Kenneth Zercie — Direct/Cross/Redirect/Recross/Voir Dire
1,038 linesMR. HARPOOTLIAN: Your Honor, the defense would call Kenneth Zercie.
The witness, KENNETH ZERCIE, was first duly sworn and testified as follows:
COURT CLERK: If you'll have seat right up there on the witness stand. Have a seat and adjust that microphone to where you can speak into it well. And if you would, please state your name and spell your last name, please.
KENNETH ZERCIE: Yes, ma'am. Kenneth, last name Zercie, Z like zebra, e-r-c-i-e.
VOIR DIRE EXAMINATION
BY MR. HARPOOTLIAN:
MR. HARPOOTLIAN: Mr. Zercie.
KENNETH ZERCIE: Yes, sir.
MR. HARPOOTLIAN: Please tell the jury a little bit about yourself. Where do you live?
KENNETH ZERCIE: In Madison, Connecticut.
MR. HARPOOTLIAN: And what do you do in Madison, Connecticut?
KENNETH ZERCIE: Currently I live with my wife and my son, who lives up the street from us. I'm currently employed by the Henry C. Lee Institute of Forensic Science at the University of New Haven as the director of training. In addition to that, I'm also on staff at the university --
MR. HARPOOTLIAN: I'm sorry, I can't hear you very well. Maybe it's just me, but --
KENNETH ZERCIE: I'm also on staff at the university as an adjunct professor in various forensic science disciplines.
MR. HARPOOTLIAN: Okay. Let's talk a little bit about your background. You have been involved in law enforcement in your life?
KENNETH ZERCIE: Yes, sir, I have.
MR. HARPOOTLIAN: Tell the jury, please, where you began.
KENNETH ZERCIE: Back in 1974 before I became an officer with the New Haven Police Department, also in Connecticut I was promoted to the rank of detective, most of my career there. For my eleven year duration prior to retiring was with the Identifications Unit responsible for crime scene processing, evidence collection, photography, and preliminary examination of physical evidence that's found at a crime scene. After that, I retired based on a disability. I was injured and was almost immediately hired by the State of Connecticut at the Forensic Science Laboratory located in Meridan.
MR. HARPOOTLIAN: I'm sorry, and tell me what that was again. What was that position?
KENNETH ZERCIE: The second career, if you will, was at the Department of Public Safety, currently called the Division of Scientific Services Forensic Science Laboratory. Originally brought in as a latent fingerprint analyst, also doing footwear and tire track examination, as well as becoming the senior person as far as crime scene activity, that the laboratory responded to assist investigative agencies. Over a twenty-nine years career, I was promoted through the ranks and eventually retired as the director of the laboratory.
MR. HARPOOTLIAN: And that's director of the Division of Scientific Services for the State of Connecticut?
KENNETH ZERCIE: Yes, sir.
MR. HARPOOTLIAN: And in your duties there, you indicated you started off not as a supervisor or as a supervisor?
KENNETH ZERCIE: Not as a supervisor, as a criminalist with a specific function.
MR. HARPOOTLIAN: And a criminalist doing what kind of forensic work?
KENNETH ZERCIE: Starting primarily with fingerprints, latent fingerprint identification, and all of the processing techniques involved. Because I had also experience in footwear and tire track from the police department, I was given that task. And again, with a crime scene background, also ended up as one of the senior people going to the major crime scenes when the laboratory services would be requested, and eventually ended up supervising the photography section because of that type of background as well.
MR. HARPOOTLIAN: So, photography is important in processing a crime scene?
KENNETH ZERCIE: Absolutely.
MR. HARPOOTLIAN: Is that just for fingerprints or footprints or tire tracks or everything?
KENNETH ZERCIE: It involves the entire scene. It's the only way to bring the crime scene before a jury after the incident has occurred and so it can be reviewed or seen --
MR. HARPOOTLIAN: We'll talk about this a little bit later once I've had you qualified in these different areas. But after -- and how long were you at the Division of Scientific Services?
KENNETH ZERCIE: For twenty-nine years.
MR. HARPOOTLIAN: Now, also -- and you ultimately became the supervisor of that department for the State of Connecticut.
KENNETH ZERCIE: The director of the laboratory.
MR. HARPOOTLIAN: Okay. So, you were there from July of '84 to October of 2012.
KENNETH ZERCIE: Yes, sir.
MR. HARPOOTLIAN: And what did you do after 2012?
KENNETH ZERCIE: I've been an adjunct professor at four different universities off and on during that period, as well as approximately twenty to twenty-five years prior to retiring. I maintain that. I also have a private consulting business that I've kind of let go by the wayside a little.
MR. HARPOOTLIAN: So, what's the Henry C. Lee Institute of Forensic Science?
KENNETH ZERCIE: It's located at the University of New Haven; it's a separate entity than the University. And we're involved in doing scholarships, training and education, providing consultant work in cases, whether it's for the defense or the prosecution, but more to stay involved with the community and to provide modern technologies.
MR. HARPOOTLIAN: Okay, and you're the owner and principal analyst for Forensic Consultants of New England, LLC. What is that?
KENNETH ZERCIE: Again, it's a private business that I had on the side for doing consulting work.
MR. HARPOOTLIAN: Are you still doing that?
KENNETH ZERCIE: Technically this case falls under that today.
MR. HARPOOTLIAN: Okay. Now, what's your educational background?
KENNETH ZERCIE: As far as criminal justice and forensic science, I have an Associates Degree in criminal justice administration, a Bachelor of Science in what was called police science, basically a hybrid between administration and the forensic applications or sciences, and a Master's -- Master's of Science in forensic science.
MR. HARPOOTLIAN: That's all from the University of New Haven?
KENNETH ZERCIE: Yes, sir.
MR. HARPOOTLIAN: Okay. Now, you have a resume with several pages of different teaching things you've done. I'm not going to go into those in detail. Now, you have taught a number of courses. Is that right?
KENNETH ZERCIE: Yes, sir.
MR. HARPOOTLIAN: Everything from footprints, to blood stains, to tire tracks, to crime scene supervision, to -- I mean, it just goes on and on and on and on. Have you ever been qualified by any court to testify about fingerprint identification, that is in a federal or state court, in this country?
