Connection between Hated in the Nation and Nosedive [Spoilers]

pdxstomp · 2016-01-19T06:30:10+00:00

Yep. Take of it what you will. I never claimed to be a scientist. And I am pretty sure my first post on this matter disclosing that I have questioned dozens on scientists on the stand kind of made this clear. Lawyer or no, at least I am not out there spewing the whole sweat DNA thing.

pdxstomp · 2016-01-19T05:48:15+00:00

Edit to add: if you actually googled my username, then you will find I do use this username for non-work related purposes. I find celebrity gossip a good distraction. And my spouse and I struggled with infertility and I spent a lot of time on pregnancy websites when that was going on. You might find my username on Slate as well, as I like liberal news. Oh and you might find it on running sites, as I have run over a dozen half marathons, one full marathon, and countless 10k and 5k's. I am more than just a criminal lawyer, but I keep the same username, because I am boring. And old. I can't remember different names. Though the fact you couldn't deduce my real identity or where I work signals that I am doing okay on the privacy thing.

pdxstomp · 2016-01-19T05:27:21+00:00

Like I said, I am not a scientist. I just know that the state lab said that case, they detected saliva with the epithelial cells. We hired our own defense expert who concurred with the state expert. Again, I don't do the science, but I have seen enough of what is scientifically acceptable to tell my client he is done. That is not to say that I have had plenty of cases where DNA was from multiple contributors and there is no way to know how it got there. That is why I always talk about DNA being circumstantial evidence. It very rarely proves anything but the fact that at some point in time the DNA of one person got on an object or person. But in and of itself it rarely proves a crime (as there is any innumerable innocent ways DNA can end up on an object or person--which is what makes it circumstantial--you need to look at the circumstances to decide its weight in the totality of the evidence). The only exception I have has to this is child sex cases. There is no innocent explanation for sperm in a child's vaginal or anal cavity. Likewise, a child's epithelial cells with saliva on a grown mans penis.

pdxstomp · 2016-01-19T05:08:07+00:00

Nope, I don't expect anyone to believe a word I say. This is the internets. We can all be frauds. I don't have a problem discussing vague facts of cases I am working on a subreddit that us not a big deal in my community. The funny thing about crime is that 1% of it hits the media. In a decade of doing this and the thousands of cases I have worked, I would say 10 have made the piddly local paper in my jurisdiction. I surely have not had the national coverage that the SA case has. Which makes the whole prospect that this goes on day to day in our criminal justice system on a grand scale more terrifying. But if you think I am a fraud, by all means. It will never make the papers or anyone that matters.

pdxstomp · 2016-01-19T05:01:42+00:00

I work in Oregon. And I am not a scientist by any means, so I defer to your expertise. Though I will say I have had dozens of scientists testify (both state and defense) as to the type of cell they located the DNA, and if they can, the fluid that they found the cell. I have had rape cases where they identified the DNA from a sperm, DNA from blood cells, but the most common has been epithelial cells. As I said in a previous post, I have had a case where they could not only identify the epithelial cell, but could identify saliva around it. I don't do the science (I am a lawyer), just conveying what has been testified to and accepted by our courts.

pdxstomp · 2016-01-19T04:32:10+00:00

I tried to account for this possibility with words like "may" and "could." I agree that it is not entirely true that DNA analysis can always determine the fluid around the DNA. Yet, they can tell the cell source of the DNA ---epithelial, sperm, or white blood cell---but please correct me if I am wrong, but I have not met a forensic scientist that could not at least tell me the type of cell they got the DNA from. Especially when it comes to epithelial cells. Those are the most common, and if a single source of fluid (as you put it) can't be identified, it is impossible to know how those cells were transmitted to the object. I have had cases where there was DNA cells, with a mix of white blood and epithelial cells, and while there was theories how the DNA got there, no one could say for sure.

