Lopez Trial Testimony

1 STATE OF MINNESOTA DISTRICT COURT COUNTY OF DAKOTA FIRST JUDICIAL DISTRICT FILE NO. 19-HA-CR-12-792 State of Minnesota, Plaintiff, Vs. TESTIMONY OF KARI MCDERMOTT JOSE AMADOR LOPEZ, Defendant. The above-entitled matter came on for hearing before the Honorable Tim D. Wermager, one of the Judges of the District Court, on the day of July, 2012 at the Dakota County Judicial Center, City of Hastings, County of Dakota and State of Minnesota. APPEARANCES: KEVIN GOLDEN Assistant Dakota County Attorney, I appeared on behalf of the State, and; LAURI MICHELLE P. TRAUB, Assistant Public Defender, appeared on behalf of the Defendant, and; The Defendant personally appeared. ?k'k~k WHEREUPON, the following proceedings were duly had, to wit: MR. GOLDEN: The State calls Kari McDermott 2 KARI MCDERMOTT Having been first duly sworn, was examined and testified as follows: THE CLERK: Would you state your full name with the spelling of the last for the record? THE WITNESS: Kari McDermott, THE COURT: Okay. Go ahead. DIRECT EXAMINATION BY MR. GOLDEN: Thank you. Ms. McDermott, if I can have you keep your voice up so everybody can hear. Yes. Okay. What is your current position? I work at the Saint Paul Police Department in the crime lab as a criminalist. What does a criminalist do? As a criminalist I do the drug analysis as well as going to crime scenes and doing some fingerprinting. And what training and experience do you have in this position? For training, I was trained by my supervisor as well as the other criminalists in the lab before me, and then I have also been to continuing education training for various types of things, so for crime scenes and 3 testimony and some drug analysis type training. Now, you have previously testified about having tested some suspected cocaine in lab number 112924? Correct. How are you assigned to this particular case? When we receive evidence in the lab, someone will take in the evidence and then log it into our computer and then they'll bring it back to us in our lab and then either me or one of the other criminalists will actually take the evidence and test it. So it's just whoever gets the case first will test the evidence. And in this particular case, again you previously testified that you received this in an intact, sealed bag, correct? Correct. And then what steps did you then take to prepare it for testing? When I prepare it for testing I will, so first of all I will get the evidence bag and make sure that it's sealed and if its not sealed I'll say that it wasn't sealed. And then when I open the bag I will cut the bottom, so I'm not disrupting the previous seal and I'll take the evidence out and weigh that and, like in the packaging and then we will take it out and weigh it without the packing. And then we also describe the A4 evidence, what we see, and then, we, after we weigh it, will actually test it. So, in this case we will do the presumptive test. So, I took some of the sample and tested it, during the color test, and then wrote my results down for that case. Can you explain what the color test is? For the color test we have a reagent that is called the Marquis reagent and we'll take a small piece of the sample and we will add that to a spot plate, so we'll put a small sample into the spot plate and then add the reagent, and depending on the color that it changes, we will go to the next step. So, depending on that color, then we'll do another color test. So we will take another piece of the sample and then do another color test and then based on that is what the result we get. Now do you recall what the color changes were in the results of each of these two color tests? Yes. And what were those? The first color test for the Marquis was a negative, so there was no color. So then when there is no color we do the next test, which is the Cobalt Thiocyanate, and when you do that test, if it's positive, it turns a blue color, a ring that is a blue color, and that, for the result of that is cocaine. 5 Now once you have completed that particular test, what do you do with the sample? After we do the test, we will take the sample that we weighed, we put it in a new sealed bag, so we'll put it in our own bag and then we will seal that with our evidence tape and we will write the lab number, our initials and then we date that to show that we tested it. And then put that, along with the original packaging, back in the original sealed bag and then seal that back up on the bottom and sign, date and initial it. And in this particular case you had re-sealed the bottom of the bag? Correct. And again, you previously identified that seal as the seal that you placed on that bag? Yes. And had it been modified at all by the time that it got to Court here? NO. And, is there any amount, or how much of the substance is consumed from the testing? Just a small amount, so a trace amount. And again, that came back, through the second reagent, as a positive for cocaine? 6 Correct. MR. GOLDEN: No further questions. THE COURT: Ms. Traub. MS. TRAUB: Thank you. CROSS EXAMINATION BY MS. TRAUB: Ms. McDermott, you and I have met before? Correct. In fact, we met on March 30th of this year when Ms. Funk and I from our office came down to your lab to meet with you? Correct. When we came to meet with you, Mr. Grannis from the county attorney's office also came? Correct. And we went through a drug testing file? Yes. And asked you some questions about your lab? Correct. And Mr. Grannis took some notes about our conversation? Correct. And you have seen those notes? Correct. How did you come to see Mr. Grannis' notes? Well, I believe that he emailed our assistant chief, or 7 no, he emailed, I'm not really sure who he emailed but it was someone from Dakota County, or the Dakota County attorney, and then they emailed our assistant chief the questions. Okay. Did you have discussions in your crime lab about those notes? Yes, we did. And, be fair to say that management wasn't very happy with some of the things that you shared with us? Correct. For example, you agreed that it is better for a lab to be accredited? I Right. And by accredited, you mean an outside body, such as ASCLAD lab or ISO, set standards for a lab to be certified? Correct. And those standards must be met every year? Correct. And, accreditation means someone who has no stake in the lab says whether that lab is operating under generally accepted scientific principals? Yes. The Saint Paul Police Department crime lab is not accredited? 