KENNETH ZERCIE: Yes, sir, I have.
MR. HARPOOTLIAN: And how many times?
KENNETH ZERCIE: Approximately 300.
MR. HARPOOTLIAN: 300 times, and can you remember all of the courts, or several of the courts?
KENNETH ZERCIE: I can remember the states that they were in, but the specific ones probably not.
MR. HARPOOTLIAN: Connecticut, I suppose?
KENNETH ZERCIE: Connecticut, Rhode Island, New York, Massachusetts, Florida.
MR. HARPOOTLIAN: That's enough. Okay, and how many times have you been qualified on footprints, or the more technical would be -- what would you call that?
KENNETH ZERCIE: Footwear, tire track examination, or imprint analysis.
MR. HARPOOTLIAN: Imprint analysis. How times --
KENNETH ZERCIE: Probably about 200.
MR. HARPOOTLIAN: 300 times you've been qualified by a state or federal court to be an expert on that topic?
KENNETH ZERCIE: About 200 as far as footwear and tire track.
MR. HARPOOTLIAN: Okay. Now, what about -- and maybe I'm getting this term wrong, crime scene management or crime scene analysis, you've taught courses on that, correct?
KENNETH ZERCIE: I've taught -- been an active participant at crime scenes, yes.
MR. HARPOOTLIAN: Okay. How many times have you been qualified, if you have, by a federal or state court to testify on that topic?
KENNETH ZERCIE: Qualified probably 400.
MR. HARPOOTLIAN: 400 times?
KENNETH ZERCIE: Yes, sir.
MR. HARPOOTLIAN: And you've testified?
KENNETH ZERCIE: Yes, sir.
MR. HARPOOTLIAN: And this is both state and federal courts?
KENNETH ZERCIE: Yes, sir.
MR. HARPOOTLIAN: Your Honor, I would move to qualify him as an expert in fingerprint analysis, footprint analysis, tire print analysis, and crime scene analysis management.
MR. HARPOOTLIAN: Sir, tell me what the term is, make sure I'm not screwing this up. Crime scene?
KENNETH ZERCIE: It would be crime scene examination as an overarching title.
MR. HARPOOTLIAN: There you go, crime scene whatever he just said.
JUDGE NEWMAN: What says the State?
MR. MEADORS: Your Honor, if he said it, I didn't hear it. How many times have you been qualified in tire impressions?
KENNETH ZERCIE: Approximately 200 --
MR. MEADORS: For tire impression. No --
KENNETH ZERCIE: For tire and footwear.
MR. MEADORS: No questions.
JUDGE NEWMAN: He is so qualified.
MR. HARPOOTLIAN: Thank you.
KENNETH ZERCIE: Thank you.
DIRECT EXAMINATION
BY MR. HARPOOTLIAN:
MR. HARPOOTLIAN: Now, let's talk about --
MR. HARPOOTLIAN: I have a PowerPoint here somewhere I believe that I sent y'all --
MR. MEADORS: Last night.
MR. HARPOOTLIAN: Can we call that, please?
MR. HARPOOTLIAN: Have you prepared a PowerPoint for your testimony here today, sir? Do you have a PowerPoint?
KENNETH ZERCIE: Yes, sir.
MR. HARPOOTLIAN: Okay.
MR. HARPOOTLIAN: Can we put that on the screen, please?
JUDGE NEWMAN: Can you raise your voice, sir?
KENNETH ZERCIE: I can, sir.
MR. HARPOOTLIAN: So, is this the PowerPoint?
KENNETH ZERCIE: It's the first slide, yes.
MR. HARPOOTLIAN: Okay, and what is this showing us?
KENNETH ZERCIE: Basically it was put together just to give the Court a demonstration of what can be done with physical evidence at a crime scene and some of the base requirements that are involved.
MR. HARPOOTLIAN: Okay, and it says: Recording of imprint impression evidence, seizure of items, photography, lifting methods and enhancement. And that's sort of a guide about what we're about to see, correct?
KENNETH ZERCIE: Yes. It's also an outline of what could be done with physical evidence at a crime scene and then later on at the laboratory.
MR. HARPOOTLIAN: Okay.
MR. HARPOOTLIAN: Next slide, please.
MR. HARPOOTLIAN: Now, it says: Photographic evidence, enhanced photographs of the question imprint, impression for use, and intercomparison examination of the known footwear outsoles or transparency with known footwear outsole. Explain that. What does that mean?
KENNETH ZERCIE: With all types of evidence, especially at a crime scene as I mentioned before, photography is one of the keys documenting the evidence in place. In many cases you can't take the evidence back to a laboratory, so you have to rely on the photographic images. If they're taken with quality equipment, quality cameras, and in a proper format, a lot of work can be done with it. They can be associated to a known or a question. Photography is still the key for bringing the scene either into the laboratory or into the courtroom.
MR. HARPOOTLIAN: And are there certain -- and we're going to see this in just a minute -- certain requirements, I guess is the right word to use, on how those photographs are taken depending on what you want to use it for?
KENNETH ZERCIE: Correct. There are different types of photography. Just as we have portrait photography here, the media that's present, all of that is a form of documentation.
MR. HARPOOTLIAN: Okay. We'll talk about that in just a minute. And, by the way, intercomparison examination with known footwear outsoles, or transparency to known footwear outsoles, what does that mean?
KENNETH ZERCIE: There's a difference between taking a picture of something and then taking a photograph for examination quality where you do need the detail to find the individual characteristics that might be present for a comparison. And, again, it would be a known, whatever the known object is, whether it's a shoe, a fingerprint. It could be a tool mark. It could be any type of pattern, and the sample that's found at the scene. Okay? Or against the instrument that may have caused that mark. The more detail with the images, the better the quality of the examination and the more reliable the showing of the detail portion. So, the side by side comparison is your known and your question.
MR. HARPOOTLIAN: But most of these are basically eyeball examinations even under a microscope, or looking at it just with your naked eye, correct?
KENNETH ZERCIE: All of the above.
MR. HARPOOTLIAN: Right.