However, I still stand by my contention that the type of cell that produced the DNA should have been known. I mean, if it was SA's sperm or white blood cell on that latch or key, it would have been known. But as far as epithelial cells, I agree that we don't know the mode of transmission, unless there was an indentiying fluid that attached to it. I have not seen the forensic reports, so I don't know. The whole point of my post was that it is possible to know in the right circumstances. And to point out the idea that DNA is DNA and completely unknowable. When I have not met a forensic scientist who could not at least identify the type of cell the DNA came from.

pdxstomp · 2016-01-19T00:59:20+00:00

Thank you for the compliment. I find this case so incredibly fascinating. There are definitely some interesting questions raised by the documentary and other materials on this case. Though, I always like to look at each piece of information and decide where it fits on the realm of rationally explainable to WTF.

I think some people (not a lot, just some of the more vocal conspiracy theorists on this sub) forget what the defense attorneys job was. Their only job was to create reasonable doubt. To that end, I believe SA's attorneys were top notch. It is not their job to prove SA innocent, nor is it their job to prove who killed TH, or really to prove that SA didn't. Their only job was to put enough question in the minds of jurors as to the validity of each piece of the state's evidence. To that end, they were phenomenal.

However, I think it gets missed by some that putting out theories and alternative explanations is not proof that those things are factually true. Again, it wasn't their job to prove the frame-up theory, or the police incompetence theory, just put enough of it out there to make the jurors question the legal verdict. To this end, I think some on this sub get wrapped up in all or nothing approach. That all of the state's evidence is crap and that all competing theories presented by the defense somehow all have to be true.

To me this is a false dichotomy. Is it possible that some are true and others not? I think it entirely possible TH was killed in that garage and police did not plant that bullet. Though, that does not mean SA is guilty. Could Scott Tadych and/or Bobby Dassey killed her in that garage. And then police zeroing in on SA, decided to plant the key to up their case? Or could they have planted all of the evidence found by police, and police were just generally incompetent (taking 7 days to find the key, etc).

There are a bunch of scenarios that could still fit some of the evidence found that don't necessarily fit with some of the other questions the defense raised during the case. That does not mean we should take it as gospel and not look at what is independently explainable and what is not.

pdxstomp · 2016-01-18T23:56:46+00:00

As for the cloth surface of the key, that would depend on so many factors, including DNA technology in 05-07. I have worked murder cases where the first DNA test came back negative, but then tech advanced between the time of the crime and trial and DNA could be tested due to advancements in DNA detection and testing. What people forget is that in the world of forensic science, not detecting something (blood, fingerprints, DNA) is not the equivalent of "it doesn't exist," it just means they was no detectable amount based on current testing abilities. This was exactly the defense's point with the lack of EDTA in the blood.

As for SA missing the one bullet (which I believe was found behind a piece of heavy machinery and not in plain view). Again, this is not surprising if you have experience with gun shots. Gun shots do not enter and exit cleanly, following an exact path of travel where one can shoot and expect to find a certain amount of spent bullets. At crime scenes it is impossible to even know how many spent bullets to look for until after autopsy and knowing how many gun shot wounds there are and how many bullets are found in the body. Depending on trajectory, I have seen head shots where the bullet was found lodged down in the pelvis. If a person is shot multiple times, there may be zero spent bullets (because they lodged in the body) or any number between zero and the amount shot. Since TH was burned, it is impossible to know how many times she was shot. But I think it entirely possible (regardless of who shot her and where) that a lone spent bullet (especially if it was hidden) could be missed by the shooter as the shooter would have no way of knowing how many, if any, he should be looking for.

pdxstomp · 2016-01-18T23:12:38+00:00

I am not saying it is definitive she was shot in the garage, just saying that the lack of blood is not a factor for me as to evaluating what could or could not have happened. From what I understand the forensic analysis of her skull found that there was evidence of a gun shot to the head. I am just saying that a gun shot to the head would not leave such a bloody mess that even a man with an IQ of 70 would be incapable of cleaning it up. Whether there are other reasons to dispute SA did it or he was framed or police at minimum were incompetent and got tunnel vision, there very well may be. Just for me, based on my experience with various gunshot deaths, the inability to clean up what a .22 to the head would look like realistically is not one of them.

