Cross-examination of Michele Kestler (part 2)

📄 Cross-examination of Michele Kestler (part 2) — Wednesday, August 16, 1995

Address:

C:\DEPT103\CRIMINAL\1995\AUG\16\CROSS-EXAMINATION-OF-MICHELE-K.DOC

TRIAL

▲ Day 137 of 167

◀ Sidebar: evidence terminology Redirect examination of Michele Kestler ▶

Witness: Michele Kestler
Examiner: Christopher Darden
Called by: Defense • Date: Wednesday, August 16, 1995 • Utterances: 98

Darden concludes his redirect examination of SID lab director Michele Kestler, covering three areas: the visible blood stains in the Bronco (and whether they showed signs of having been swatched), the extraordinary accommodations the lab made for the defense including allowing experts inside during testing and opening on Saturdays, and the Fung/Mazzola OIC discrepancy. Kestler closes by revealing she is chairman of the ethics committee for ASCLD, bolstering her credibility on lab standards.

# 1 (The following proceedings were held in open court:)

# 2 MR. DARDEN:

Mrs. Kestler, you've seen blood before, right?

# 3 MS. KESTLER:

Yes.

# 4 MR. DARDEN:

And when you looked in that Bronco, you saw a number of red stains inside; is that correct?

# 5 MS. KESTLER:

Yes.

# 6 MR. DARDEN:

Did you see a red stain on the door, interior door?

# 7 THE COURT:

It's vague. I assume the car has more than one door.

KEY QUOTE

# 8 MS. KESTLER:

Yeah. I was going to say.

# 9 MR. DARDEN:

Got me, your Honor.

# 10 MR. DARDEN:

Did you see a red stain on the interior driver's side door of the vehicle?

# 11 MS. KESTLER:

I believe so, yes. Yes.

# 12 MR. DARDEN:

Did you see a red stain on the driver's seat?

# 13 MS. KESTLER:

Yes.

# 14 MR. DARDEN:

Did you see a red stain on the armrest or console?

# 15 MS. KESTLER:

On the console, yes.

# 16 MR. DARDEN:

Okay. Would that be--and would that console be located to the right of the driver's seat and in-between the driver's seat and the passenger seat?

# 17 MS. KESTLER:

That's correct.

# 18 MR. DARDEN:

In fact, you saw more than one red stain on that console; is that correct?

# 19 MS. KESTLER:

That's--it appeared to be--yeah. I think it was more than one. It was difficult to tell if it was continuous. It was a faint smear over a large area and then it appeared to--it was difficult to tell whether it continued around or if they were separated.

# 20 MR. DARDEN:

And was it your understanding that those areas had already been swatched by Dennis Fung?

# 21 MR. NEUFELD:

Objection.

# 22 THE COURT:

Sustained.

# 23 (Discussion held off the record between the Deputy District Attorneys.)

# 24 MR. DARDEN:

But you could see that blood; is that right? I'm sorry. You could see those red stains; is that right?

# 25 MS. KESTLER:

That's correct.

# 26 MR. DARDEN:

And was it your understanding that the blood on the console had already been swatched?

# 27 MS. KESTLER:

Based on previous--

# 28 MR. NEUFELD:

Objection. Same objection, your Honor.

# 29

THE COURT: Sustained. (Discussion held off the record between the Deputy District Attorneys.)

# 30 MR. DARDEN:

And looking at the red stains that you saw on the console, could you tell just by looking at them whether or not they had been swatched?

# 31 MS. KESTLER:

Up close when they were observed, they appeared to have been smeared.

# 32 MR. DARDEN:

And is that consistent with the stains having been swatched?

# 33 MS. KESTLER:

Yes.

# 34 MR. DARDEN:

You told us earlier that you inventoried some items; is that correct?

# 35 MS. KESTLER:

Uh, yes. On June 29th.

# 36 MR. DARDEN:

Okay.

# 37 MS. KESTLER:

Is that--I'm sorry.

# 38 MR. DARDEN:

By the way, did you ever inquire of anyone at Viertel's tow as to whether or not anyone had bled inside that Bronco?

# 39 MS. KESTLER:

No. At Viertel's? No.

# 40 MR. DARDEN:

Okay. You inquired of someone else?

