Good morning, ladies and gentlemen.

THE JURY: Good morning.

CROSS-EXAMINATION (RESUMED) BY MS. CLARK

Good morning, Mr. MacDonell.

Good morning, Mrs. Clark.

Now, you stated, sir, that you were the director of a crime lab, correct?

That's correct.

And you still are?

Yes.

And that is the crime lab that you own and operate; is that correct, sir?

That's correct.

How is your commute?

I commute by going from the upper level to the lower level. We either have the laboratory in the lower level and the--live in the upper level of the laboratory or the laboratory is in the lower level of the home, either way.

So your laboratory is in the lower level of your home; is that correct, sir?

That's correct.

And that is a profit-making business, isn't it?

It is supposed to.

Hopefully.

Sometimes it isn't.

But isn't that where you derive most of your income, sir, from the laboratory?

Yes. Directly or indirectly, yes.

And you have had how many employees working for you, sir?

At the current time I have one full-time and other people come in from time to time as needed. I have had as many as nine part-time people at one time.

But as far as regularly employed people that work for on a full-time basis, it is one; is that correct?

That's correct.

So on a full-time basis, the lab consists of yourself and one other person?

That's correct.

Now, sir, in your lab do you have a dark room?

We have two dark rooms, yes.

Two dark rooms. You are an accomplished photographer, are you not, sir?

I would say yes. I taught forensic photography and had two photo studios, yes.

And would you consider photography to be a key aspect of your job?

Absolutely.

And do you feel that that is a very important aspect of the talents that you have, sir, your ability to photograph forensically?

Well, it is extremely important to document certain things. Sometimes photographs are not needed, but it is certainly a very important asset to be able to take good photographs.

As a matter of fact, sir, when you don't take notes contemporaneously with an observation, if you do take photographs, that will document what you see; isn't that correct?

Mostly it will, yes.

Now, in this particular case, sir, on April the 2nd, 1995, who was directing the photography of the sock?

Basically Dr. Lee was, but we alternated, we looked at different areas in the microscope, and I believe he actually took the photographs, but we both saw what it was prior to it being photographed.

Now, in this case you have told us about six or seven of those little balls, only one of which was brought into court in the form of a photograph, correct?

That's correct.

You did not direct that any other photographs be taken of the other little balls; is that correct?

No. Actually I didn't know how many photographs Dr. Lee took. This is the one that I have seen most often and I think it is an excellent photograph to show what we saw.

But you did not direct that the other little balls that you are now describing verbally to the jury be depicted in a photograph so that they could see it as well?

That is correct.

And in your judgment, sir, in your opinion wouldn't it have been appropriate or a good idea to take pictures of all of those little balls so the jury could see them all?

I don't believe so. We described them. They were there and one that was representative and perhaps showed the bonding of the--not only the red material that dried to a fiber, but the fiber being bonded to a thread, I think that was the best one this we could use as an example.

Nevertheless, sir, the six or seven little balls that you have described is a key aspect of your testimony, wouldn't you agree?

No. I think that is just making the same point six or seven times over.

You don't think that it would be important to let the jury see everything that you saw on April the 2nd, 1995?

Objection, argumentative.

Sustained.

Let me ask you this, sir: It was Dr. Lee that directed the photograph be taken that was brought into court of that little ball on the fiber?

Yes. Collectively we both looked at it and he said "This is one we should photograph" and he did.

In your judgment, sir, you are an expert in blood spatter analysis, are you not?

Interpretation.

Interpretation, excuse me. And in your judgment, sir, who is the more qualified expert in blood spatter analysis, yourself or Dr. Lee?

I think that is an unfair question. I would not rate Dr. Lee in any way. We have worked on many cases together and been on many seminars teaching the subject of bloodstain pattern interpretation. I have never given him any examination and he has never given me one. I would say he is imminently qualified and I would like to believe I am.

Would you say, sir, that you are both equally qualified?

I think that is a fair statement, yes.

Wouldn't you say you also had equal say in which photographs were to be taken to document the observations that you made on April 2nd?

That is true.

And you did not direct that any additional photographs be taken of the one that was presented in court today of that one little ball?

That is correct.

Now, you did not write, when you said notes the other day that you had taken, those notes contain no description of the little balls that you have come here to testify to; is that correct?

That is correct.

Nor does the report you wrote on July 11th contain any description of the little balls that you have testified to here in court; isn't that correct?

That is correct.

Now, if as a scientist, sir, you are supposed to document everything that you see contemporaneous with the observation, and photography is one way of doing that. Wouldn't it have been very important, in view of the fact that you made no notes at the time of your observation, to take photographs of all of it, if only to refresh your own memory as to what you saw?