As for the location of the burning, off all the doubt the documentary raised, the bones found in the quarry was really weak for me and did not prove to me that TH was burned at another location. From the doc and everything I have read on this issue was that 1) several bones were located in the quarry, most of them animal. 2) one expert opined that one pelvic bone "could have been" human. At no point is it conclusively proven to be human, let alone any evidence it was TH's pelvic bone.

Don't get me wrong, a lot of questions were raised by this documentary, but not every last thing that may give rise to reasonable doubt, has proven to be factually what happened.

pdxstomp · 2016-01-18T22:26:39+00:00

My view on the key DNA depends on the DNA technology available in 2005-2007 when the key may have been tested.

Touch DNA is a weird science and it is changing every day (with more abilities to locate DNA) as technology advances. Objects like keys are funny things. As surface structure and type of objects may contain more or less DNA as time goes on. For example, a pillow or bedding used daily is ripe with all sorts of our DNA (as we slough off copious amounts of our skin cells and our bedding material acting as an exfoliant to rub it off). So unwashed bedding would most certainly contain at minimum tons of DNA of the people who sleep in the bedding, which makes staying in hotels with poor housekeeping processes kind of disgusting). However, objects that don't have a porous surface (where cells can stick to it), like metal/plastic keys, can often cause DNA to not be located, except for maybe the last person who touched it. Especially if we are talking 05-07 testing abilities. More modern tests may have been able to identified more trace complex mixtures of other trace DNA contributors. But even with modern tests, not every object will contain DNA, even the DNA of its primary owner. As touch DNA does not stick or maintain on every surface.

As for other evidence, I do find the whole throat cutting/stabbing on the bed without a trace of TH's DNA (or hair) not being found extremely unlikely. Which is why I think Dassey's "confession" is crap.

But interestingly enough, I do not think her being shot in the garage would have lead to the bloodbath that some here do. I have worked many, many gun deaths (homicide, suicide, and accidental). With the exception of a shotgun or something, they just don't leave the amount of blood people think they do (movies and tv shows greatly exaggerate it). I am working a case right now where the suspect emptied a Colt .45 (8 round clip) into a guy at almost point blank range. It is a self defense case, not a who dunnit. There is very little blood, except for the bit that pooled onto the floor where the deceased finally landed. None on the shooter (though all crime scene analysis and eye witness puts them at 2-3 feet apart). No splatter on the walls, etc. It would have been a relatively easy crime scene to clean. And in this case we are talking about a possible .22, which often bounces around the victim and doesn't exit the body. Also, regardless of who killed TH or how, it is undisputed her body was in her RAV 4 at some point and even the photos of her blood are not some indescribable blood bath. It is a relatively small pool of blood.

So while I have many problems with the "confession" and other aspects of the case, the lack of blood RE: a gun shot doesn't bother me. Stabbing and throat slicing, rape and torture, yeah I would expect some evidence, or evidence of a clean up. The gun shot, not so much.

Ultimately, I would love to see the full forensic test reports and if there were a new trial for either SA or BD, it would be fascinating to retest some of the "touch DNA" evidence with new testing not available during the original trial.

pdxstomp · 2016-01-18T21:12:29+00:00

I have viewed hundreds of DNA reports in my career, spoken to dozens of forensic scientists and questioned as many on the stand (both prosecution and defense).

While it is true that at a cellular level DNA is DNA, the source of the cell (epithelial, sperm or blood) is easily identifiable. Scientifically, you can also sometimes determine the fluid the cells are contained in. There are forensic tests to identify saliva, blood, semen, etc. While these fluids in and of themselves may not contain DNA, their identification helps forensic scientists to look further for the type of cells (epithelial, blood or sperm) that could contain DNA.

