Jury out.
JB requests the power point presentation be done in the form of a proffer. JA did not want to do that as he was questioned about it in his deposition. JB saying he has no knowledge of the power point. JA agreed JB has not been given the actual power point, but he did get the photos that are included in it. JB said he just got them this morning - previously received photo copies in black and white.
PROFFER BY JB:
Slide #1 - hairs stored inside on window sill for 233 days - before on left, after on right.
Slide #2 - hairs stored on vehicle dash for 202 days - before on left, after on right. The after photo showed the medula, the central portion of the hair and was not apparent decomp. The darkening was natural.
Slide #3 - hairs stored in the trunk of the vehicle - before and after.
Slide #4 - hairs stored in the wooded area before and after. Darkening in the root area on the right side are characteristics of apparent decomp without a band.
Slide #5 - Hair stored in the vehicle before and after. Darkening in the root area on the right side are characteristics of apparent decomp without a band.
Slide #6 - Hair stored in a grassy area. Darkening in the root area on the right side are characteristics of apparent decomp without a band.
Slide #7 - Additional hairs stored in an outdoors grassy area. Darkening in the root area on the right side are characteristics of apparent decomp without a band.
The band has to be above the root and opaque and defined thickness and length to be signs of apparent decomp. The last one was not clearly defined.
Slide #8 - Hairs stored in an outdoor wooded area. Darkening in the root area on the right side are characteristics of apparent decomp without a band.
Slide #9 - Hairs submerged in water. Darkening in the root area on the right side are characteristics of apparent decomp without a band.
Slide #10 - Hairs submerged in water. Darkening in the root area on the right side are characteristics of apparent decomp without a band.
Submerged hairs - he does not know why the apparent decomp looks different in the anti-mortem hairs.
Slide #11 - Hairs submerged in water for 100 days. Before on top left, after in top right and lower center. Darkening in the root area on the right side are characteristics of apparent decomp without a band.
Slide #12 - Hairs submerged in water for 100 days. Before on left, after on right.
Slide #13 - Additional hairs submerged in water for 100 days. Before on left, after on right. Apparent decomp is shown.
Slide #14 - Additional hairs buried in potting soil. Before on left, after on right.
Apparent decomp includes post-mortem banding.
Slide #15 - Additional hairs buried in potting soil. Before and after.
Slide #16 - Buried in potting soil before and after.
Slide #17 - Buried in potting soil for 100 days before and after.
Slide #18 - Hair stored in water for 17 days exhibiting characteristics of apparent decomp - not necessarily seen in post-mortem. This is one he identified as banding.
Slide #19 - Photo of hair that examiner 2 identified as banded.
The examiners were trained hair and fiber examiners like him and Ms. Lowe.
Slide #20 - a post-mortem hair included in the test showing a post-mortem band from a cadaver stored outside on the ground surface. The body was placed outside for over a month - didn't believe it was completely skeletonized. Tennessee in January.
Slide #21 - another hair from a cadaver stored outside on the ground surface from the same person as above. They both showed post-mortem banding. One appeared to be closer to the root than the other.
Slide #22 - another post-mortem hair from a cadaver stored inside the house in Tennessee. He did not know the atmospheric conditions.
Slide #23 - hair removed from a cadaver stored inside a house in Tennessee from Feb to March.
Slide #24 - hair from another cadaver stored inside a house in Tennessee.
Slide #25 - Post-mortem hair from a cadaver stored outside on the ground.
Slide #26 - Post-mortem hair from cadaver stored outside on the ground.
Slide #27 - another hair from cadaver stored outside on the ground.
Slide #28 - another hair from cadaver stored outside on the ground.
Slide #29 - another hair exhibiting post-mortem banding from a cadaver stored outside.
Slide #30 - hair removed from cadaver stored in a vehicle.
Slide #31 - hair from cadaver stored inside a house.
Climate can affect the rate of decomp. This is not his area of expertise. They have studied effects of climate - 20,000 hair study - cadavers in warmer clients will produce root banding sooner than hairs in cold climates.
(JB conferring with DS)
By JB:
All these hairs are from adults, he believes. They can't determine if a hair is from a child or adult. He does not observe different characteristics of hair in children or adults. A younger child's hair may be thinner. The study included 15 individuals, 600 hairs, 2 children. Children's hairs were subjected to the same conditions. One child's hair were used in the first 4 locations. None of the 15 subjects were exposed to trash or garbage.
JB OBJECTS, Cumulative, unfair prejudice (403 and 6th amendment) (because they received this late - no opportunity for independent study), improper bolstering, different conditions.
HHJBP asks witness when the study was done - In March 2011 they told the state and defense that they had conducted a study. Ms. Lowe informed them. The study was provided to the State in a written format with the photos in color. There was a depo in early May in which the photos were discussed and provided to the State and Defense. The written portion was done later. Photos were emailed to Orlando and they were in color.
JA - In March 2011 the state and defense were informed about the existence of the study in a telephone conference. Mr. Shaw's depo was scheduled for 5/3 and the study was discussed. It is JA's understanding that the photos were sent to the local FBI field office and that counsel was permitted to go to that office to view the photos. This is the first he has heard that the defense did not receive color photos. The written portion was provided to the defense the early part of last week.
HHJBP to DS - she received something on the 9th - black and white photos and not all of the power point.
JA - 4 additional photos were provided last night. He was not informed that the copies were not acceptable until just now.
DS - had previously requested that all photos and data be brought to the depo. She did not advised that all the photos were not there. She went to the FBI to look at the color photos that she was not permitted to copy. She went back a second time and was still not permitted to make copies.
OBJECTION BY DS BASED ON FRYE.
JA - FBI could not release because it is an ongoing study. However, they went to great lengths to get these photos to the defense.
HHJBP - improper bolstering issue? - This testimony is to address whether the post-mortem banding can be caused by any other means. He does not feel this is bolstering.
JB - Study not peer reviewed and done specifically for this case - and actually began after this case.
JA - Material was available for the defense's expert and they did not do that. Study was started before this case and not done specifically for this case.
HHJBP - 3.220 - State has specific obligation to provide certain things, not the FBI. 6th and then 14th amendment - right to confront witness. No objection lodged at depo. The Court is troubled that the State at the 9th hour provides a power point with color photos that was not provided to the Defense. THE COURT WILL NOT PERMIT THE USE OF THE POWER POINT SINCE IT WAS NOT PROVIDED TO THE DEFENSE. Since there was no objection to the study, the record will stay as it is. It is the State's obligation, not the FBI, to decide when they want to let something go - particularly with the death penalty issue.
OBJECTION SUSTAINED - No power point.
HHJBP - If the defense starts asking about pictures that might change things. YOU CANNOT USE A SHIELD AND TURN IT INTO A SWORD.