“So would you consider this method to be accurate in comparing and identifying fibers?”
“Very accurate.”
“Thank you,” Denton said. “Now on to more important matters. You also performed other tests. Tests that were run on the beer cans that were found in the back of the Mercedes, is that right?”
“Yes sir.”
“What did you find on the cans?”
“Saliva, apparently from the person who drank the beer.”
“Where was the saliva found?”
“Around the opening in the can that you drink from.”
“And what else did you find around this opening?”
“We found lip prints.”
“And just what are lip prints?”
“Just as each individual has a set of unique fingerprints, each person’s lips have patterns of ridges, grooves, and wrinkles that are specific to that person. Distinct and intact lip prints were taken from the beer cans.”
“Is this a scientifically accurate method?”
“Most definitely.”
“And were those prints identified?”
Saperstein folded his hands on his lap. “They were matched against those obtained from another lip print sample.”
Denton took a step forward toward Saperstein, drawing the jurors’ attention to his witness. “And what was your conclusion as to whose lip prints were present on the beer cans?”
“The lip prints matched those of Brittany Harding.”
A slight murmur rumbled from the spectator seats in the middle of the courtroom. Calvino looked up and restored order with his stare.
“Those of Brittany Harding,” repeated Denton. “Not Phillip Madison. Brittany Harding. Are you sure?”
“Quite sure.”
“Were there any other tests that were performed on the saliva that was on the beer cans?”
“Yes.”
“What kind of tests were those?”
“We performed a blood group study and a DNA analysis.”
“Relative to the blood group, what blood type was found in the saliva?”
“AB,” Saperstein said.
“Did you test Dr. Madison’s blood type?”
“We did. It was type O.”
“And Brittany Harding’s?”
“AB.”
Denton raised his eyebrows in mock surprise. “The defendant was AB, and the type found on the beer cans was AB?” he asked, reinforcing the fact, rubbing hand lotion into the jury’s collective skin and watching it soak in.
Saperstein said, “Yes.”
“What percent of the world population is type AB?”
“AB is the rarest blood group that exists. Less than four percent of the population has it.”
“What about type O? Just to give us a basis of comparison.”
“Approximately forty-five percent of the population is type O.”
“So AB is quite rare.”
“Yes.”
“You also said that you performed DNA testing on this saliva,” Denton reminded him, receiving an affirmative nod from Saperstein. “I’m not going to go into the specifics of the testing procedure with you, because we have a witness who’ll be testifying in that regard. But can you please tell the court whose DNA was found in the saliva?”
“That of Brittany Harding.”
Another mumble from the courtroom.
“Quiet, please,” Calvino ordered.
“So let me get this straight, Mr. Saperstein,” Denton said, placing a hand on his chin. “You testified earlier that the vehicle used to cause the deaths of the two decedents was the Mercedes owned by Dr. Phillip Madison. And now you’re saying that the beer cans which were found in the rear of that car did not in fact bear any identification relative to Dr. Madison, but in fact contained lip prints and saliva that were consistent with Brittany Harding’s—”
“Objection,” Warwick said, standing. “Is there a question here? Or is counsel merely summarizing the witness’s testimony, putting words into—”
“I’m not putting words—”
Calvino banged his gavel. “Let’s keep this civil, please. Unless you have something constructive to offer, allow me to make my ruling on the objection, Mr. Denton.”
“Sorry, Your Honor.”
“Objection sustained. Mr. Denton, ask a question or dismiss your witness.”
Denton faced his witness. “Mr. Saperstein, what certainty would you give the fact that the lip prints belong to Brittany Harding?”
“Ninety-five percent.”
“And what’s the chance that the DNA profile you obtained could come from someone else other than the defendant?”
“I would say that there is an extremely low probability.”
“Can you put that into numbers, Mr. Saperstein?”
Saperstein pursed his lips. “Based upon the testing method used, there is only a one-in-fifty-thousand chance that it is not Brittany Harding’s.”
“Objection. This gentleman is not listed as an expert on DNA by the prosecution.”
“He has a point there, Mr. Denton,” Calvino said.
“Your Honor, this gentleman is a senior criminalist who is trained in DNA analysis. I chose to designate a different witness as our DNA expert in order to corroborate the findings of Mr. Saperstein.”
“I didn’t hear you qualify Mr. Saperstein as an expert on DNA analysis,” Calvino said.
“Very well, Your Honor, I shall do so.”
“Mr. Warwick?” Calvino asked.
“I withdraw my objection pending Mr. Denton’s qualification.”
Denton stepped forward. “Mr. Saperstein, what is your training on DNA analysis?”
“I attended several course offerings at University of California at Berkeley and received certification in DNA handling and analysis nearly ten years ago.”
“And in how many cases have you performed DNA analysis? Approximately.”
“Between three and four hundred, I would estimate.”
“Your Honor, I submit Mt. Saperstein to the court as an expert in DNA analysis.”
“Mr. Warwick, do you have any objections?”