MR. HARPOOTLIAN: Next, please.
MR. HARPOOTLIAN: Photographic techniques: FUSS. Tell us what that means.
KENNETH ZERCIE: It's just an acronym to help the photographer remember to do certain things, especially when it comes to analytical photographs. You want to take whatever the image on a picture, or inside of the view finder of the camera such as the gentleman has, and fill that entire image that captures the picture. You're maximizing the amount of detail that can be retained either in digital format or a film format. The opposite would be taking a medium closeup where you show an overview of multiple items, or something as a wide angle shot of the entire courtroom. So, there's a whole series of photographs that go with this method. Secondly, using a scale. If it's going to be used for analysis, you want a known reference in there so you can recreate the image later in a dark room or on a computer so that the image is now on life-sized proportion. So, again, if I have an article of footwear, I can place that or take a sample from it. That would be one to one, or life size.
I can recreate the image. You either take it from the crime scene or the standard photograph using that scale to that same reference. I can also recreate that one to one so that we get a size proportion as part of the analysis. It would also be an illumination. If the sizes were different, it couldn't be from the same source. Side lighting is a lighting technique that's used. When the photograph is taken, if it's an object of interest and if you're using it for analysis, you may want a sidelight coming at different angles to show the different detail that might be there, especially in a three dimensional picture. Two dimensional, it helps, but it's not as critical. And lastly, several shots. You want to take multiple exposures of each image. Digital photography today, it's a lot easier because the image pops up so you can see that you've captured it. In past technologies, you have a photograph on film and you couldn't see the result until you process the film, which is usually long after you've left the scene or the incident. So, there's several advantages to the newer technologies.
MR. HARPOOTLIAN: So, this says: Special note, film plane must be level parallel to the imprint impression.
KENNETH ZERCIE: Yes, sir.
MR. HARPOOTLIAN: What does that mean?
KENNETH ZERCIE: The film plane is actually the back of the camera. It's where the image is actually captured. That film plane, if my object is here, would have to be here. I want those two images parallel. It avoids distortion and vignetting, okay, the way the angles may come up. If you think of a tall building, all right, and you look up at it, the building tends to come together. The same thing happens with angular photography. Okay. There's distortion that occurs, and even in close-up images, all right, by using the scales and making sure that your film plane is parallel to the object that you're taking, all right, you try to avoid that distortion as one of the considerations. And again, it will give you a more accurate rendering.
MR. HARPOOTLIAN: So when you take this photograph, you can compare it to a footprint, a fingerprint, or tire track, you want the photograph to be -- the camera's lens to be parallel to that so you're looking straight down at it.
KENNETH ZERCIE: Yes, sir.
MR. HARPOOTLIAN: That's one of the shots you should get, but that's the most important shot.
KENNETH ZERCIE: For analytical and quality imaging, yes.
MR. HARPOOTLIAN: Right. I mean, you're not taking it to send home to Mom. It's for analytical purposes, correct?
KENNETH ZERCIE: Yes, sir.
MR. HARPOOTLIAN: And then you have other shots from the side or whatever, and that helps you, if you see a detail, get more of a perspective on it, if you will.
KENNETH ZERCIE: It could, but it also shows the orientation to the surrounding area. And, again, that three shot sequence -- close-up, medium close-up, and then an overview -- you're telling a story through the pictures.
MR. HARPOOTLIAN: So, let me stop and sort of go off script for a second. You started with the -- what police department and when?
KENNETH ZERCIE: City of New Haven.
MR. HARPOOTLIAN: And what was your role or job when you started?
KENNETH ZERCIE: Initially as a patrolman doing patrol activities. Spent a year on the corporation counsel doing civil investigation. Unfortunately I got hurt. After that --
MR. HARPOOTLIAN: How did you get hurt?
KENNETH ZERCIE: On a burglar -- on a premises call, I fell through a drywall and ended up destroying my left knee.
MR. HARPOOTLIAN: Okay. So, you had to leave the police department after that.
KENNETH ZERCIE: No. Well, it was about nine years later.
MR. HARPOOTLIAN: Okay. So, did you continue to be a patrolman after you hurt --
KENNETH ZERCIE: No. I was promoted and went to the Identification Unit after leaving the corporation counsel and was performing Crime Scene Unit activities, basic investigation again.
MR. HARPOOTLIAN: So when you first started, I mean, you were a detective at that point?
KENNETH ZERCIE: When I started as a patrol officer, I was promoted to detective.
MR. HARPOOTLIAN: Okay, and when you're doing crime -- responding to murder scenes or housebreakings or whatever --
KENNETH ZERCIE: Yes, sir.
MR. HARPOOTLIAN: -- you were a detective at that point, at some point?
KENNETH ZERCIE: Plain clothes officer or detective, yes.
MR. HARPOOTLIAN: So, when you responded to the scene, did you take a camera?
KENNETH ZERCIE: Yes, sir, always.
MR. HARPOOTLIAN: Okay, and did you follow FUSS?
KENNETH ZERCIE: Yes, sir.
MR. HARPOOTLIAN: And so, I mean, so this was required by procedure and policy at your department, correct?
KENNETH ZERCIE: Yes, and most of the teaching with specialized schools that I had been to.
MR. HARPOOTLIAN: Okay, and you started that in the 80s?
KENNETH ZERCIE: In the 70s.
MR. HARPOOTLIAN: 70s, I'm sorry. So, this is what you've done while you were a police officer for the span of decades, correct?
KENNETH ZERCIE: Yes, sir --
MR. HARPOOTLIAN: Starting in the 70s.
KENNETH ZERCIE: Yes, sir.
MR. HARPOOTLIAN: So, this isn't some newfound procedure. This is something you've done through four decades.
KENNETH ZERCIE: Correct.
MR. HARPOOTLIAN: Next, please.
MR. HARPOOTLIAN: So, this is use of a tripod: When photographing evidence with detail, a tripod must be used.
KENNETH ZERCIE: It's recommended. It makes it more stable. You don't have to worry about even the pulse in your fingers -- and depending on the length of the exposure, that's necessary - - causing any vibration or defocusing that might occur.