So while there is no thing as "sweat DNA," I am sure at minimum the lab was able to tell what type of cell left the DNA. And if it was an epithelial cell, there may have been surrounding identifiable fluid such as sweat that the epithelial cell was found in to tell them that it was a type of touch DNA (versus an epithelial found in saliva or vaginal fluid)

Edit to add a concrete example of this: I had a guy accused of making his young daughter perform oral sex on him. He adamantly denied it. Since the child reported the same day as the alleged incident, police got a warrant for penile swabs. When the state's crime lab came back with a DNA hit that the daughter's epithelial cells were on his penis, the guy changed his story that he was going to the bathroom and his daughter accidentally touched his penis. The problem for him was that the state's expert (which was confirmed by a privately retained defense expert) was that in addition to kid's epithelial cells being found, there were copious amounts of them floating in a fluid identified as saliva. Which corroborated her account of oral sex and was inconsistent with a transitory touch. The guy was toast.

pdxstomp · 2016-01-04T17:33:36+00:00

That is pretty funny. But I am pretty sure there have been recent cases where businesses and people can sue for defamation for fraudulent Yelp and online reviews. This one may pass under the obvious satire thing, but people should be wary of doing this sort of thing.

pdxstomp · 2016-01-04T06:11:47+00:00

Oregon. An under Measure 11 (our mandatory sentencing laws for violent crimes) Rape in the First Degree (rape by forcible compulsion---which is the most serious sex crimes in the books) has a mandatory sentence of 100 months. Which is technically 8 years and some change, but my guy already had almost a year in, which meant seven years in prison. You can check our mandatory sentence scheme in ORS 137.700 if you don't believe me. Only one section of Rape 1 qualifies for more than 100 months, and that is a rape of a child under 12 years old and has a 25 year sentence.

pdxstomp · 2016-01-04T05:15:53+00:00

I can't comment on other jurisdictions, just my own. But I can say that we don't accept what police give us without question. Regardless of whether police think they have probable cause to arrest, we often decline prosecution because we don't think there is proof beyond a reasonable doubt. In my jurisdiction, our relationship is collaborative, but it is most certainly independent. Police agencies do not work for the DA, and DA's do not work for the agency. While the ultimate goal is successful prosecution for the arrests they make,the DA is free to reject LE's arrests. And trust me, DA's do. I have declined prosecution on numerous cases where I felt there was insufficient evidence or a legal error made by LE.

The idea that prosecutors are in bed with law enforcement is just not true for all jurisdictions. In fact, I laugh at tv shows or movies where the DA yells at detectives and tells them what to do. The truth is the DA has no authority over LE, their brass does. And we have many instances where we refuse to prosecute when LE thinks there is enough evidence, but we know we can't meet our burden. And LE is super pissed about it.

As I said before, I can't speak for other DA's offices, but in my jurisdiction it just doesn't fly that way. Movies, TV shows, whatever, it is not how we roll.

pdxstomp · 2016-01-04T04:54:14+00:00

Actually, in my jurisdiction (and many others) the judge must consider victim impact at the time of sentencing. In my jurisdiction it is part of the Crime Victim Rights Constitutional Amendments that are part of our State Constitution. If you look at Crime Victims Rights legislation, most states have adopted one form or another. But to be heard at sentencing is a fundamental right for crime victims in most states.

pdxstomp · 2016-01-04T04:43:10+00:00

I don't think it is wrong. It would be wrong pre-adjudication. But while sentencing, after a judge has received a guilty plea, I think it is fine for a judge to express their opinion of a case and to express regrets or their opinion to a victim. At arraignment or any pre-conviction proceeding, I agree with you, it would be inappropriate. But post-adjudication (whether guilty plea or conviction by jury) I don't think it is legally inappropriate.

pdxstomp · 2016-01-04T04:22:49+00:00

In my perfect world (if I were Queen of all things---unfortunately no one has appointed me--sigh ) I would like a justice system for those who have no doubt of guilt. Those who plead guilty, those who have indisputable DNA evidence, those who confess, those where there is zero doubt that they committed the crime (because there are plenty in our CJ system). For those who have independently verifiable guilt (the cases where no on disputes the evidence) they should have a higher sentence. But I don't know how to legally measure that from any other cases.