Warwick frowned. “No, Your Honor.”
“Very well, then,” Denton said. “Mr. Saperstein, you were quoting us the probability that another person could have the same DNA as that of Brittany Harding.”
“Yes. There is a one-in-fifty-thousand chance that another person’s DNA would match Miss Harding’s DNA, according to the method of analysis we used.”
“One in fifty thousand. And we already know that the only other suspect who ever existed in this case—Phillip Madison—his DNA does not match that found on the cans. Is that correct?”
“Yes. We tested Dr. Madison’s DNA, and the pattern’s not even close.”
“Thank you, Mr. Saperstein,” Denton said as he walked back toward the prosecutor’s table; he nodded to Warwick. “Your witness.”
“Mr. Saperstein,” Warwick said as buttoned his sport coat, “did you perform all of the tests on the evidence gathered at the crime scene?”
“No, I did not. I was ill with ulcerative colitis and—”
“Yes, sir, a simple yes or no would be sufficient. Did you perform the testing that was carried out on the lip print analysis?”
“No.”
“I thought you said you did.” He looked down at the legal pad he was holding. “I believe when Mr. Denton asked, ‘What did you find around the opening on the cans,’ you answered, ‘We found lip prints.’ We, as in yourself and others.” He removed his reading glasses and looked at Saperstein.
“That’s not what I meant.”
“But it is what you said.”
“I meant it as the collective ‘we,’ like those of us in the lab. People, in general.”
“In general? Did you, in fact, have anything to do with the lip print comparisons? I’m speaking about you, personally. Not the collective you, he said with a smile.
“No, I did not.”
<
br /> Warwick strolled away from Saperstein, and then stopped. “So this was just a generalization.”
“Yes.”
“But generalizations are often wrong, Mr. Saperstein. What else did you tell the jury that was inaccurate?”
“Objection.”
“Sustained,” Calvino said. “Move on, Mr. Warwick.”
The public defender nodded, then paused for a moment. “Is it standard procedure for one criminalist to collect the data and evidence and another to conduct the testing?”
“I guess it depends on the lab. But not at ours, not usually.”
“I’m curious, Mr. Saperstein, why haven’t I heard of lip print analysis before?”
“It’s not widely used.”
“And why is that?”
“We used to think that there aren’t as many occasions where lip prints are left at crime scenes, as opposed to fingerprints, which are quite common due to the handling of material objects. It’s kind of like the pinky finger. Prints of the pinky are not recorded in the national databases because they’re so seldom left behind by a perpetrator. But we’re finding that that’s simply not the case with lip prints—there are many instances where they’re left at crime scenes. A window, or door, for instance, where the criminal looks inside and holds his face right up to the glass. Not to mention cases where the suspect has left prints on a glass he drank from, on photographs, letters, envelopes—”
“Is it widely known, this lip print analysis?”
“It’s still not commonly practiced, but most criminalists I come into contact with know about it.”
“Sort of a trick of the trade?”
Saperstein grinned: “Yes, you might say that.”
Denton winced. He knew what was coming.
“So how many other tricks do you have in your bag, sir?”
“That’s not what I meant.”
“Again? I do wish you’d say what you mean. But allow me to rephrase. How many tricks were used in your analysis of the physical evidence?”
“You’re twisting my words,” Saperstein said calmly, though his face was shading red. “And if you truly want to—”
“I withdraw the question,” Warwick said. “I’ll ask you this instead: is this ‘trick’ one of your so-called scientific methods that we’re supposed to believe without questioning its validity?”
“You know as well as I do—”
“Just answer the question, please.”
“That’s what I’m trying to do, Mr. Warwick, if you’d let me speak—”
“A simple yes or no is all I want—”
“Objection, Your Honor,” shouted Denton. “He’s badgering the witness, and not permitting him the freedom to answer any of his questions.”
“Mr. Warwick. Make your point and move on. And please permit Mr. Saperstein proper time to answer your questions.”
Warwick nodded at the judge, and then turned back to Saperstein. “Yes or no, sir? Is this trick one of the so-called scientific methods that you and your collective colleagues used in evaluating this physical evidence?”
“I can’t answer your question within those narrow parameters.”
Denton smiled. Saperstein was not going to fall into another trap. He may have made a couple of mistakes, but he was one who learned from his errors and adapted.
“Your Honor,” pleaded Warwick with outstretched hands, “please direct the witness to answer.”
“Mr. Saperstein, please answer the question.”
Saperstein turned to Calvino. “I would like to comply, Your Honor, but I can’t answer it in the manner in which Mr. Warwick has phrased it. He’s twisting what I’m saying and attempting to force me into saying something that wouldn’t be accurate. Does the court wish me to answer incorrectly, or can I be given the proper opportunity to provide truthful information?”
“Answer the question to the best of your ability, sir,” Calvino said.
Denton fought back a smile. Saperstein had squelched a favorite tactic of adversarial attorneys who attempted to elicit certain testimony that appeared to be favorable to their case using the narrow parameters inherent in “yes” or “no” answers.