8 Right. So, there is no one from the outside who says you are doing things under generally accepted scientific principals? Correct. Since our meeting on March 30th has there been discussion in the crime lab about becoming accredited? We have but I don't know the whole steps that we have taken to do that but I know we have talked about it. Okay. You said that you have never seen a validation study in the Saint Paul Police Department crime lab? Correct. At that time you said that horrified you? At the time it did but understanding, because I used to work in DNA and I used to do that all the time but with the drug analysis I didn't know that we were supposed to I guess. Okay. You would agree with the scientific principle that all technical procedures used by a forensic science laboratory, such as the Saint Paul Police Department crime lab should be fully validated before being used in casework? Can you repeat that? Sorry. Would you agree with the scientific principle, that all technical procedures, such as chemical spot testing for 9 example, that are used in a lab such as yours, should be fully validated before you use them on casework? Yes. MR. GOLDEN: Objection. It opinion and is also not a scientific argument. calls for an principle, it's an MS. TRAUB: It is a generally accepted scientific principle. MR. GOLDEN: Counsel is testifying. THE COURT: Overruled. You can answer. (By Ms. Traub continuing). So for example, if your lab decided to implement it's own preliminary color test for drugs, the proper scientific method would be to do an extensive study to see how accurate these tests are before you implement this on casework? Okay. Since our meeting on March 30th, has to do any validation studies? For, well, for the color change test study we do do a validation test. I a study but we do test controls that sure the reagents are working. your lab attempted I don't, for the don't know if it's we have to make Okay. But you understand that is not a validation study? I guess I don't understand. 10 Okay. Another thing that we discussed is the fact that your lab is in the process of reducing it's standard operating procedures to writing? Correct. You have worked in the crime lab since 2008? YGS. At what point since you began your employment were these SOP's reduced to writing? We were in the process of doing them maybe a year ago or so and now we are doing them again. Okay. So they haven't been updated in written form but we have been doing the same procedure since I started. Okay. And the, the SOP's today are still in draft form? Correct. Another thing that we discussed is the fact that your lab does not keep a formal record of when chemicals are mixed in your lab? Correct. You write the information on the bottle that contains the chemicals? Correct. So, when the bottle is empty, that information is thrown away with the bottle? 11 Correct. And information such as lot numbers, or expiration dates of chemicals can be important? Correct. Because you might come to court on a case six months after you did the test and there is no records of what chemicals you used? Right. And you have no independent recollection of that information? Right. And there would be no way to verify if the chemicals you used in a test, like a preliminary color change test, were good? Right. Another area of discussion was the fact that your lab does not document when the scales are calibrated? Correct. In fact, the method in your lab is that another analyst, Roberta DeCrans, calibrates the scales every Friday? Correct. An example of why calibration is important is because of the severity of the drug crime is determined -- . MR. GOLDEN: Objection, Your Honor. Counsel is testifying. 12 MS. TRAUB: I am asking her a question. THE COURT: Let her ask the question first. (By Ms. Traub continuing). Calibration of the scales can be important because of the severity of drug crimes can be determined by the weight of the drugs? Correct. And as you sit that you don't here today, it would be fair to assume have any independent recollection of what Fridays last year Ms. DeCrans took off work? YES. As you sit here today, it would be fair to assume you don't know which analysis in the lab calibrated the scales in her absence? It would have been me in her absence. Okay. Do you remember which Fridays last year you did that? I do not. As a scientist science should Yes. As a scientist science should Yes. would you agree with the statement that be repeatable? would you agree with the statement that be verifiable? And as a scientist you would agree that because of the 13 basic lack of documentation in your lab, what you do in your lab is not repeatable? I don't know if I agree with that. Just because it's not documented doesn't mean we didn't do it I guess, I would say. And it is not verifiable if you don't document it? Correct. I want to talk about your education and experience. Okay. You have a four year degree in biology? Correct. And your first job out of college was working at ViroMed Labs? Correct. And ViroMed Labs is ISO accredited? Yes. So you have worked in an accredited lab? Okay. You began at the Saint Paul Police Department crime lab in August of 2008? Right. And your main job in the lab is drug analysis? Right. You do some fingerprinting and some crime scene processing but drug analysis is your main job? 14 Yes. Okay. In looking at your resume, I don't see a single course since 2008 on drug analysis? I thought I had one on prescription drugs. Where you went to the No. I don't think that it was the BCA. Prescription drug crimes from December of 2010? Correct. And that was put on by the Saint Paul Police Department? Yes. And that covered, not drug testing, but drug crimes? Right. Okay. So, you don't have any courses on drug testing since 2008? Right. Okay. Been to a week long course on technical crash investigation? But you don't do crash investigation as part of your job? We do. It's part of the crime scene investigations. Okay. Don't you have a person that does crash reconstruction in your crime lab? Yes. 15 So that is not your primary job? It's not my primary but if they need help then we'll help. And you attended a two week course at Quantico on police