back -- I believe it
9	was probably the first day of these hearings -- there
10	was a packet of materials that were submitted as an
11	exhibit and I don't know if it was conditional, but
12	there were newspaper articles -- theoretically all the
13	newspaper articles that appeared -- and he's gone
14	through some of those and I think some of them are
15	duplicates or repetitive, things of that nature.
16	And I know that when they were submitted, Mr.
17	Mallett gave us a copy of 'em and said, here you can
18	go through these since you haven't seen these before
19	and determine if you have any problems with them.
20	We do have some problems with those. I don't
21	know if they were actually received as an exhibit or
22	not.
23	THE COURT: Barbara can tell us what the exhibits
24	were. I remember you bantering them around. I don't
25	know if they were ever offered or received. Were
	163
1	they?
2	THE REPORTER: They were received.
3	MR. DAVIS: I know at the time we were given a
4	copy and were advised that we could go through them to
5	see if --
6	THE COURT: What would you be objecting to in an
7	exhibit I received -- and I guess you tendered them
8	just to show the weight and amount of pre-trial and
9	coverage of the case.
10	MR. MALLETT: I think the Court made some comment
11	acknowledging that this was a well-publicized case.
12	THE COURT: Well, there isn't any question about
13	that.
14	MR. MALLETT: If there is a duplication, of
15	course, we are a little embarrassed because we don't
16	want to make the state carry unnecessary paper around,
17	but there's no harm to a redundancy. I apologize if
18	we've copied the same page twice.
19	THE COURT: What is your objection?
20	MR. NEWTON: You're talking about putting in the
21	record, and you can see by all the tabs there's a
22	bunch of duplications. I think it's a difference in
23	-- if we were only talking about a couple, it probably
24	wouldn't be an objection, but all these tabs indicate
25	they're either duplicates or things that happened
	164
1	after trial and to represent that this is a
2	representation of what the media -- the publicity was
3	and have duplicates and also things that occurred
4	after the trial, you're talking about a record for
5	later on --
6	THE COURT: I don't see that that is going to be
7	a major issue for this Court. Now if you want it for
8	some later purpose, it might be. So y'all resolve
9	that.
10	MR. MALLETT: I would conclude by saying that if
11	the dates are on the articles, then --
12	THE COURT: Do you have any objections to them
13	purging duplications, and do you want to review it
14	before it's accepted?
15	MR. MALLETT: We have no objection to purging
16	duplications. I think it's an exercise that would be
17	the greatest burden on the court reporter, but if they
18	insist, that's certainly nothing we could oppose.
19	THE COURT: Why don't you go through 'em and
20	excise those that are duplicates and let them have a
21	copy of the finished product and also a copy of those
22	that you've removed.
23	MR. DAVIS: Your Honor, also those that are post
24	trial -- because I recall the reason those were
25	submitted was to show -- or be evidence of publicity
	165
1	that could have influenced potential jurors prior to
2	trial, and since some of these articles are ones that
3	were printed after trial, those obviously wouldn't
4	have any relevance.
5	MR. MALLETT: I really believe the Court is able
6	to look at the dates of something that is published
7	and remember the date of the trial, and I think
8	excising the duplicates is a workable resolution to
9	the problem they've raised and suggest we do it that
10	way.
11	THE COURT: Redact the duplicates and give 'em to
12	them and if you've got any objection to that -- so
13	I'll allow you to modify the exhibit to the extent
14	that you're going to remove duplicates as well as
15	matters that might have been raised post trial. Any
16	objection?
17	MR. MALLETT: No, sir.
18	THE COURT: I'll give you an opportunity to
19	review both what was removed and the exhibit as it
20	will be tendered -- or received. Anything else?
21	The problem will be giving it to the court
22	reporter in the final stage -- unless you're gonna
23	trust 'em. I assume you're gonna want to look at the
24	final product.
25	MR. NEWTON: It won't take five minutes, your
	166
1	Honor. I've already got them tabbed.
2	MR. MALLETT: We trust Mr. Newton, Your Honor.
3	(Laughter)
4	THE COURT: The court reporter says you can do it
5	right now before you leave since it's here.
6	All right, if that's it, court will be in recess.
7	(PROCEEDINGS CONCLUDED)

May 1998	June 1998	October 1998	March 1999
May 5, 1998	June 9, 1998	October 26, 1998	March 18, 1999
	June 10, 1998	October 27, 1998	March 19, 1999
		October 28, 1998