“There are no tricks or sleight of hand here,” Saperstein said. “Everything I do in the lab is based on scientific procedure. The tests I perform are widely accepted in the field of forensics, to the best of my knowledge. The—”
“Your Honor,” Warwick said, “would you please instruct the witness not to narrate but to merely answer the question?”
“I am answering the question,” Saperstein said. “Your Honor, counsel asked me if this was a trick or a scientific method, and I’m explaining what was done.”
“You opened the door, Mr. Warwick. Let’s hear his answer. Continue, Mr. Saperstein.”
“The method of lip print detection is called queiloscopy. It was mentioned in the literature as far back as 1902, and discussed in more detail in 1950 by a medicolegal consultant working on a case here in the Sacramento area. It wasn’t used as a means of personal identification until I believe 1960, when Dr. Santos of Brazil devised a system for classifying the differences in individuals’ lip prints. Around the same time, Japanese Professors Suzuki and Tsuchiahashi developed their own method of identification—”
“I have that paper right here,” Warwick said, tossing a few stapled pages onto the banister of the witness stand. “Is this what you’re basing your analysis on?”
“That is part of what’s accepted as baseline research in the field—”
“Read the highlighted portion, Mr. Saperstein,” Warwick said, pointing at the article.
Saperstein picked up the pages and read the portion Warwick requested. “Lip prints were collected from two hundred eight individuals, consisting of one hundred fifty males and one hundred thirty females, aged six to fifty-seven years.”
“So, Mr. Saperstein, this ‘scientific method’ you are so intent on using against my client is based on a research study of only two hundred eighty people? I would think that would be more scientific—and therefore more reliable—if the study involved thousands of test subjects. Wouldn’t it, sir?”
Saperstein took a breath and let it out slowly. “Is that a question you would like me to respond to, or do you want to answer that one yourself as well?”
Calvino scowled. “Mr. Saperstein, lose the attitude.”
Saperstein nodded apologetically at Calvino and turned back to Warwick, who was enjoying the moment of admonition. “Yes, Mr. Warwick, that study is what I’m basing my opinions on. That study as well as the follow-up study performed by the same researchers eight years later, in which one thousand four hundred people were evaluated. And the research involving one thousand five hundred people in the 1980s, conducted at the Department of Criminalistics of Civic Militia Headquarters in Poland.
“In that study, the patterns of the lines in the red part of lips were categorized, utilizing a ten-millimeter portion of the middle part of the lower lip—a section that’s almost always visible in a print. Several linear characteristics were identified: bifurcation, reticular, linear, and indeterminate. After the patterns were analyzed, nearly half a million individual properties were counted amongst the four hundred prints. This gave an average of over one thousand individual characteristics per lip print. By comparison, we get only one hundred individual characteristics per fingerprint.”
As Saperstein continued, it became evident that Warwick had not performed a complete international journal search for lip print studies; most of the information and research on lip print analysis had come from abroad and had been published in lesser-known journals.
“In our lab,” Saperstein continued, “Miss Harding’s sample lip print pattern was enlarged in a five-to-one ratio, traced, and then reduced back to its original size and scanned into the computer. The same process was completed for the evidentiary lip print found on the beer cans at the crime scene. Then, points of identification were marked for each of the samples and compared
visually by both the analyst and the computer. In general, if we don’t get an exact computer match, we look for at least seven different points that visually match. So in summary, Mr. Warwick, this was pure scientific method. No tricks or mirrors were involved.” Saperstein looked into Warwick’s eyes, which were narrow with anger.
“Nothing further for this witness,” Warwick said.
“Redirect,” Denton said.
Calvino nodded.
“Why didn’t you personally perform the testing on the physical evidence relative to the Mercedes?”
“I was in the hospital. I was suffering from what was diagnosed as ulcerative colitis.”
“Who did the testing of the physical evidence in your absence?”
“Kurt Gray.”
“And who is Kurt Gray?”
“He’s a criminalist.”
“With the same training that you possess in forensic science?”
“Yes, sir.”
“So he’s qualified to run the tests which he conducted.”
“Objection. Mr. Saperstein cannot qualify another witness.”
“Sustained.”
Denton scratched his forehead. “In your opinion, then, Mr. Saperstein, would you trust Mr. Gray to run tests on a case that involved you or your family?”
“Yes.”
“And did you personally perform the DNA testing and analysis?”
“Yes.”
“One last question, Mr. Saperstein.” Denton approached him and placed both hands on the railing of the witness box. “Whose side are you on?”
Saperstein looked perturbed, as if this question had caught him off guard. “I’m on no one’s side. My function is merely to conduct tests in a scientific manner and provide results that are accurate and reproducible.”
Perfect answer; Denton smiled. “Thank you, Mr. Saperstein. I have nothing further.”
Half an hour after Calvino dismissed the jury for the day, Hellman stopped by Denton’s office and knocked on the stippled glass of his door. “Nice job today, Tim,” he said.
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