photography? Correct. And that doesn't have anything to do with drug analysis? Right. You have been to two courses on how to testify effectively? Yes. And the only education course that you have been to so far in 2012 is a class called Building Warrior Women? Yes. Okay. And that is not about drug analysis? NO. Okay. So, you haven't attended a training since 2008 on chemical spot analysis such as what we are talking about in this case? Correct. You haven't attended a training since 2008 on the gas chromatograph mass spectrometer? Correct. I want to talk about how your lab verifies the 16 analyst's work. Your lab does not have technical reviews of the scientist's work? When we were training we did have a review. So, when I was training we would have a criminalist assigned with me and make sure that I was doing the test right. Okay. But, as a matter of course, you don't review each others' work? If we have a question on a casework we will, we will ask each other, you know, if this is, what do you think about this or, but usually we don't, no. Okay. You don't have a second reader that looks at every test? Correct. Can you explain for the Court what proficiency testing is? That is when someone will give you a test that they know the results for and then you test it, just like on a normal sample you would test, and then they would look at the results and if, you know, the results are correct to match theirs you're doing your job. And by someone, you mean someone from outside the Saint Paul Police Department? I guess I don't know if it could be internal or an outside lab. Okay. My understanding is regardless of whether it's 17 internal or external, the Saint Paul Police crime lab does not do proficiency testing? No, we don't. As a scientist, would you agree with the principle that technical reviews insure reliable science? They do and they don't. Like if you are comfortable with your results then I think that it should be okay but if you're not then you should have someone look over it for you. Fair to say sometimes you can be comfortable with your results and be wrong? True. And there is nobody checking if you are comfortable with your results? Right. Okay. And as a scientist would you agree with the general principle that proficiency testing is a good way to insure reliable science? I do. Okay. Your lab does neither of those? Right. Let's talk about color testing in general. Chemical spot tests, like what you used in this case, are nonspecific preliminary screening tests, is that correct? 18 Correct. They respond to particular functional groups in a compound? Correct. They are not a positive identification test? Right. Okay. They are a screening test to narrow down the possibilities to a few types of groups? Correct. So, when you said the test tested positive for cocaine, what the test tested positive for, was a functional group that includes cocaine? Correct. Okay. One of the reasons that a screening test is important is because it helps the analyst know how to proceed when using the gas chromatograph? Yes. Because some, some chemical families, for example methamphetamine, have to be tested at a lower injection port temperature than others? Right. They don't provide any structural information about the compound that you tested? Correct. They are subject to false positives? 19 Correct. And the color producing chemical reactions are not specific? Correct. So, while a particular reagent gives the designated color reaction with the specific regulated drug, other regulated and nonregulated drugs or substances can give the same color with that particular reagent? Yes. Because many drugs come from the same family and they have similar structural makeup? YGS. A chemical spot test of will yield the same color change as cocaine because they share some of the same molecular properties? Okay. is a perfectly legal substance--. MR. GOLDEN: I just want to clarify. Was the witness agreeing with that statement as a true statement or are you just acknowledging that counsel is saying it? THE WITNESS: Well, what was the, which was the question? (By Ms. Traub continuing). A chemical spot test of will yield the same color change as 20 cocaine because they share some of the same molecular properties? I guess I don't know if it does. I guess if you, if you said that, I don't know for sure. i You don't know that? Right. Okay. You know that is a perfectly legal substance? I don't know that. Okay. Do you know if Benadryl contains I do not. Okay. You know, do you know that other antihistamines contained in products such as Triaminic and Tylenol Cold and Allergy will also give the same color change result as cocaine? 4 MR. GOLDEN: Objection. Counsel is testifying-- . MS. TRAUB: I asked, do you know. THE COURT: Don't talk over each other. Let him finish his objection before you make your argument What is your response? MS. TRAUB: I asked do you know. That is a question. Does she know that. THE COURT: Overruled. 21 THE WITNESS: I don't know that. (By Ms. Traub continuing). Do you understand if topical anesthetics, such as Lidocaine, will give the same color change result as cocaine? 1 ac know than. And Lidocaine is legal? Yes. Okay. So, at best, the color change on a spot test means only the possible presence of the substance for which the test was intended? Correct. Color change spot tests are also subject to error because they involve the discrimination of the analyst preforming the test? Correct. For example, what you might think is blue, another person might call aqua or violet or some other color? I guess so, yes. And you didn't have anyone take a second look at this color change test? NO. And you don't document the color change other than what the check mark in the box on your sheet? Correct. You don't take a digital photo of it? 22 NO. I want to talk about the spot testing that the Saint Paul crime lab uses in particular. You don't use a commercially available test kit like the NIK test? Right. My understanding, correct me if I am wrong, is that Sergeant Shako (phonetic) thought the NIK tests were too expensive and he came up with a different test? I guess I don't know that for sure. Okay. You haven't performed any validation studies on the spot test that you use? For our validation we do test the standard control when we make them. Okay. And by the standard control, you mean that you buy a known