# 41 MS. KESTLER:

No. I believe I asked the detectives or I was told--

# 42 MR. NEUFELD:

Objection as to what she was told.

# 43 THE COURT:

Sustained. Sustained. Next question.

# 44 MR. DARDEN:

Your lab does not allow Defense experts inside the lab?

# 45 MS. KESTLER:

No, not routinely. There's a policy.

# 46 MR. DARDEN:

Is that a written policy?

# 47 MS. KESTLER:

No, it's not in writing.

# 48 MR. DARDEN:

Okay. But that is the lab policy, isn't it?

# 49 MS. KESTLER:

I take that back. It is in writing for the firearms unit, but not for the rest of the laboratory. Yes.

# 50 MR. DARDEN:

Okay. But you changed that policy for the Defense in this case, didn't you?

# 51 MR. NEUFELD:

Objection, your Honor. That's not--that's assuming facts not in evidence.

# 52 THE COURT:

Foundation.

# 53 MR. DARDEN:

Okay. Well, given your policy precluding Defense experts from entering the lab, in this particular case, did you allow Defense experts into your lab?

# 54 MS. KESTLER:

Yes, we did, at the request of your office and our higher authorities in the department.

KEY QUOTE

# 55 MR. DARDEN:

And in fact, you've made your employees available to the Defense to be interviewed; is that right?

# 56 MS. KESTLER:

That's correct.

# 57 MR. DARDEN:

You've bent over backwards for the Defense, haven't you?

# 58 MR. NEUFELD:

Objection.

# 59 THE COURT:

Overruled.

# 60 MS. KESTLER:

I believe we've done as much and in fact more in some areas than we do in normal cases. When I say normal cases, I mean on a normal basis.

KEY QUOTE

# 61 MR. DARDEN:

In fact, haven't you actually opened the lab on a Saturday when it would otherwise be closed so that the Defense could come in and examine the items of evidence in this case?

# 62 MS. KESTLER:

Yes, we did.

# 63 MR. DARDEN:

You also have a policy that precludes Defense experts from being present when testing is ongoing; is that right?

# 64 MS. KESTLER:

That's--yes.

# 65 MR. DARDEN:

But have you allowed Defense experts to be present while testing was ongoing?

# 66 MS. KESTLER:

Yes. In this case, again, we did in some instances.

# 67 MR. DARDEN:

And is there a reason that you don't allow Defense experts to be present during testing?

# 68 MS. KESTLER:

Well, there's several reasons, but the primary--two primary issues involved here is, one, we have to maintain the integrity and the confidentiality of all other cases. We have to put everything else away and no other work gets done at the time that that's going on. And the second reason is safety. I cannot guarantee the safety of any other expert in the laboratory and we are liable.

# 69 MR. DARDEN:

And so if I understand you correctly then, when Defense experts in this case are present inside your lab, no other testing goes on inside the lab?

# 70 MS. KESTLER:

That's correct.

# 71 MR. DARDEN:

So other cases that are being tested and analyzed by SID, those procedures have to stop, don't they?

# 72 MS. KESTLER:

That's correct.

# 73 MR. DARDEN:

How many cases do you process within the SID lab during any given year?

# 74 MS. KESTLER:

In a year, probably at least 50,000 plus cases a year.

# 75 MR. DARDEN:

Okay. Can I have one moment? I'm just about done.

# 76 (Discussion held off the record between the Deputy District Attorneys.)

# 77 MR. DARDEN:

You indicated earlier that you were concerned that Andrea Mazzola had been listed as OIC on one of the reports in this case.

# 78 MS. KESTLER:

That's correct.

# 79 MR. DARDEN:

Okay. And why were you concerned?

# 80 MS. KESTLER:

I was concerned because I didn't believe that she in fact was the OIC at the crime scene. My understanding was that Dennis Fung was or policy would be that Dennis Fung would be the OIC at the crime scene, and I was concerned that she was listed that way because I couldn't understand why that had been done, and that was later explained to me.

# 81 MR. DARDEN:

Okay. Now, Dennis Fung is a criminalist iii; is that right?

# 82 MS. KESTLER:

That's correct.