In this case it wasn't necessary. I can remember those spots that I saw very distinctly and I knew that photographs were being taken and I could see no point in writing down a note that says I'm looking at little red balls. I remember them very well.

Well, sir, isn't it true that in your report you wrote that the outer stain was a swipe, correct?

Correct.

Objection, asked and answered. Excuse me. Asked and answered several times.

Overruled.

And then you testified, I believe yesterday, that you looked at photographs and based on your reexamination of the photographs determined that in fact it was a compression and so testified? Do you recall that, sir?

Yes, I do.

In that regard then, sir, having had the photographs to review, you actually changed your opinion as to the appearance of a stain from swipe to compression; isn't that true?

Objection. We have been over this several times yesterday.

Overruled. It is a new point, counsel.

If the difference is a slight marginal variation, sir, why did you not say that during direct examination when you were making the point to the jury that in your opinion this was a compression and not a--

Sustained. Sustained.

Nevertheless, sir, your documentation of the appearance of the outer stain was what led you to make a different characterization of the appearance of that stain; is that correct?

It is not a different characterization. It is simply an adjective adding swipe makes it a little bit more on one side than another. Depending upon which photograph I look at, I could use either term. There is really no difference between them as far as that particular stain is concerned.

Did you know--

Any term you like I will agree with.

Would you agree at this point, sir, it could be a swipe, it could be a compression and it really makes no difference? Is that your testimony?

That is correct.

Nevertheless, it was the presence and the use of the photographs that you took to document your observations at the time of the examination that caused you to take a step farther away from swipe and testify that it was compression, was it not?

No.

Then what was it, sir, that changed your mind from the time you wrote your report indicating it was a swipe to the time you testified and indicated on direct examination it was a compression?

It was a photograph Dr. Lee took.

The photograph Dr. Lee took. And there are no other photographs than the one to document your observation of the little balls than the one little ball you brought into court today--yesterday; is that correct?

Objection. Asked and answered now many times.

Overruled. Last question on this line.

That is correct.

Now, sir, if you and Dr. Lee are of equal stature in the field of blood spatter interpretation, what was your role there? Why do we need two? Why did you need to have two people present to examine the sock?

Sustained. Sustained.

Can you tell us what your role was--strike that. Dr. Lee, in your opinion, is as qualified as you are in blood spatter interpretation, correct?

Yes, I would say that.

And he was examining that sock under the microscope along with you, correct?

That's correct.

And he was directing what photographs should be taken; is that correct?

We were deciding between ourselves which photographs should be taken; he merely took them.

Okay. Then can you tell us, sir, for what--what was your role in the examination on April 2nd if the two of you were owe equally qualified looking at that same pair of socks?

Objection, argumentative and irrelevant.

Overruled.

I was there at the request of attorneys to conduct an examination with Dr. Lee. I have no idea why they asked for two. They might have asked for three, but that is not something that I am privy to. I don't know why they asked for two.

All right. Your lab--your work is not monitored by any independent agency; is that correct?

Not that I am aware of, no.

And I think that you agree, sir, that the only check or balance for quality assurance on your work is that an opposing side may read your report of your conclusions and disagree?

Objection, your Honor, argumentative.

Overruled.

Well, they may read my report and they may disagree or they may agree with me. They don't disagree by reading the report. It depends upon what they feel.

I'm sorry.

Right, but the only check or balance for quality assurance that you have, sir, is when the other side reads your report? They may agree or disagree, but that is your check or balance, correct?

You could call it that, yes.

There are no validation studies administered to you by outside agencies; is that correct?

That's correct.

No blind studies are administered to your laboratory by another agency or organization; is that correct?

Not by other agencies, correct.

And unlike Cellmark where they have in-house blind studies to test their quality control or the accuracy of their testing methods and results, you have no such blind?

Objection, assuming facts not in evidence.

Overruled.

And argumentative.

Sustained. Rephrase the question.

Sir, have you heard testimony from a representative of Cellmark that they do conduct blind studies of their own testing procedures and methods to make sure that their quality control is kept up?

Objection, irrelevant and also--

Sustained.

Okay.

Do you have any blind studies that you conduct, sir, within your laboratory, for purposes of quality control?

Yes.

And what is that blind study that you conduct?

I prepare samples or we receive evidence, actual evidence, and Mr. Kish and I review it independently and that would be, in my opinion, a blind test. If we agree, then we have conducted a verification of each other's ability to arrive at the same conclusion.

And if you disagree do you publish the results, sir?

I can't remember when we have disagreed.

So you have always agreed with each other?