quantity of a drug from the Correct. And you know that is cocaine? YGS. Or you know, okay. So you tested it on cocaine, did you test it on NO. Did you test it on other antihistamines? NO. Did you test it on things like Lidocaine? NO. 23 So, the only thing that you know is that your color test that your lab came up with, will give a positive result on cocaine? Correct. But you don't know what the error rate is? Correct. Because you haven't performed any other testing? Correct. So, in fact your lab has not documented its test method is at all reliable? We haven't documented but it's widely accepted though in the forensic community for presumptive testing. And what is widely accepted in the forensic community is that you do a validation study before you implement something in your lab, fair to say? Well, I guess I don't know if it's a study but we do do a control for it. Okay. You did a control but you don't do anything else? Right. So, you don't know what the error rate is? Correct. You don't know how many other things will give you this reaction when you put them into Cobalt Thiocyanate, just like you get with the standard that you tested? 24 Correct. So, there could be, and in fact are probably, a lot of other substances that will give you that same blue color? Correct. And you don't know what those are because your lab hasn't tested them? No. Okay. As a scientist, you would have to admit it's possible that the color change in the test that you did in Mr. Lopez' case, came from a perfectly legal substance? - It could be. The chemicals that you used for this testing are prepared in your lab, correct? Correct. And you don't keep any written documentation about the mix of those chemicals? We do on the bottles. On the bottles? Yes. So, as you sit here today, do you have any independent recollection of when the Marquis reagent that you used in Mr. Lopez' test was mixed? I do not. 25 You don*t know who mixed it? Not at that time. You don't know if it was expired? Those reagents on the external bottles don't have expiration dates. Okay. Do you know how fast you go through your chemicals? Usually before a year. But you don't have any documentation of that? Right. Okay. You have no independent recollection of when the cobalt thiocyanate reagent used in Mr. Lopez* test was mixed? Correct. You don't know who mixed it? No, I don't. You don't know if it was expired or good when you used it. That, it shouldn't be expired because we will use it quickly, before the year is up. But you don't keep track of that to know for sure? Right. And the methylene chloride comes from the manufacturer? Correct. Do you document things like expiration date or how fast 26 you use it on that? No, because those don't have expiration dates. The methylene chloride does not. Okay. Nobody can verify the work that, the chemicals that you used in this test? Myself, when I tested it. Okay. But it's, six months later. I can't check it because you didn't write anything down. Fair statement? You mean when I tested it or, what do you mean? We were in Court six months after you ran this test? Right. If I wanted to verify that you used good chemicals I can't do that? Right. Okay. And you can't specifically remember what the chemical, what, who mixed or how long ago those chemicals--. Right. So, we can't verify today that the testing that you did in December was good? Well, if it, from the chemical, if it's been within a year it should be fine. Well, it should be but we don't have any way to verify that? 27 Right. I want to talk about the written SOP's that your lab has for chemical testing. Do you have a copy of those? The draft, I don't know--. Yes. The draft SOP, would you like one? Sure. MS. TRAUB: May I approach, Judge?. THE You may. MR. GOLDEN: Objection, Your Honor. The witness does not have that SOP, she hasn't, she is not going to be familiar with it. What is the point of showing her the MS. TRAUB: I want to talk about her SOP, Judge, and since she provided it to Mr. Golden and I, I would assume that she has seen it before and knows about it. THE COURT: All right. I will--. MR. GOLDEN: Actually I don't have the SOP. MS. TRAUB: Well, you provided it to me, Mr. Golden, MR. GOLDEN: Where is it in discovery. MS. TRAUB: I am sorry, I didn't bring a extra copy. (By Ms. Traub continuing). Fair to say an SOP is a written instruction on how to carry out a given task? 28 Correct. Okay. And that is based on validated methods? Should be. It should be, yes. Your SOP's haven't been validated? Because they are a draft right now, so -- . So, you come up with, you write a draft and you use this process, at what point are you going to validate the process? We validate when we do the control standard, like I said before. Okay. When I am talking about validating I mean doing the validation study, where not only do you test it on the control but you test it on other things. When are you going to do that? I guess I don't know, right now. Okay. There is no date on this Yes. Okay. How long has this SOP been in existence? Well, this is our draft right now so we are in the process of making the updated ones so I don't know how long this one had been Okay. And you have had this one since you started there in 2008? This one, I don't think so. Okay. 29 This one, I think this one is from maybe a year ago or so. Okay. Do you see under 3.3.1 where it says use a very small amount? Okay. How much is a very small amount? A very small amount to me is just a trace amount that doesn't have a weight to it. Okay. Would it be fair to say that your very small amount might not be another analyst's very small amount? It could be. Which makes it hard to repeat the procedure? Correct. Okay. And it says, use a couple of drops of the Marquis reagent? Correct. How much is a couple of drops? Like two, three. Okay. Well right there you gave me two different answers, so it's fair to say that people could interpret a couple of drops differently? Correct. Which makes it hard to reproduce the procedure? Right. 30 So it's fair to say that the chemical spot testing done in this case is not repeatable? Well, this is a draft, like I said before, so we could be updating this. Well, what I mean though is, you know, you do the testing and you take a very small amount? Correct. 