MR. HARPOOTLIAN: And this is a process and procedure, and this shows a guy shooting out in front, not straight down. That would be incorrect?
KENNETH ZERCIE: For a documentation or an analytical photograph, yes.
MR. HARPOOTLIAN: Okay.
KENNETH ZERCIE: What happens is this camera is at an angle, just doing a flat object here. And, again, the distortion effects that I explained earlier.
MR. HARPOOTLIAN: Okay, and this is also a procedure that you followed for decades.
KENNETH ZERCIE: Yes, sir.
MR. HARPOOTLIAN: And it's a procedure you taught when you taught it to police officers?
KENNETH ZERCIE: Yes, sir.
MR. HARPOOTLIAN: And is it a procedure you heard about when you attended classes?
KENNETH ZERCIE: Yes, sir.
MR. HARPOOTLIAN: Next, please.
MR. HARPOOTLIAN: What does this depict?
KENNETH ZERCIE: Here we have two examples of the position of a camera, like the line drawings on a tripod showing the proper orientation to an object being photographed. All right. The film plane, even if the item is on an angle, the camera and the lens would also be on that same angle, all right, again to avoid distortion.
MR. HARPOOTLIAN: So, you ought to have a tripod, and the lens ought to be parallel to whatever it's shooting at.
KENNETH ZERCIE: It makes it easier to have a tripod, yes.
MR. HARPOOTLIAN: Right.
MR. HARPOOTLIAN: Next.
MR. HARPOOTLIAN: Is this is a demonstration of the same thing?
KENNETH ZERCIE: It's a demonstration showing what happens when you don't do that. If you look at the object on the bottom of the black dots, you'll notice that they're distorted, all right? They're not in proper proportion and there's some angularity to them.
MR. HARPOOTLIAN: Okay.
MR. HARPOOTLIAN: Next.
MR. HARPOOTLIAN: Okay. Now, tell us what these photographs are of -- but where do -- where did these come from?
KENNETH ZERCIE: These are images that I took at a homicide scene in the State of New York. All right. Essentially we were asked to come and assist, mutual aid, similar to the different agencies here helping one another. By going to New York, we had certain things that maybe their laboratory or their Crime Scene Unit didn't have access to.
MR. HARPOOTLIAN: So, what -- tell me what the difference is --
KENNETH ZERCIE: Well, the two photographs show a kitchen area. On the right-hand side you have what looks like a kitchen and a sink, and if you look directly down on the floor, it's kind of a reddish stain that you can barely see. By using various chemical processing methods, as well as photo documentation, all right, the picture on the left, I was able to bring out a lot more fingerprints that were cold, or latent. They were kind of invisible, just in very light blood residue. And the screening tests that we used to try to develop those reacts with the proteins that are in blood and causes a color change so that now they're more visible even if you couldn't see that area in the beginning. Similar to a latent print, it's invisible when you touch a surface.
MR. HARPOOTLIAN: What's a latent print?
KENNETH ZERCIE: It could be a footprint, it could be a fingerprint, but it's whatever residue that's there that's left on a surface that you can't normally see without some type of enhancement.
MR. HARPOOTLIAN: And so you put a -- you participated in putting the chemical on the floor here?
KENNETH ZERCIE: I put the chemical on the floor.
MR. HARPOOTLIAN: And what was it?
KENNETH ZERCIE: It was Orthotolidine.
MR. HARPOOTLIAN: Say that again.
KENNETH ZERCIE: Orthotolidine.
MR. HARPOOTLIAN: What year was this approximately?
KENNETH ZERCIE: In the 80s.
MR. HARPOOTLIAN: In the 80s. So, this is not some newfound chemical, it's been around for forty years?
KENNETH ZERCIE: Yes, sir.
MR. HARPOOTLIAN: Okay, and this is what y'all were doing in the 80s.
KENNETH ZERCIE: Yes, sir.
MR. HARPOOTLIAN: Okay, and so did you just spray it on the floor? How do you apply it to the floor?
KENNETH ZERCIE: It's sprayed with an aerosol very similar to misting from a deodorant can or hairspray.
MR. HARPOOTLIAN: Okay, and how long does it take to raise these previously invisible footprints?
KENNETH ZERCIE: Almost instantaneous.
MR. HARPOOTLIAN: And so once those are raised, what's the next step?
KENNETH ZERCIE: Can you go to the next slide?
MR. HARPOOTLIAN: Next slide.
KENNETH ZERCIE: Basically setting up the tripod and the camera, right, to do photo documentation. The other option is literally to cut the sections out of the floor or counter or whatever the imprint or impressions are on and to take that with you.
MR. HARPOOTLIAN: Did you just take photographs or did you cut up the floor?
KENNETH ZERCIE: We relied on photographs in this case.
MR. HARPOOTLIAN: And this is a tripod we see, so you're shooting straight down on the edge.
KENNETH ZERCIE: Yes, sir.
MR. HARPOOTLIAN: Okay.
MR. HARPOOTLIAN: Next.
MR. HARPOOTLIAN: What is that?
KENNETH ZERCIE: It's an example of what the footprint actually looked like after enhancement. Any of the bluish/greenish areas were not visible in the beginning.
MR. HARPOOTLIAN: So where we see blue or green here, you couldn't see that on the print on the floor, but once you did this, what had previously been invisible was now visible.
KENNETH ZERCIE: Correct.
MR. HARPOOTLIAN: Okay.
KENNETH ZERCIE: Photographs would have been taken before the spraying, and then after.
MR. HARPOOTLIAN: Next.
MR. HARPOOTLIAN: What is this?
KENNETH ZERCIE: Again, it's an example of a partial footprint or two. In this case it's actually on plywood, and it appears to be in a blood-like substance. The scale is there just for size and measure.
MR. HARPOOTLIAN: Right. The scale is important. Right.
MR. HARPOOTLIAN: Next.
MR. HARPOOTLIAN: What is that?
KENNETH ZERCIE: This is after enhancement after applying the same chemical.
MR. HARPOOTLIAN: Okay. Go back.
MR. HARPOOTLIAN: So, again, you applied that same -- what was the name of that chemical?
