5:04 PROFFER OF ERIN MARTIN BY CM: Request coordinator with FBI. Do you recall a 02/06/09 email you sent to Karen Lowe? No. She was shown Defense Exhibit DM. She then recalled it. She read: Hey Karen, I decided not to give the measurements to Nick that Brian emailed us since it is part of your ae notes and it doesn't appear that the jpegs were saved. I'll just tell Nick that there were no photos. (Something about ETU and LPU) I don't understand why the ME didn't take scaled photos of the tape when it was on the skull. She had no other involvement in this part of the case involving the tape. Witness excused. JA - relevance and hearsay. HHJBP - Mr. Savage first - relevancy. Materiality? CM: The material fact is whether there is or is not a murder weapon. JA has tried to create the existence of one by saying the tape could be one. He asked Nick Savage to find it and specifically one with scales on it. The response was - we'll just say we don't have the pictures. Hiding behind work product and should have been given to Defense as Brady material. This is evidence that they are trying to create this. JA: The relevance is that the prosecution is trying to do something wrong. Attacks upon counsel are prohibited. If CM read the email more clearly, they are trying to produce what is available to prove a material fact. CM: The prosecutor wants to know if it is possible for the tape to cover the mouth and nose area so as to do a computerized recreation. It's not attacking a prosecutor, but attacking the whole system. Someone is trying to create something is not there. HHJBP: 90.401 - relevant evidence. Defendant is charged with a 7 count indictment. The court after hearing the testimony of Mr. Savage, finds that this does not go to any material facts of the indictment or impeachment. Assuming this is evidence of an attempt to fabricate evidence, that would be the subject of a motion to dismiss based on prosecutorial misconduct and there is no evidence of that. This evidence does not go to any material issue in fact, purely collateral issue that have no bearing on credibility or believability of any witness. SUSTAINED as to this witness on this matter. HHJBP: Now to Ms. Martin. JA: Same argument - everything she had was told to her by someone else. CM: Remember motion for mistrial regarding the photo images of the tape and skull - this is the same issue. They did not have it. They didn't have ME photos and that is what has just been established. JA: He did not believe it is not a surprise that there were no photos of all three pieces of tape together to scale. HHJBP: Court will stand behind it's previous ruling. Any more argument about the last witness that was proffered? HHJBP: Again, evidence doesn't meet the test of relevance. Anything else for the balance of the day? Court in recess. (5:19) Tomorrow you need to tell me and be prepared to go to 2:30 or 3:00 on Saturday. Dr. Mason - you look a little bewildered. (CM said something about feeding the jury).