4 And you don't weigh it? Right. And you don't write in your lab notes how much your very small amount was? Right. And then you use a couple of drops? Right. And you don't specify in your lab notes if that is two or three or ten or twenty? Correct. Okay. So, the spot testing that you did in this case is not repeatable? I guess I don't know what you mean. Well, if I wanted to repeat exactly what you did, which is the purpose of an SOP, my very small amount would be different from yours? Okay, So, I couldn't look at this SOP and repeat what you 31 did? Okay. And I couldn't look at your bench notes and repeat what you did? Okay. So, it's not repeatable? Well, just like I said before, it's a draft so we are still updating this. Okay. And while your updating that you are still engaging in testing in the crime lab? Correct. Okay. Can we talk about the property log for the evidence in this case? Okay. You keep a property log to show the Court that the evidence has not been tampered with, is that correct? What is the property log? I am sorry. Do you want a copy? I have one for you? If you have one. This is the, this property log shows more than one case, correct? Correct. And the property log identifies the lab number, correct? Correct. 32 And the complaint number? Correct. And the item number? Correct. And what is the next column? That is turned over to, so when we bring it down to the property room they'll sign over it from us. Okay. And I am a little confused because it says that it was turned over to someone on January 4th of 2012, on that first page? Correct. And then it says that it was faxed on December 8th of 2011. Do you see that on the bottom where it's stamped? Yes. How could it have been faxed before it was filled out? This, this is our sheet that we fill out and we put it in our vault until it's ready to go down to the property room. So, once it's full then we fax it down and then when they are ready to take the evidence from us, that is when they sign it on this part. Okay. All right, that helps. And you would agree that every piece of evidence is given a unique identifier? YES. And that is especially important in drug cases? 33 Yes. Because drugs are fungible goods? Yes. They can get confused and mixed up? Yes. This is case number 112924, is that correct? Correct. Originally, everything from this case came in together, there was one package of alleged drugs from November? Okay. And then one from December, is that correct? Yes. Okay. Would you agree with me that one of those should have been item number one and one of them should have been item number 2, so you could distinguish? I guess I don't know how the item numbers are decided. Like I don't give them the numbers so I don't know why they weren't separated. Who decides how the drugs are numbered? I think whoever the police officers are, the investigators in the case. Your lab doesn't use a numbering system? We don't, no. We just go by what the property sheet they give us has. Do you have your file for this case up there? 34 What do you need? Well, I am a little confused because I am looking at your preliminary drug testing reports from both November and December. Do you have those up there with you? Yes. Okay. Can you take out the one from November and the one from December? Okay. Do you see how in the November one it's labeled item one? Yes. And you see on the December one it's labeled item one? Yes. But they both have the same lab number? Yes. And they both have the same complaint number? Yes. Okay. And then when you look at your property log, they are both referred to again as item one, with the same lab number and the same complaint number? Correct. . Okay. How do we know, in looking at that property log, which is which? Isn't that important? Yes. I don't know if it's just because the dates are 35k different and that is how we go by that. It's not necessarily on the property log but on the actual property sheet it has the date. Okay. Correct me if I am wrong because I don't have the science background but I have dealt with the BCA and when they do one case, with one case number, every item in that case gets a different number. MR. GOLDEN: Objection. Counsel is testifying. THE COURT: Sustained. (By Ms. Traub continuing). You don't assign a different item number to every item in a case? At least you didn't here? That is not, I guess that is it not what we in the crime lab do. It's whoever, I guess that it's whoever has the evidence and then brings it to us does that part. Okay. Did you ever notice before today that you have two things with the same item number and the same case number and the same complaint number? I did. Okay. So, how do we know which one went where, when? In, in our computer we have a log so, for the specific one with the date, it will say which one was brought down at that time. It might not say on this sheet but 36 it does in our computer. Okay. Well I don't have a computer here today. Right. And this is what I have. Right. And I can't tell from looking at your property log which of these items was taken down on December, or returned I guess it is, on December 21st and which was returned on January 4th because they are both item one? Correct. MS. TRAUB: I don't think that I have any more questions. THE COURT: Mr. Golden. MR. GOLDEN: May I approach, Your Honor? THE You may REDIRECT EXAMINATION BY MR. GOLDEN: This is Exhibit one for identification. Counsel has been asking you about that, so if you could just tell the Court what that is? This is our crime lab, Saint Paul Police Department report that we write up every time we test a piece of evidence. And it has, also when we received it in the lab, by who, the date and who it's examined for and who examined it. And then it has the item number along 37 with the date we examined it and then our description and results. How do you recognize that? It has my signature at the bottom and I recognize the report that I wrote. Okay. And that report said that you had a positive test for cocaine, correct? Correct. And that the weight was 27.82 grams, correct? Correct. MR. GOLDEN: Your Honor, I offer Exhibit 1. MS. TRAUB: No objection. THE COURT: Exhibit 1 is received. (By Mr. Golden continuing). Now, counsel asked you a lot of questions about the reagent testing procedure and you mentioned at one point that the testing is widely accepted within the forensic community? Correct.' And are you referring to the specific type of testing that you do at the Saint Paul crime lab? Correct. Now, if, if that is widely accepted within the scientific community, is it accepted because it produces reliable results? Correct. 