Thank you, ladies and gentlemen. Please be seated. All right. Let the record reflect that we have been rejoined by all the members of our jury. Good morning, ladies and gentlemen.
THE JURY: Good morning.
My apologies to you for the late start this morning; however, I've been meeting with the lawyers in chambers to discuss some issues that may be coming up that I have to deal with and to advise you that there may be some other delays later this week, as I have some other issues I need to deal with. All right. We have Dr. Fredric Rieders back with us. Good morning, Dr. Rieders.
All right. Would you take the witness stand, please.
Fredric Rieders, called on behalf of the Defendant, having been previously sworn, resumed the stand and testified further as follows:
All right. The record should reflect that Dr. Fredric Rieders is again on the witness stand. And ladies and gentlemen, if you recollect, on July the 24th Dr. Rieders presented his direct testimony under questioning by Mr. Blasier and on July the 25th we started the cross-examination by Miss Clark. And because of Dr. Rieders' other commitments, we had to interrupt his cross-examination, completion of his testimony, and we are going to conclude his testimony this morning. Having said that, good morning, Dr. Rieders.
Doctor, you are reminded, sir, you are still under oath. And Miss Clark, you may continue with your cross-examination.
Thank you, your Honor. Good morning, ladies and gentlemen.
THE JURY: Good morning.
CROSS-EXAMINATION (RESUMED) BY MS. CLARK
Good morning, Dr. Rieders. When we left off with your testimony on July 24th, sir, we were talking about the Sconce case, a case in which the victim was--they were attempting to determine whether or not the victim died of natural causes or of oleander poisoning. Do you recall when we were discussing that, sir?
I wasn't trying to determine whether he died of natural causes. I was trying to determine if--
Sir, would you please listen to my question. Objection, motion to strike as nonresponsive.
Do you recall that we were discussing that topic when you last testified on July 24th, sir?
Do you recall that you were asked to test some tissues as to whether or not--whether or not the victim died of oleander poisoning in the case of People versus Sconce back in 1988?
I recall that Dr. Basil asked me to corroborate on the gate analysis which he had done for the Coroner to determine whether or not oleander constituents were present in tissues.
All right. And the reason that you were asked to do, that, sir, is to provide scientific evidence that would indicate whether or not the victim had died of oleander poisoning or of natural causes; isn't that true?
And you performed the analysis on tissues that were recovered from the 1985 autopsy, correct?
Is it your testimony, sir, that it had been in a freezer since the time that those tissues were taken at autopsy this 1985?
Sir, do you recall performing some of your testing on the fixing fluid known as formalin?
And that fixing fluid is used to preserve tissues that are refrigerated and not frozen; isn't that correct?
That fluid is used on tissues which may not even be refrigerated, which are kept in a glass jar in storage for making sections, but the tissues that Dr. Lovell sent me, or rather, that Dr. Basil sent me, because I got them from Dr. Basil, according to him and Dr. Lovell, had been kept frozen.
I think that that was in addition to tissues. I don't remember why, but the formalin that I received evidently had been in contact with the tissues because it turned--I believe it turned out to have oleandrin in it. I'm not sure about that. It is one of the pieces that goes with the case. That is all I recall--can tell.
What would be the purpose of having formalin? Why would you have formalin if the tissues were frozen?
Because the formalin would reflect the environment of tissues that are kept in formalin, I assume, or else the formalin was material used for embalming the body, I don't recall. Either one happens all the time, that with old cases one gets a sample of formalin, either from tissues--from wet tissues as they call it, or from the embalming fluid.
Is it your testimony, sir, that they put tissues taken from a victim at autopsy into formalin and freeze it in the formalin?
Excuse me. I made it very clear before that the tissues that are put in formalin are usually kept on a shelf, not even refrigerated.
Then the fact that you tested formalin fluid from the tissues taken from the victim in the Sconce case would indicate that they were not frozen right away, wouldn't it?
It doesn't indicate anything except that I got some formalin which could have been embalming fluid or it could have been formalin in which tissues were fixed.