KENNETH ZERCIE: Orthotolidine.
MR. HARPOOTLIAN: We've heard some testimony about something called LCV. Is that the same thing or similar?
KENNETH ZERCIE: It's similar. It's a protein dye stain, and there's several others.
MR. HARPOOTLIAN: And would it raise -- if you sprayed it like this, would it raise the --
KENNETH ZERCIE: It could.
MR. HARPOOTLIAN: Would it do the same thing?
KENNETH ZERCIE: Quite possibly. Each one of the agents has a sensitivity level; some are more sensitive than others.
MR. HARPOOTLIAN: And you don't use LCV.
KENNETH ZERCIE: We use LCV. We've used Amindo Black. We've used Fenethylline. And so there's any number of options, and a lot of it has to do with the color. You might have some different than the background color so you have contrast. And that's the other part about photography: you need contrast to see something.
MR. HARPOOTLIAN: So, like, LCV, I think, turns things --
KENNETH ZERCIE: Purplish.
MR. HARPOOTLIAN: Purple. So, if you have a dark background you would not want to use LCV.
KENNETH ZERCIE: Most probably, yes.
MR. HARPOOTLIAN: Next.
UNIDENTIFIED SPEAKER: That's it, Counsel.
MR. HARPOOTLIAN: Is that it?
UNIDENTIFIED SPEAKER: That's the last item.
MR. HARPOOTLIAN: Your Honor, it's 4 minutes til 1:00. This might be a good time to break.
JUDGE NEWMAN: All right, ladies and gentlemen, we will recess until 2:15. Please do not discuss the case.
(The jury left the courtroom.)
JUDGE NEWMAN: All right, we're in recess until 2:15.
MR. WATERS: Your Honor.
JUDGE NEWMAN: Yes, sir.
MR. WATERS: Very quickly, I was going to hand up those three cases I mentioned this morning.
JUDGE NEWMAN: Okay.
(A lunch break was taken.)
JUDGE NEWMAN: You may bring the jury.
COURT BAILIFF: The jury is present, sir.
JUDGE NEWMAN: Thank you. You may proceed.
MR. HARPOOTLIAN: Please the Court, Your Honor?
CONTINUED DIRECT EXAMINATION
BY MR. HARPOOTLIAN:
MR. HARPOOTLIAN: So, Mr. Zercie, before we broke for lunch, we were talking about how one would process so it would show a floor you've sprayed some chemical -- I can't remember what the name of it is -- which would bring out previously invisible imprints of feet. It would do the same thing for fingerprints?
KENNETH ZERCIE: Yes, sir, or it would enhance what you could see already.
MR. HARPOOTLIAN: I'm sorry?
KENNETH ZERCIE: It would enhance what you could see already.
MR. HARPOOTLIAN: All right, but it would bring -- also bring out things that you can't see.
KENNETH ZERCIE: Yes.
MR. HARPOOTLIAN: Okay. Let's talk a little about crime scene processing.
MR. HARPOOTLIAN: Let me -- if we could bring a video up, please? And y'all need to cover your screens, please.
(Break in proceedings.)
MR. HARPOOTLIAN: I think I want to do State's Number 1. Okay. All right. Can you play that for us, please?
(The video was played. Audio not transcribed.)
MR. HARPOOTLIAN: Stop right there. Stop, please.
MR. HARPOOTLIAN: Okay. So, you recognize that as Paul Murdaugh's body covered by a sheet?
KENNETH ZERCIE: Yes, sir.
MR. HARPOOTLIAN: Okay. We just saw some officers apparently taking that sheet off. This officer in particular stepped inside the feed room --
MR. MEADORS: Objection.
MR. HARPOOTLIAN: Has that officer stepped inside the feed room?
KENNETH ZERCIE: The one on the extreme right of the image, yes.
MR. HARPOOTLIAN: Okay, and did you notice any protective covering on their feet?
KENNETH ZERCIE: No, sir.
MR. HARPOOTLIAN: And I call them booties. What do you call them?
KENNETH ZERCIE: Shoe cots or booties.
MR. HARPOOTLIAN: What?
KENNETH ZERCIE: Shoes cots or booties.
MR. HARPOOTLIAN: Or booties. Okay, and is that -- what, if anything, is -- under the procedures you understand is the purpose of those?
KENNETH ZERCIE: It's to keep your shoes from contaminating the scene with any residue that may be on them. And secondly, also not to allow the imprint pattern from your footwear to contaminate the scene.
MR. HARPOOTLIAN: Okay. Is that procedure that you teach? Is that a procedure that's accepted? Is that -- what is that?
KENNETH ZERCIE: That's standard operating procedure.
MR. HARPOOTLIAN: It's standing operating procedure around the world.
KENNETH ZERCIE: It should be, yes.
MR. HARPOOTLIAN: Okay. Now --
MR. HARPOOTLIAN: Go forward with it, please.
(The video was played.)
MR. HARPOOTLIAN: Stop that one second.
MR. HARPOOTLIAN: You could see that officer has two feet inside the feed room?
KENNETH ZERCIE: Yes, sir.
MR. HARPOOTLIAN: No booties?
KENNETH ZERCIE: Correct.
MR. HARPOOTLIAN: Okay.
MR. HARPOOTLIAN: Keep going.
(The video was played.)
MR. HARPOOTLIAN: Okay. That's enough of that one. Let's go to McDow's body cam, State's 6. And that was, for the record, Green's body cam, State's 1.
(The video was played. Audio not transcribed.)
MR. HARPOOTLIAN: Stop that for one second.
MR. HARPOOTLIAN: Is that the same shot but from -- a shot from inside the feed room?
KENNETH ZERCIE: It appears to be, yes.
MR. HARPOOTLIAN: Thank you.
MR. HARPOOTLIAN: You can turn it back off.
MR. HARPOOTLIAN: Okay. So, let me ask you a couple questions about what we've just seen.
KENNETH ZERCIE: Yes, sir.
MR. HARPOOTLIAN: You indicated just a moment ago that they should have had booties on, and you've explained why.
KENNETH ZERCIE: That is a basic precaution so that they don't contaminate the scene, and also the scene doesn't contaminate them.