38 And that the reagents are reliable? Correct. MS. TRAUB: Objection, I think calls for a conclusion beyond her education and experience. THE COURT: I am sorry, what is the objection? MS. TRAUB: I think that it's beyond her scope of knowledge. He's calling for speculation as to why something is accepted in the scientific community. THE COURT: Overruled. (By Mr. Golden continuing). So, this has been utilized and validated by other organizations? Correct. Other forensic institutions? Correct. And that is why you use it at Saint Paul? Correct. Because it's --. MS. TRAUB: Judge, can I object again to the leading questions? THE COURT: Yes. Try to rephrase the questions. (By Mr. Golden continuing). Now, counsel asked about the expiration dates on reagents, do you, personally, check the reagents when you use them? 39 Yes. And, do you ever use any reagents that are expired or questionable? I do not. Counsel also asked you about the scales and that those are calibrated on a weekly basis either by you or Roberta DeCrans? Correct. And, throughout the entire time that you have been there, have they ever needed to be adjusted or recalibrated to any significant degree? NO. Have you ever had to readjust them? No. i Have they always been accurate? Yes. How long have you been using those scales? Ever since I started, so almost four years ago. And throughout that time period they have continued to be accurate? Yes. And again, the, when you mix the substance with a reagent, do you match that against a color card or color scale? We, we have a chart that we use that will tell us the 40 colors that they are supposed to be. So, we don't have a color card but it tells us what each type of substance should be. The color. So, it's you have Well, it I guess, And, the contains - - Correct. Anything Correct . not just you guessing at what blue might be, a blue to match it to? says it should be blue, so not a specific blue but blue. group or family the functional group that cocaine, includes cocaine, cocaine metabolites from the cocaine family? And you routinely, or you have, checked your tests by checking the reagents against a known sample of cocaine, correct? YSS. So, you know what the results look like when it finds cocaine? YES. And counsel has repeatedly asked you, asked you that you can't verify your testing as good, your preliminary testing as good but you can, correct? Yes. Based on our standards that we use, a known control, if it matches that, then yes. 41 And, in this particular case you were also able to verify the specific results, correct? . And how is that done? Well, what do you mean? Did you conduct any additional testing to verify that this was in fact cocaine? Yes, I did. MS. TRAUB: Objection, Judge. All of those test results have been suppressed because of Mr. Golden. THE COURT: Well, if that is where you are heading, it's sustained. MR. GOLDEN: Well Your Honor, I think that counsel has opened the door by asking repeatedly whether the results were verified. MS. TRAUB: Absolutely not, Judge. The reason that the test results were suppressed was because Mr. Golden didn't get his drugs tested in a timely manner and asking whether a, an untested, unvalidated color study from the Saint Paul crime lab is accurate as to the results, doesn't open the door to bringing in test results that were performed further. I am allowed to cross examine on the fact that the crime lab hasn't validated their studies and 42 can't tell me everything that tests blue because they don't know because they don't do testing there. doesn't mean he gets to bring in something that That was suppressed because he didn't get the test done in time. MR. GOLDEN: On the flip side of that, Your Honor, counsel doesn't get to argue that the test wasn't verified or that didn't come out with an accurate result. That would be untrue, because that the test was verified. And when she asked witness that she can't verify that the test was that is a false statement because in fact that, test was verified. we know the good, that MS. TRAUB: Judge, that is not an accurate statement of what I have been asking. What I'm asking her is, has she validated the methods that she used in her chemical spot test and this lab has not. They don't use a commercially available test, she testified to that, that has in the scientific that they decided they haven't done any validation studies except been validated and is widely accepted community. They use color reagents to use because they are cheaper. And toi put cocaine in there and say surprise, it turns blue. But they haven't done validation studies about all the other things that also turn blue. That is what I'm asking her about. And I'm sorry if Mr. Golden doesn't 43 understand that concept but that doesn't mean that he gets to bring in evidence that was suppressed because of his own failure to MR. GOLDEN: comply with discovery if I point is that counsel comply with discovery. Again, it's not a failure to don't have it. But, the specifically asked that you can't verify that testing is good, when in fact counsel knows that they did verify the testing in this particular case. So, the relevant issue is, is it drugs or not. And here, counsel knows, that the testing was verified. That in this particular case the result was ac . MS. TRAUB: And Judge, again, I don't know that it was accurate because I got this on the 21st and I didn't have time to hire an expert to look at this file. So, I don't know quite frankly if their gas chromatograph mass spectrometer is accurate. THE COURT: I am objection as it relates to (By Mr. Golden continuing) stated that you are, there items that were brought in Correct. going to sustain the the final testing. Now again, here you also were two substances, or two under the same case number? But, on your computer system it differentiates those two? 44 Yes. And in this particular case you did the testing on both, correct? Correct. And you could differentiate one from the other? Correct. Not only by the number but also by the date? MS. TRAUB: Judge, I'm going to object again, the leading questions are becoming ridiculous. THE COURT: Well, they are leading so try not to