Nevertheless, you did test the tissues and the formalin that was recovered from the 1985 autopsy, correct?
Exactly what is it that you are trying to refresh your memory about at this time, sir?
And the file that you are looking through, sir, is that your pile from the Sconce case?
The entire file or the rest of all kind of extraneous things are in the hands of Mr. Blasier.
And that would tend to indicate to you--never mind. Strike that. When you got the tissues, sir, were they frozen?
Yes. I got the tissues. I got homogenates and blood as they were frozen. They were shipped to me frozen by Dr. Basil.
And you performed three tests, correct, the radioimmunoassay fluorescent spectrometry and thin layer chromatography, correct?
Fluorescent spectrophotometry, yes, and high performance thin layer chromatography which is a little different.
Overruled. What is the relevance of the sixties? These tests were done in the late eighties.
Do you recall--when you began practicing as a toxicologist, that was in the fifties; is that correct, sir?
All right. When you performed those tests, the result you got was positive for the presence of oleandrin, correct?
And that is important because when you have decayed or decomposed tissue, the substance oleandrin may break down into a metabolite, in this case oleandrigenin, so even though you don't have oleandrin, if you have oleandrigenin, you can still substantiate that it is present; isn't that right?
I said no, that is incorrect. May I explain what is correct? Oleandrigenin is formed in the body as well when you take it--when you take oleandrin into the body. It is also formed in the plant itself, in the oleander plant itself. It also is formed if oleander--oleandrin starts to break down for any other reason. So in this particular case the issue was not whether this was a decomposed tissue, but whether or not there were compounds present which would give a pattern, which is more important than just a single compound that is consistent with and therefore corroborative of having originated in oleander, the constituents. That is what the oleandrigenin means in this case, that on the thin layer chromatography that plus some other metabolites or breakdown products of oleandrin, were found, giving a pattern which gives a high degree of identifiability to the compound because you have a whole pattern rather than just one little streak.
So then the finding of oleandrigenin was an important corroborative tool for you to determine that in fact that it was oleandrin that you saw?
All I have is the handwritten report. I don't have any of the typed copies, or a copy of the handwritten report I should say.
All right. Doctor, I'm going to show you a copy of the report--the typed report that you did back in the Sconce case. I will give a copy to counsel.
I'm going to show you a copy as well, doctor, and I'm going to ask you to point out where in this report that you determine that you found oleandrigenin?
You acknowledge that is an important finding, the oleandrigenin, yet you did not put that into the report?
It wasn't important to the report. It was important to my conclusion of the report to have enough factors to call this with reasonable certainty, the presence of oleander.
KEY QUOTEAnd let me ask you then, doctor, why was it not important to put in a report when you just acknowledged that the constituents of oleandrin were an important corroborative tool?
It did not include the finding of oleandrigenin in your report to Dr. Lovell; is that correct, sir?
Pathologist. And he had signed off on the report back in 1985 in which his medical examiner, Dr. Holloway, determined that the victim died of natural causes actually from a fatty liver--liver disease, correct?
You don't recall? You remember testifying in the Sconce preliminary hearing, do you not?
I don't recall it, but if a transcript says so, then I did. I'm telling you I don't recall.
Would it refresh your memory, sir, if I were to show you a page from that preliminary hearing?
Well, I don't--you know, I don't deny that I read it. I don't recall that I read it and I don't have a copy now of the autopsy report. That is all I told you.
Were you aware, at the time that you did your testing, sir, that there had already been an autopsy report prepared in which it was written that the victim died of natural causes?
Sir, were you--did you--when you testified at the preliminary hearing you recall testifying that there had been an initial determination that the victim died of natural causes based on the autopsy report, correct?
Counsel, I don't know what the relevance is of this because we've already established the reason he was doing this testing was to determine whether or not this person died as a result of oleander poisoning, not natural causes, so the jury already knows that. That was the purpose of this testing, so let's move on.