MR. HARPOOTLIAN: Let's talk about that sheet that was on Paul's body.
KENNETH ZERCIE: Yes, sir.
MR. HARPOOTLIAN: Tell us, first, would you use a sheet to cover a body?
KENNETH ZERCIE: Depends on the circumstance.
MR. HARPOOTLIAN: Under these circumstances.
KENNETH ZERCIE: Under these and that the victim is not in a public access area?
MR. HARPOOTLIAN: Right.
KENNETH ZERCIE: Possibly, if there were other signs of contamination. In the last video you could see raindrops coming down, but instead of a porous sheet, I would probably use a tarp of some sort.
MR. HARPOOTLIAN: Something that's not absorbent?
KENNETH ZERCIE: Correct, and as a last resort.
MR. HARPOOTLIAN: And why would you not want to use something that was absorbent?
KENNETH ZERCIE: Well, one, because it was porous. It absorbs both -- the water hitting on the sheet would go in the matrix and material and anything that's under it, or in this case on Paul's body, could also be absorbed up into the sheet, whether it's blood or biological fluids that may be present.
MR. HARPOOTLIAN: And if you would have used a sheet or any other material, would you -- once you're done using it, would you discard it, or would you save it and have it analyzed, and why?
KENNETH ZERCIE: It should be preserved and it should go with the remains, presumably to the medical examiner's office, and then returned over to whoever the investigating agencies are, I mean, for further analysis.
MR. HARPOOTLIAN: And what, I mean, would you be looking for?
KENNETH ZERCIE: Because it was physical contact between the sheet and the victim's body, any trace evidence such as hairs, fibers, or other materials that may be lose could be picked up, especially when it becomes moist. All right. It now becomes like a sponge and actually picks things up and takes it away. You don't know it's not there.
MR. HARPOOTLIAN: So, let me understand this. If somebody had walked by -- let's say the assailant had walked by that body, and we're all losing hair all the time -- some of us more than others -- but if you run your hand through your hair, you'll lose hairs, right?
KENNETH ZERCIE: Yes, sir.
MR. HARPOOTLIAN: And if the assailant walked by there, it looks like -- I mean, the assailant, I think everyone agrees, was relatively close on that second shot anyway.
MR. MEADORS: Objection.
JUDGE NEWMAN: The objection is sustained.
MR. HARPOOTLIAN: In a hypothetical, if the assailant had -- was close to somebody and walked by, is there a possibility, probability that hair or other trace evidence from the assailant would end up under that sheet in between the sheet and Paul's body?
KENNETH ZERCIE: It's possible, yes.
MR. HARPOOTLIAN: Okay. Now with a possibility, is that the reason you say save the sheet and have it processed?
KENNETH ZERCIE: Yes, sir.
MR. HARPOOTLIAN: Okay. Let's also talk about -- and to your -- well, first of all, you've read all the records in this case. You've looked at all the evidence that was taken from the scene. Did you find any record that that sheet was saved?
KENNETH ZERCIE: I saw no indication of it, no, sir.
MR. HARPOOTLIAN: Okay. Or processed.
KENNETH ZERCIE: Correct.
MR. HARPOOTLIAN: Paul's clothes, what should be done with those?
KENNETH ZERCIE: Again, once they're removed from the victim, whether it's done at the medical examiner's office or in another location, again, they should send it to the laboratory for analysis. And, again, would be trace transfer evidence, hairs, fibers, or other materials, as well as any of the wound patterns that would appear on the outer garments themselves. Looking for things like gunshot residue, pattern analysis. It would be very helpful.
MR. HARPOOTLIAN: Do you see any evidence in any report of those clothes being preserved, let alone examined?
KENNETH ZERCIE: With the documents I've been provided, I have not seen any.
MR. HARPOOTLIAN: Okay. Now, you just recommended doing some things in your thirty years of doing crime scene -- twenty?
KENNETH ZERCIE: Twenty.
MR. HARPOOTLIAN: I'm sorry, I don't want to get it -- twenty years of doing crime scene work, going to crime scenes and preserving evidence, are these the kind of things -- are these things you've done on your crime scenes in the past?
KENNETH ZERCIE: Depends on what stage the crime scene is being examined. If it's at the very end and you finished all of your documentation, and you finished your evidence identification, you finished all of your photography, your sketch maps, as long as there's not exigency, an emergency that's present -- and i.e. that would be life saving -- if it's been determined or the presumption of death, in this case for both victims, you can slow the investigation down. All right. There's no longer an emergency to rush through everything, and you take everything through a very systematic approach and try to be as detailed as possible.
MR. HARPOOTLIAN: Have you done that in the past?
KENNETH ZERCIE: Yes, sir.
MR. HARPOOTLIAN: And if this had been your crime scene, would you have saved that sheet and saved his clothes?
KENNETH ZERCIE: Definitely.
MR. HARPOOTLIAN: I'm sorry?
KENNETH ZERCIE: Definitely.
MR. HARPOOTLIAN: Okay. Now, let talk about Maggie, and I'm just going to cut to the chase on this. Maggie had the same kind of sheet over her. Would you have done the same thing?
KENNETH ZERCIE: Yes, sir.
MR. HARPOOTLIAN: You would have saved the sheet, sent it for analysis, saved her clothes, sent it for analysis?
KENNETH ZERCIE: Bagging and tagging each thing separately so there's no cross-contamination between items.
MR. HARPOOTLIAN: Each item that's bagged individually so there's no cross-contamination.
KENNETH ZERCIE: Correct.
MR. HARPOOTLIAN: Was that done in her case?
KENNETH ZERCIE: Not to the best of my knowledge.
MR. HARPOOTLIAN: Okay. Now, let's talk a little bit about -- let me see. I'm going to try to expedite this a little bit. Okay.
MR. HARPOOTLIAN: Let's go to the ELMO, please. What is the number on that?
UNIDENTIFIED SPEAKER: State's 39, Counsel.
MR. HARPOOTLIAN: This is State's 39 for the record.
MR. HARPOOTLIAN: Now, you understand -- what do you understand this to be?
