FRANK CARSON et al 12-12-2017 pm…….

Judge rules on soil expert

By Marty Carlson

12-12-2017


The afternoon session started about 1333 hrs. with Percy Martinez continuing his cross examination of Mr. Heimle, the Department of Justice criminalist.

Percy Martinez asked about surface changes and things of that nature is what he was looking for, and is that because of his education prior to or after reading the book about soil impressions and surfaces. He stated he read the book about one or two years ago and that was after the pop and cork investigative process.

He said he used a tape measure to measure the dimensions of the hole they were digging, and there were three played people included in the dig. The dig consists of using shovels and a pic with two sides one being flat and 1 being pointed. He stated that the weather was hot, it was during August and it took for or five hours to dig the hole, but that was with many breaks with each digging one in a time. He stated that he did not know if there were any sprinklers in the area, but he did do a visual look, but generally a cursory look. He stated the darker soil was more course than the rest of the soil and he did no testing in the rest of the yard, only where Woody pointed out.

Mdm. Dist. Atty. then began redirect and attempt to rehabilitate this witness. She asked him why no core sample was taken, and he stated that the Department of Justice did not have equipment to take a core sample. He also stated that core samples are done for only when a body is suspected present. He stated they are unable to do is prove that a whole was Doug there, and all trace evidence was collected. The evidence was taken to the DOJ, but no DNA sampling was done due to the period of over three years.

He stated that the blood deteriorates and there were no visual indicators of the being present. Dark soil is not an indicator of blood. He also noted that the body was allegedly placed in a tarp and that reduces the chance of fluid in the soil. He noted the ground surface tends to change with the climate and the seasons and it with a three-year period the soil will compact and degrade.

He stated he began digging immediately after Robert Woody arrived around 11:40 AM and he finally was done that evening around 5:30 PM. He was also asked about a conversation with Steve Jacobson, Kirk Bunch, and Marlisa Ferreira, and he stated he did not recall.

He talked about his excavating experience and methods were learned with the LA corners office on that 40-hour program, and with Fresno anthropologists and through reading literature. He stated the methods do not change whether there’s a body present or not. The Department of Justice did not call cadaver dogs out.

Jai Gohel asked again if you collected soil samples for DNA testing, he stated he did not. When asked what the procedures are he said to put the soil samples in sealed bags, to avoid corrosion, and to be safe for testing.

Attorney Hahn stated Robert Woody made a statement that he made a hole over a garbage hole and looking at the photos can he tell the density and he said no.

Percy Martinez inquired about the base of the whole and it had not been previously disturbed, previous holes apparently had been 7 to 9 feet but this whole was significantly harder and not near as deep.

Judge Zuniga asked a few questions about what he learned in the classes about techniques and gravesites. He said it’s the difference between human bones and animal bones the documentation of evidence and anthropology.

At this point the witness was excused off the stand and asked to wait outside, and judge Zuniga then asked Mme. Dist. Atty. what area that she wants him to be qualified in. And asking if the district attorney plans his testimony as this being the burial site.

Marlisa Ferreira said he’s going to be qualified for excavation and exhumation, regarding burial sites. She also said that he will testify that a hole was there.

Mme. DA stated that he will be talking specifics of the soil, density, the use of the T-bar, and his observations. He is unable to date the whole. But he is qualified with his training and his reading of literature and he has trained with qualified people, namely Fresno anthropologists in the Los Angeles corners office. Not to mention Robert Woody took him to the right area.

Jai Gohel argued this criminalist is totally unscientific and vague in the information there is nothing expert and he had never used anything that was scientific nor had testified in that expert previously, nor knew of anyone else that testified as an expert in this area. He stated there is no probative value to what he must add, in addition the report that was written regarding his inspection was documented seven months later after the preliminary hearing had started. He stated the photos look like a grave but there are many other areas in the yard that were never looked at.

Attorney Hans argued that the witness should not be allowed as the district attorney wants a simple opinion about a previous whole due to the soil being compressed. But he is not an expert, nor has he talked to anybody with expert training. Using his body weight as an indicator of soil compression is not scientific in the defense would be unable to challenge him probing the ground based on his body weight. In addition, he took a long time to write his report, there is no foundation and he is unable to cross which makes a due process violation.

Percy Martinez argued that this witness is giving a layperson’s opinion, there is no scientific opinion or testing. The backhoe previously testified to in a deep well did not compare to this situation and a baby found in the yard with body fluids in it. He can only say there was a whole but no other scientific information. It was unknown to the witness the aging of the whole and soil had no value in testing. All they did was dig a hole to see how deep it was.

Marlisa Ferreira argued other than being no human remains the surface changes and methods can be noted, and it is no different. She stated there was a T-bar used as a tool in the witness did use proper methods as he was taught. He also documented everything with pictures. He talked about the layers in the density of the hole in the walls, and the environment can affect the site. She also noted the body was moved through 3 different sites.

The witness stated that it was his method to disprove the theory and he was unable to do so. She also noted that there was a body at the scene there would be nothing different that would be done by this witness.

Jai Gohel added all he could do is say that there was a whole, he cannot say there was a burial site.

Percy Martinez added anyone can see that a hole was there as anyone can see a mound of loose or soft dirt. No one can say apparently that was a burial site.

Judge Zuniga started reading from Justice Simons evidence book as to qualifying as an expert. Even though the credentials are not clear on methodology, due process argument does not work. Defense can have their own expert. And he said he does have qualifications as to a hole. But the district attorney or the witness cannot call it a burial site only a whole that has been there previously.

That was the judge’s ruling on that 402 hearing in next they were going to some more of the pictures that I have no information on, so I left the courtroom about 3 o’clock and headed home.

Court to be continued tomorrow at 9:30am.

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6 thoughts on “FRANK CARSON et al 12-12-2017 pm…….

  1. they keep saying the methods do not change if there is a body in the ground or not , but one of the first things the “expert” states here is that they only do core samples if there is a body present … is that not a change in their methods ? and of course they dug up an area that is roughly the size and shape of a coffin so the d.a. can show the jury a picture of what looks to be a grave , not very often but once in awhile im somewhat impressed by how slick they are at manipulation of the facts…ive heard the term “grave site ” quite a few times in the past few days …see how that works ?

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    • I attempted to post earlier but apparently it did not go through. What I said is that if I understand the facts, the “soil” expert spoliated evidence whe he dug up the alleged hole. An expert cannot destroy evidence and then say what his conclusions are after the evidence is destroyed. For example, if a lab tests a blood sample but then loses or destroys it, the lab normally cannot testify to the results of the scientific test. This is because the test is not repeatible or verifiable. This is known as the legal doctrine of spoliation of evidence. But that is exactly what happened here. The “expert” dug up all the loose dirt that he said proved a hole of specified dimensions had been dug there. By so doing he destroyed all evidence that a hole had been previously dug there. As his conclusions are neither verifiable nor repeatible, his conclusions regarding the dimensions of the alleged hole, the density of the dirt in the alleged hole, and whether there was ever a hole there or not are not admissible in evidence. He can only testify as to the particles he found in the dig (assuming he did not destroy those too).
      In some situations, the judge can give a limiting instruction to the jurors, but this instruction is very disfavorable to the party who destroyed the evidence. So, what am I missing?

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