All right. Dr. Rieders, nevertheless, you acknowledge you did not write the finding of oleandrigenin into your report?
It was a part of the observation, an important part of it, just like in the paper that we wrote.
No, it is not in here the rad sheet and the thin layer results or the thin layer laboratory notes are not in here. None of the lab notes are in here.
KEY QUOTESo you have nothing in the notes now before you that indicate that you found oleandrigenin?
You recall testifying at the preliminary hearing in the Sconce case, sir? You never mentioned the finding of oleandrigenin, do you recall?
And if we take time over the break and I let you review the testimony that you have in the Sconce matter, you can refresh your memory as to whether or not you did in fact testify to that finding?
Okay. Dr. Rieders, do you recall having a conversation with a man by the name of Dr. Brian Finkle in Anaheim back in 1990?
And that man was a toxicologist for the Defense in the Sconce case; is that correct?
And you recall telling him that you found one spot on your thin layer chromatography which would indicate that you only found oleandrin and not oleandrigenin?
Absolutely not. I have a rather clear recollection of my conversation with Brian. That is not what I told him.
So if he came and told us that, sir, that would be incorrect? Is that your testimony?
All right. Now, you turned in your report indicating the finding of oleandrin, correct?
And after that you testified at a preliminary hearing in October of 1990 concerning your finding and that was a--concerning your finding of oleandrin in the body of the victim, correct?
And shortly after that the Defense and the Prosecution agreed to do retesting. Do you recall that?
Well, you testified in October of 1990 the Defendant was held to answer and the testing began in the beginning of 1991. Does that sound about right to you?
I thought it came in April of 1991 because when we met in I think Anaheim and Brian Finkle and I went over what I still had left, they hadn't done the testing yet. They hadn't contacted the testing people.
It wasn't exhumed. It was lying exposed in the mausoleum so it was pulled out of the mausoleum and reautopsied, what was left of it, by Dr. Lovell and a Dr. Root.
And at that time specimens were taken from that cadaver and those are the specimens that were then forwarded to--for testing.
Now, Dr. Rieders, you were aware of that exhumation--well for lack of a better term, exhumation, but you were not present, correct?
When Dr. Lovell called me and told me that he had done an exhumation with Dr. Root and that they had taken specimens and the half that Dr. Root had was going to Brian--to Jack Henion at Cornell and the other half he was going to send to me for safekeeping.
Can you think of any reason why Dr. Lovell would not keep those himself at the morgue?
All right. Now, shortly after that exhumation, sir, were you informed by the D.A. that the testing performed by Dr. Henion for the presence of oleandrin turned up negative?
I don't recall. The only thing I recall about Denoce is two things: One, that he--I was supposed to contact him prior to trial, but to wait. The other thing I recall is that he sent through Harvey Giss a paper to me which he asked me to review whether or not that could be a basis for questioning the results and that was a paper that dealt with a substance that is called national natrutic, N-A-T-R-U-T-I-C, hormone, which tends to cross-react with digitalis and probably oleandrin in the radioimmunoassay test. That is the only thing I recall about Denoce. That is the question only that he raised.
You don't recall discussing with Denoce--with Mr. Denoce the reason--well, let me strike that. You don't recall Denoce calling you to ask you to give him a scientifically acceptable reason that would reconcile your positive results with Dr. Henion's negative results?
Uh-huh. Let me direct counsel to page 6, the bottom of page 6, going up through all the page 7.
Yes, your Honor. I would ask that it be marked next in order--no, this is to his boss, Michael Bradbury.
Right. It is a memo from Kevin Denoce to Michael Bradbury and Harvey Giss in which--
It wasn't important to the report. It was important to my conclusion of the report to have enough factors to call this with reasonable certainty, the presence of oleander.
Absolutely not. Nobody asked me to reconcile anything.
If that is what he told you, he is mistaken or else--
No, it is not in here the rad sheet and the thin layer results or the thin layer laboratory notes are not in here. None of the lab notes are in here.