KENNETH ZERCIE: It's a photograph, and it's from a report from Agent Worley from SLED.
MR. HARPOOTLIAN: And this is of the feed room floor?
KENNETH ZERCIE: Yes, sir, it is.
MR. HARPOOTLIAN: Now, earlier we saw you spray some things in a murder scene in New York. We're going to get to that in just a second. Have you -- I think Agent Worley identified or testified that in her opinion, based on her experience in footwear, that Paul's shoes were in there somewhere. Is that correct?
KENNETH ZERCIE: A pattern similar to the shoes that Paul was wearing was present, yes.
MR. HARPOOTLIAN: Okay. Now, did she also indicate that she also found patterns consistent with one of the law enforcement officer's shoes?
KENNETH ZERCIE: Yes, sir, she did.
MR. HARPOOTLIAN: That may very well have been the guy we saw step into the feed room, right?
KENNETH ZERCIE: Possible.
MR. HARPOOTLIAN: Okay. Now, if you had come on this crime scene and saw this, would you have felt compelled to do more that we've heard from Agent Worley?
KENNETH ZERCIE: For several reasons, yes.
MR. HARPOOTLIAN: Okay. First of all, what would you have done, and why would you have done it?
KENNETH ZERCIE: I wouldn't have walked into the room. You stand back, you make your observations, and you determine a course of action, and everything that's done in the sequence of a crime scene. Again, the first part is viewing it, using a visual examination. Once you've identified areas of interest, then you determine the methodology that you're going to use to either collect, seize, document the type of evidence that would be there.
MR. HARPOOTLIAN: So, what you would have done, you've looked in the door and you see this. What do you do?
KENNETH ZERCIE: I would have started from the doorway and walked towards the back of the room, in that it's a small, enclosed area. So, you're working front to back.
MR. HARPOOTLIAN: When you say working front to back, what do you mean work? What would you do right inside the door or right outside the door?
KENNETH ZERCIE: You would start documenting close-ups and the --
MR. HARPOOTLIAN: Photograph?
KENNETH ZERCIE: Yes, sir. That there's an imprint just to the right of the door, that would be my first area to do detailed photography and imaging and fully do comparison.
MR. HARPOOTLIAN: And as you work your way back, are you careful not to step anywhere? You're wearing booties. What are you doing?
KENNETH ZERCIE: You're wearing the shot cots or booties. In addition to that, we usually build a bridge. Basically take two, two by four, lay them in an area where there were known prints, put a piece of plywood, and actually stand on that, that you're not standing on the surface that the imprints are on. There are commercial products that are available like Tupperware boxes that you can literally stand on and do the same thing. So, it preserves and protects the area that you're interested in doing the detailed work, that you may be able to get more evidentiary information from.
MR. HARPOOTLIAN: And once you've done those photographs all of the way back, what do you do next?
KENNETH ZERCIE: In this case, once the initial photographs were taken, determined if chemical processing is necessary, or could I seize the item. In this case, it appears that these imprints are on a concrete base. It's a little difficult to take the entire concrete foundation and remove it but it has been done before. In this case, again, now we work from the back towards the front using some type of enhancement reagent to try to increase the amount of detail, and --
MR. HARPOOTLIAN: And that agent is what you sprayed in New York on the floor that helps with --
KENNETH ZERCIE: That would be one of them, yes.
MR. HARPOOTLIAN: -- images that aren't visible to the naked eye?
KENNETH ZERCIE: Even when some of the image is visible, it can give you additional detail peripherally or other area. It's just trace amounts.
MR. HARPOOTLIAN: Okay, and you've worked your way to the front taking pictures as you spray?
KENNETH ZERCIE: Yes, sir.
MR. HARPOOTLIAN: Okay. Now, once you've finished that, are you done with the floor?
KENNETH ZERCIE: No, sir.
MR. HARPOOTLIAN: What now? What do you do now?
KENNETH ZERCIE: You want to take overviews to show the work that you have done and show any modifications that you made to the scene and, again, make the determination: can I take the area that print is on with me? If it was a tile floor, you could pull the tiles up, but again, because it's on concrete, you would have to rely on the documentation.
MR. HARPOOTLIAN: I mean, they're still 90 degree, straight-down shots?
KENNETH ZERCIE: That would be the analysis part. You could still take general photographs on an angle showing the relationship.
MR. HARPOOTLIAN: But as you work your way up and work your way back, those would be vertical. I mean --
KENNETH ZERCIE: Yes, sir, that would be --
MR. HARPOOTLIAN: Okay, and then you're taking general photos from different angles.
KENNETH ZERCIE: Yes, sir.
MR. HARPOOTLIAN: And then what?
KENNETH ZERCIE: With digital we would make sure that the photos came out, that you had an image captured, and that it was sufficient for whose ever needs.
MR. HARPOOTLIAN: Now, let's --
KENNETH ZERCIE: You would also take a sample of the blood from those areas for a later typing or DNA analysis should it be necessary.
MR. HARPOOTLIAN: Did you find any evidence that they took a sample of this blood and analyzed it?
KENNETH ZERCIE: No, sir.
MR. HARPOOTLIAN: So, I mean, we surmise it's Paul's blood, but could it be somebody else's blood there, too?
KENNETH ZERCIE: Possible.
MR. HARPOOTLIAN: And the only way you could rule that out is take samples?
KENNETH ZERCIE: Is to take a sample, do an analysis, and try to identify the owner.
MR. HARPOOTLIAN: And that was never done.
KENNETH ZERCIE: To the best of my knowledge, no, sir.
MR. HARPOOTLIAN: Okay. So, then we have a number of surfaces.
MR. HARPOOTLIAN: Let me have them put up 26, State's 26.
(Break in proceedings.)
MR. HARPOOTLIAN: Okay. So -- and just to cut to the chase, this is the door to the --
MR. HARPOOTLIAN: There you go.
MR. HARPOOTLIAN: That's the door to the feed room?
KENNETH ZERCIE: Yes, sir. The doorframe on the right, the door on the left.
MR. HARPOOTLIAN: Okay. Did you see any evidence that they dusted -- not dusted. That's old timey language, that they processed that door or any other surface in the feed room for fingerprints?