lead. MR. GOLDEN: I am trying to save time. THE COURT: I understand. (By Mr. Golden continuing). So, when you tested these drugs, the drugs from December 2nd, is there any confusion in your mind that they were the same drugs that we saw in court a week-and-a~half ago? NO. And also, based on your experience is there any doubt that these were in fact cocaine? NO. And, items such as topical anesthetics have a different--. MS. TRAUB: Objection, leading. Again. (By Mr. Golden continuing). Do those have the same 45 characteristics, or the same physical qualities is powered cocaine? They can, yes. Now, here you have had your own work checked by other correct? I have. And, that was done during your training? Yes. Has it been done since then? NO. But, the results of your preliminary testing have been corroborated by further testing, correct? MS. TRAUB: Objection. MR. GOLDEN: In general. MS. TRAUB: Improper. THE COURT: What is improper? MS. TRAUB: He's going down the final testing road, Judge. MR. GOLDEN: I was asking, as a general proposition whether the results of a preliminary test have been checked. Again, are they accurate in her experience, that is what we are talking about here. THE COURT: Well, yes, I'll allow it but with regards to testimony on what the final test was, that, that is what I am excluding. 46 (By Mr. Golden continuing). So again, you have done preliminary testing on a number of drugs before, correct? Yes. And when those are re~tested, under a GCMS, are those results confirmed? Yes. And the GCMS looks at it at a molecular level, correct? Yes. In which you don't get false positives for something from the same group? Correct. When you're doing the testing, do you follow your own protocol and procedures to insure the accuracy? Yes. And are you confident in your results? Yes. When counsel talks about a little bit of a substance and a couple of drops of reagent, whether it's two or three drops and a little bit or a little bit more, is that going to make a difference as to whether it reports positive for a given drug? No. In fact, if the amount is too small, the reagent may not even pick up the substance and give a false negative? Correct. I have to 47 MS. TRAUB: Judge, I don't know how many times object to the leading questions. Direct is who, what, when, where, why and how, not feed the witness the answer. questions THE COURT: Okay. Try to ask direct and not leading. MR. GOLDEN: Thank you, Your Honor. (By Mr. Golden continuing). Can you explain what you mean when you refer to the testing done in Saint Paul as, accepted within the forensic science community? For specifically Saint Paul it's accepted for investigative or charting purposes. So, we can do a presumptive test for those. But when you say, accepted within the forensic science community, that process that use, what do you mean by that? Well, it's used by other agencies, the presumptive test, the NIK test, they are all used to do a presumptive test. questions MR. GOLDEN: Thank you. No further THE COURT: Ms. Traub. MS. TRAUB: Lots of questions. 48 RECROSS EXAMINATION BY MS. TRAUB: When you say that color testing is widely accepted in the scientific community you just clarified that, you said NIK tests are widely accepted in the scientific community, correct? Well, those and reagents too that we use. Well, let's break it down. NIK tests are accepted in the scientific community? Okay. Correct? I believe so, yes. Well, you just testified that they were? Yes. So that is a yes? Okay. And, one of the reasons that NIK tests are accepted in the scientific community is because they have been tested and validated and were subject to rigorous performance examination before they were put on the market, correct? I guess I don't know that for sure but, okay. Okay. And the concept of color testing in general is accepted in the scientific community? Yes. 49 And that is because some of those color tests have been subjected to validation studies and rigorous testing, correct? Okay, yes. And the color testing that you use in your lab, while the concept of color testing is widely accepted, the color testing that you use in your lab has not been subjected to scientific review? I guess I don't know for sure before I started working if it was validated or not but when I started working, that is what we have always used, so that is what I have been using and that is how we validate it is by a standard. So, when you testify here today, you don't know if the test you are using has been validated, so you don't know if it's accepted in the scientific community, the specific test that your lab uses? I guess I don't know. Okay. And your lab is not accredited? Right. So, there is no one from the scientific community saying that the Saint Paul Police Department crime lab does it right? Well yes, but they are not saying we are not either. Well, that might happen in about a week, right? 50 MR. GOLDEN: Objection, argumentative. THE COURT: Sustained. (By Ms. Traub continuing). You have never had someone from the scientific community come in and check out your lab and say they have it right or they have it wrong? I guess I don't know before I was there if we have. Okay. Well, you're not accredited? Okay. Okay. And you testified that you personally check the reagent and you wouldn't use them if they were expired. Do you have an independent recollection of what reagents you used in Mr. Lopez' case? Well, the reagents that we made, I do know that we used them. Okay. And then, we test them against a control. Okay. How often do you test them against a control? When we make them. When you make them? And then if they are not working properly or if they look different than what they started out as, then we will test it again. So, you don't, as a matter of course, test them every day? 51 NO. And you don't, as a matter of course, keep a log that says, looks good today, didn't have to test. Looks bad today, tested it? Right. So, you have no independent recollection regarding the reagents on the day that Mr. Lopez' tests were performed? Right. And you have no documentation for anybody to check? Right. And you don't have a color card, you just have a chart that says blue means cocaine? Right. In fact, blue doesn't just mean cocaine, it means that chemical, anything that shares chemical similarities with cocaine? Right. And some of those drugs are