On evidence matter, interpreting bloodstain matters, we discuss it and we agree, yes.

So if you always agree with each other, sir, it is only between the two of you working together; is that correct?

Yes.

So if you always agree, do you consider that to a blind study that is a check on your quality control?

I sure do. I don't know what he is going to say and he doesn't know what I am going to say. That is blind.

I'm sorry?

That is a blind study.

If you should disagree, there is no record kept of that so anyone would know?

Objection, your Honor.

Sustained. Rephrase the question.

You keep no records of the time you agree or disagree; is that correct?

Objection. It assumes facts not in evidence. He already testified that he disagreed.

Counsel, you are getting close there. Sustained. Proceed.

How many years have you been working with Mr. Kish, sir?

Well, actually he works with me. I would say I think six or seven, something like that. He has assisted me with many bloodstain institutes, so I could go back and see the first one he helped me with. I think it was about six or seven years ago.

Is he on your payroll, sir?

Yes, he is.

And you pay his--is it a regular salary that you pay him or is it case by case?

It varies. It is a regular salary, but because I'm letting him do more and more cases independent of myself and somewhat semi-retirement, you might say, I really do not have any financial control over some of his cases. Some of them I do. If they come to me and I assign them to him and he works on them, then he receives a substantial amount of the fee.

Okay. So he is dependent on you for his livelihood; is that correct, sir?

Yes.

And he is the one who is your check or balance as to whether or not you have made a correct interpretation or not; is that right?

Yes, you could say that.

Is there any licensing required for your lab, sir?

No.

Or monitoring of your lab by an independent agency?

Not monitoring as such, but I was a member of the be New York state crime laboratory advisory committee for many years and there are fourteen laboratories in New York state of which my laboratory was one and that was a discussion group more than certification or anything of that nature.

Right. Your lab is not certified by any agency; is that correct?

That is correct.

And the group that you just spoke of does not monitor your lab for appropriate operating methods or procedures, does it?

No, it does not.

And there are no requirements that you personally be tested at any time to prove that you are using a approved method in your analysis of cases; isn't that correct, sir?

And that would depend on how closely you were cross-examined; is that correct?

How detailed.

Objection, assumes a fact that is not in evidence.

Overruled.

How detailed; not closeness.

Okay. I will agree with you. How detailed the cross-examination is; is that correct, sir?

Yes.

And if the cross-examiner knows virtually nothing about bloodstain pattern interpretation, then the cross-examination would not be very detailed at all, wouldn't you agree?

Your Honor, speculation. It is irrelevant.

Overruled.

Well, it is difficult to say how much an attorney knows about bloodstain pattern interpretation. I have had several attorneys attend the institute and I would like to think that those attorneys could do a very good job. As yet I have never been cross-examined by one of my former students, so I really don't know, but the more they know, the better job they can do and it helps me a great deal because they don't ask questions which might seem logical but are scientifically incorrect.

Nevertheless, sir, the degree to which you are tested by cross-examination, since that is the only means of your being tested for your current knowledge of the state of the art--

Objection, your Honor. That is not his testimony.

Sustained. Rephrase the question.

You indicated that the only way by which you are tested to prove--to show that you are using approved methods or sound methods of analysis is by the nature of the cross-examination; is that correct?

Well, I would use the word "Challenged" rather than "Tested," but yes, that is correct.

In which case you are only as challenged as the cross-examiner is effective; isn't that correct?

Or as they wish to be. They may decide not to ask many questions if they feel it will not be to their advantage. I can't read their minds.

All right. Let's move on.

All right. Now, if the other side, whatever side that may be, disagrees with your opinion or your conclusion, does that give you some indication, sir, that your view may be in error?

Objection, your Honor.

Sustained.

Sir, do you believe that you can make mistakes?

Certainly.

And do you think that--have you ever drawn the conclusion that you have made a mistake based on the opposing side disagreement with your conclusion?

No, that is not the kind of mistake I'm referring to.

Well, what kind of mistake are you referring to, sir?

I'm sorry?

I couldn't get my airline reservation last night because I'm here today and it was a mistake telling me wife I would be home this morning at ten o'clock. That was a mistake.

Well, sir, I'm talking about your work. Has it ever occurred that another--the other side has disagreed with your conclusion and that that disagreement has caused you to reexamine your position and determine that you have made a mistake?

No.

And yet you have testified that the only check or balance quality control, if you will, on your work is when the opposing side disagrees with you?

That is correct.

And yet when they do disagree with you that does not cause you to reexamine your work and possibly conclude you made a mistake?

May we approach, your Honor?

Yes. With the court reporter.