# 83 MR. DARDEN:

Andrea Mazzola was a criminalist I?

# 84 MS. KESTLER:

That's correct.

# 85 MR. DARDEN:

And what is the policy, that is when a iii, grade iii criminalist and a grade iii, I criminalist goes to a crime scene? Who is in charge?

# 86 MS. KESTLER:

The iii is always in charge. He's the supervisor, or whether it's a supervising criminalist or a iii or even a ii, they're always in charge.

# 87 MR. DARDEN:

And did I understand you to testify that Dennis Fung was not required to write a report when he conducted a presumptive test at the Bronco on July 6th?

# 88 MS. KESTLER:

Not a formal report. Not an analyzed evidence report.

# 89 MR. DARDEN:

Now, you have a master's degree in criminalistics; is that correct?

# 90 MS. KESTLER:

That's correct.

# 91 MR. DARDEN:

And you had to write a thesis to obtain that master's degree?

# 92 MS. KESTLER:

Yes, I did.

# 93 MR. DARDEN:

And we've heard a lot about Asclad. What relationship, if any, do you have personally with Asclad?

# 94 MS. KESTLER:

I've been a member of the American Society of Crime Laboratory Directors since 19 I believe 83 and I've been a member of the board of directors for the last three years and I'm the chairman of the ethics committee.

# 95 MR. DARDEN:

You're chairman of the ethics committee for Asclad?

# 96 MS. KESTLER:

That's correct.

# 97 MR. DARDEN:

Thank you.

# 98 (Discussion held off the record between Defense counsel.)

Temperature

procedural

Key Quotes (5)

Michele Kestler

Yes, we did, at the request of your office and our higher authorities in the department.

Kestler confirms the lab opened to defense experts, but notes it was done at the prosecution's and department's direction — subtly deflecting any credit.

Michele Kestler

I believe we've done as much and in fact more in some areas than we do in normal cases.

Direct rebuttal to the defense narrative that SID stonewalled or obstructed the defense; Darden uses this to undercut contamination/conspiracy claims.

Michele Kestler

I cannot guarantee the safety of any other expert in the laboratory and we are liable.

Explains the policy precluding defense experts during testing, grounding it in practical liability rather than obstructionism.

Michele Kestler

I've been a member of the board of directors for the last three years and I'm the chairman of the ethics committee.

Darden closes on this fact — Kestler chairs ASCLD's ethics committee, the very body by whose standards the defense has attacked SID's accreditation.

Lance A. Ito

It's vague. I assume the car has more than one door.

Rare moment of judicial wit; Kestler's 'I was going to say' and Darden's 'Got me, your Honor' show a briefly relaxed courtroom.

Evidence (1)

Informal

Red stains observed on the interior driver's side door, driver's seat, and console of the Bronco

discussed — Kestler confirms visibility and notes the console stains appeared smeared, consistent with having been swatched

Notable Exchanges (3)

Christopher Darden•Michele Kestler

Darden walks Kestler through the full list of defense accommodations: lab access, Saturday openings, presence during testing. Kestler confirms each and notes all other SID casework — 50,000+ cases per year — had to halt whenever defense experts were present.

strategic

Christopher Darden•Michele Kestler

Darden revisits the Mazzola-as-OIC discrepancy; Kestler explains she was troubled because policy required Fung (the senior Criminalist III) to be listed, but the error was later explained to her.

clarifying

Lance A. Ito•Christopher Darden•Michele Kestler

Judge sustains a vagueness objection sua sponte on Darden's 'interior door' question, prompting Kestler's 'Yeah. I was going to say' and Darden's self-deprecating 'Got me, your Honor.'

light

Light Moments (1)

Lance A. Ito

Judge Ito notes Darden's question about 'the door' is vague since the car has more than one; Kestler and Darden both react with good humor.

Credibility Attacks (1)

⚔ SID / LAPD Crime Lab

rehabilitation

Darden uses Kestler's own testimony to counter prior defense attacks — showing the lab went beyond normal procedure to accommodate the defense, and that Kestler personally chairs ASCLD's ethics committee.

Objections

5 objections (3 sustained, 2 overruled)

Proceeding 7329 • 98 utterances • Defense witness

Criminal Trial

Department 103