perfectly legal for possession? Right. Okay. And you said that you run, you use the standard and you know that that turns blue, so you use the cocaine standard and it turns blue? Yes. 52 But again, because you haven't done any studies in your lab, you can't tell us anything else that turns blue or doesn't turn blue? Correct. So, fair to say, just because you put a standard in there and it turns blue, doesn't mean that it's always cocaine. And it doesn't mean that when you test something else that it's cocaine? Correct. And you have no degree of certainty or measurement to know which is cocaine and which isn't? Correct. From a color test? Right. And you can't sit here today and say beyond a reasonable doubt that that was cocaine? Not for the presumptive test. Right. That is what we are talking about. And, you, in general, said that you haven't seen, where you have run a preliminary test and a final test and they turned out different? I have, do you mean like, I'm sorry, can you repeat that? Mr. Golden asked you, have you ever run, in general, not in this case, a preliminary color test that said 53 for example it's methamphetamine and then you run it through the gas chromatograph and it says oops, my bad, it's not? I did have one that was. Okay. Because you When I -- . You testified to him You have seen that? that you never had that happen. Yeah, just one time. One time, okay. Do you have documentation of how many times you have done these tests and how many times there have been false positives? I don't. I just remember that once. Okay. Has your lab ever done a study on that to see how accurate your lab is? What do you mean? Have you ever kept track of that in your lab so you could come in here and give us an error rate? Not that I know of Okay. And you said that you have never seen a gas chromatograph give a falls positive? From a presumptive test, or? No, when you ran it through a gas chromatograph? Not, not if it was positive and then turned out negative, or the other way around. If that is what you 54 are Well, I guess, well, Mr. Golden asked you if you ever see a case where, you know, you ran it through a gas ohromatograph and it said it was meth and it turned out that it wasn't? So, it wasn't meth but it . But it showed up as meth on your gas ohromatograph? No, I haven't. You have never seen that? NO. Okay. Are you aware of the Navy crime lab study from 1991 regarding that? No. Okay. Would you agree with the proposition that confidence doesn't mean certainty? It doesn't, but . Okay. In fact, a more confident person might be more certain about something than a person who is less confident, right? Right. Okay. Mr. Golden asked you if, with your SOP's, if using a little bit, if the little bit wasn't the same, if that mattered and you said, wouldn't matter? For the amount or for the drops. For the amount? 55 For the amount, no, unless it's a really small amount. Okay. And you know that because you have done validation studies in your lab? Well, not for that, no. Okay. You haven't done any validation studies in your Thank lab? I guess I don't know, we have done validations but maybe not the studies. Okay. MS. TRAUB: I think that's all I have. you. THE COURT: Mr. Golden. MR. GOLDEN: Thank you, Your Honor. FURTHER REDIRECT EXAMINATION BY MR. coLnEN= Accreditation, that costs money, doesn't it? Correct. And, the accreditation doesn't . MS. TRAUB: Objection, leading again. (By Mr. Golden continuing). Does accreditation necessarily mean that a lab is good or bad? NO. Does the lack of accreditation mean that a lab is necessarily good or bad? NO. 56 And based on your experience as a scientist, do you believe that the Saint Paul crime lab follows sound scientific procedures? Yes. MR. GOLDEN: Thank you. No further questions FURTHER RECROSS EXAMINATION BY MS. TRAUB: Let's get straight on accreditation, because Mr. Golden asked you, accreditation doesn't mean that a lab is good or bad. I think that accreditation means that a lab is doing things correctly, fair to say? Well, isn't accreditation like recommendations but not, you don't have to, right? No. Do you not know what accreditation is? I do. And being accredited means, for example, ASCLAD lab has certain things--_ MR. GOLDEN: Objection, Your Honor, counsel is testifying again. THE COURT: Sustained. (By Ms. Traub continuing). Okay and do you know, to be accredited labs have to meet certain standards? Yes. If you don't meet those standards that are considered valid within the scientific community, you can't get 57 accredited? Okay. Correct? Correct. So, if accreditation is based on meeting certain standards within the scientific community, fair to say, being accredited means that you are a good lab? I guess I don't, I don't know if it means we are good or bad either way. I am not talking about you, I am talking about an accredited lab, like the Well, yes because they have someone coming in and making sure what they are doing is, you know, up to standard. And you don't have anybody coming in and making sure that what you are doing is up to standard? Right, but it doesn't mean that we are not though either. i That's true but there is nobody checking that? Right. And you're not doing validation studies? We do do some validation, yes. You validate with standards? Yes. You still have your SOP's in draft form? YGS. 58 You don't do proficiency testing? MR. GOLDEN: Objection. Asked and answered We have been over this a dozen times. THE (By Ms. Traub have a lot of I guess I don Okay. MS. THE MR. THE COURT: Sustained. continuing). You don't, in your lab, the basic minimum standards in place? know what the minimum standards are. TRAUB: I don't have anything further. COURT: Mr. Golden. GOLDEN: No further questions. COURT: Thank you. You may step down. ir -k ir 59 STATE OF MINNESOTA) COUNTY OF DAKOTA CERTIFICATE I, Jeffrey Lang, do hereby certify that I am an official court reporter of the First Judicial District of the State of Minnesota, that as such reporter I reported in shorthand the proceedings had on the hearing of the aforementioned action; that I thereafter transcribed the foregoing into typewriting by means of computer-aided transcription; that the foregoing transcript, constitutes a true and correct transcript of said hearing in regard to the aforementioned matter. Jeffrey F. Lang JEFFREY F. LANG Official Court Reporter