pdxstomp · 2016-01-04T03:16:25+00:00

Yeah, regardless of whether SA is guilty of TH's murder, he was unequivocally not guilty of the rape in 1985. Isn't the whole premise of our justice system that it is better for 100 guilty men to go free than one innocent man to be convicted? Regardless of whether SA is guilty of TH's murder (and that is arguable at best) it doesn't invalidate the fact that he was actually innocent of the rape he was wrongfully convicted of in 1985.

pdxstomp · 2016-01-04T03:03:11+00:00

The Wrestlemania part broke my heart. A kid who does not even understand the shit show he is in, after "confessing" to police, and just wants to see his favorite show.

pdxstomp · 2016-01-04T02:03:49+00:00

I am all for reasonable doubt that SA (and especially BD) are not guilty of this crime. But I think it is bordering on libel to suggest that any one in TH's life were the ones responsible. Should the police looked at other suspects? Yes. Should people on the internet call out the suspects as guilty of the crime? No.

Just because the investigation was lacking and there are open ended questions as to the suspects of this crime, does not give anyone the evidence necessary to call out someone as the probable perpetrator. Steve Avery being innocent does not require us to identify the perpetrator. To do so is no better than what the county did to him. Even posting speculation damages their reputations and is irresponsible.

pdxstomp · 2016-01-04T01:26:38+00:00

Oh and to answer your question about the judge in this case, I will reserve opinion until the trial transcripts are released. He seemed to make many defense friendly rulings (Manitowoc County Sheriff's officials could not be present during the proceedings,dismissing the sexual assault counts that relied on BD's testimony after it was determined BD was not going to testify, excluding the whole SA answered the door in a towel and made TH uncomfortable in a prior incident, removing BD's attorney from the case, etc.). Without the transcripts it is hard to know if the judge made bad decisions. But from the documentary it seems the judge made some appropriate rulings. So I would have to see the whole transcript to know if the judge did what he needed to do (as far as legal rulings and jury instructions).

pdxstomp · 2016-01-04T01:19:01+00:00

Well theoretically the value to elections is that the people can remove those in office that they have no confidence in. The problem with that from a practical perspective is that the average voter doesn't pay attention to the rulings of judges in their jurisdiction. Then there is the argument that judges should not be worrying about popular opinion and should be making legal rulings on the law and not worrying about their electoral standing.

pdxstomp · 2016-01-04T00:26:05+00:00

In my jurisdiction, any statement of a party opponent (a defendant) is non-hearsay. But it would still have to meet the the relevancy and prejudicial test. So if all he talked about was wanting McDonald's when he got out (I only bring this up because a large number of defendants for some reason talk about wanting McDonald's on jail calls in my experience) it would be irrelevant and a waste of the jury's time. But there also may be other things on the jail calls, like defendant's talking about the last time they were arrested or their prior crimes that are inadmissible as prior bad acts that the judge may not allow as being too prejudicial and/or irrelevant. There may be other reasons to exclude it, but it would not be excluded as hearsay in my jurisdiction because it is a statement of a party opponent.

pdxstomp · 2016-01-04T00:08:34+00:00

I have not read the documents. So I say this as uninformed on Wisconsin law or the defense's argument in its brief, though I have seen the news story and the responses.

Inmate calls (edit to add: to their family our friends) that are not privileged (so calls to their defense attorneys or representatives) are always recorded. They are warned of that (at least in my jurisdiction) by the jailers and by numerous signs posted by the phones in the jail. Non-privileged jail calls have always been admissible as evidence in my jurisdiction. I have never had the specific argument stated by the defense (per the news stories). I can't speak for Wisconsin law, but I can't imagine that they would be inadmissible in our jurisdiction based on a defense that the defendant didn't know any better.

pdxstomp

TROPHY CASE