KENNETH ZERCIE: Not to the best of my knowledge.
MR. HARPOOTLIAN: Now, tell the jury, please, in a summary fashion what you would have done -- well, first of all, do you have to see a fingerprint before you lift it or whatever you call that?
KENNETH ZERCIE: No, sir.
MR. HARPOOTLIAN: So, how do you determine whether or not there are fingerprints you can see? What do you do?
KENNETH ZERCIE: The base processing methods, again depending on what technologies the agency has, the simplest and the oldest is dusting and contrasting with fingerprint powder and brush by just applying it to the surface and dusting it through. If a finger or a palm or a foot or a toe has come in contact with those areas, the secretions from the ridge detail, all right, leaves a pattern behind. Those latent fingerprints become patent, or visible. They could be lifted; they could be photographed. They also help tell you what was touched and how things were handled, so it would help in reconstruction as well.
MR. HARPOOTLIAN: That's the oldest technology there is, though, right? The throwing dust down, fingerprint dust?
KENNETH ZERCIE: At a crime scene, yeah.
MR. HARPOOTLIAN: Okay. Not talking about going into the lab and using superglue or whatever. It's at the crime scene.
KENNETH ZERCIE: Yes, sir.
MR. HARPOOTLIAN: What is the more modern? Do you use lights, or do you use chemicals? What do you do at the scene?
KENNETH ZERCIE: The first method would be to use an alternate light source.
MR. HARPOOTLIAN: What does that mean, alternate light source?
KENNETH ZERCIE: It could be anything from a flashlight. You hold it at oblique angles and see if you can find any smudges or smears. More sophisticated, portable laser units. All right. Laser is an acronym for a light source that produces a wave length light in a very specific number. The more common today are called the alternate light sources. These are various colored lights, and usually they're light-emitting diodes, or LDs, and different wave lengths of light. So, in concert with a pair of glasses that are filtered, you can get a shift and you may be able to pick up fluorescence or luminescence. The problems is that our secretions, the oils, the fats and the salts, don't reflect. They don't give off light, so you would need to process those, if you discovered one, with some type of chemical stain that would act as a florescent, and essentially it would be similar to my watch that when it's dark, it glows.
MR. HARPOOTLIAN: So, are these new technologies, or is this something, space age stuff, or has it been around for awhile?
KENNETH ZERCIE: The light source technology has become simpler and simpler. It's now battery powered. Literally it's a very simplified flashlight. They were also very sophisticated once. The technology has been around for about twenty- five, almost thirty years.
MR. HARPOOTLIAN: Okay, and not uncommon to be available to law enforcement?
KENNETH ZERCIE: No, sir. I would expect every laboratory to have some type of alternate light source, and the oldest, traditional is ultraviolet.
MR. HARPOOTLIAN: Ultraviolet is a black light?
KENNETH ZERCIE: Yes, sir.
MR. HARPOOTLIAN: Okay. So, it's a simple mobile black light you can look at and --
KENNETH ZERCIE: Scanning a surface to see if it gives you any information.
MR. HARPOOTLIAN: And what other -- if you didn't use the powder or the light, what else could you do?
KENNETH ZERCIE: Use chemical fuming stains, and that can be as simple as the superglue or some monochloroacetic acid.
MR. HARPOOTLIAN: Can you do that on a scene?
KENNETH ZERCIE: With a door like that, if I chose to do that, literally you could bag the entire area, place a superglue packet or superglue with an accelerant in it inside the chamber, now inside the plastic bag, and fume the entire door. The other would be to take the door with you and process it.
MR. HARPOOTLIAN: But that takes awhile, doesn't it, the superglue process?
KENNETH ZERCIE: Not necessarily. You can in a half hour, 25 minutes.
MR. HARPOOTLIAN: Okay, and could you spray it with something else?
KENNETH ZERCIE: Again, the same agent that we use on the footprints to make those visible where there was limited amounts of blood-like material could also be used there.
MR. HARPOOTLIAN: And you could do that on the door, you could do that on the doorframe, you could do that on any object, methods you've talked about on any object literally in that room.
KENNETH ZERCIE: Yes, sir.
MR. HARPOOTLIAN: Okay. Did you see any evidence of anything, fingerprints, any effort to lift fingerprints -- and when I say lift, identify fingerprints in that room or anywhere else on the property that night?
KENNETH ZERCIE: Again, not to the best of my knowledge.
MR. HARPOOTLIAN: Let me talk just for a minute about --
MR. HARPOOTLIAN: How about put State's 195 up, please. Maybe see if we can turn that in a little bit. There we go. Now how about make it closer. Nope, the other way. Okay.
MR. HARPOOTLIAN: Tell me what this is, please.
KENNETH ZERCIE: It appears to be a photograph of multiple footwear impressions, three dimensional renderings in a soft surface.
MR. HARPOOTLIAN: Okay, and this picture was taken. Do you remember who took it?
KENNETH ZERCIE: No, sir, I don't.
MR. HARPOOTLIAN: Okay. Let me suggest this just to cut to the chase. Do you remember reading a statement concerning Solicitor Duffy Stone?
KENNETH ZERCIE: Yes, sir.
MR. HARPOOTLIAN: Was that picture taken by the solicitor?
KENNETH ZERCIE: I couldn't remember his name. I believe so.
MR. HARPOOTLIAN: Yes, and it was taken on the night of June 7th?
KENNETH ZERCIE: That's the indication in the letter.
MR. HARPOOTLIAN: So, tell me what we're looking at here.
KENNETH ZERCIE: Again, it's a soft sole surface. Someone or some people have been walking through that area multiple times.
MR. HARPOOTLIAN: And did you attempt to identify any of those footprints by comparing them?
KENNETH ZERCIE: Just by looking at the basic patterns, the flat surface ones that have relatively no detail, just the outline of the footwear itself, could be consistent with these sandals that Ms. Murdaugh was wearing.
MR. HARPOOTLIAN: Maggie Murdaugh was wearing. What about these other shoes?
KENNETH ZERCIE: There were no exemplars that I was made aware of taken by SLED to do a comparison or try to eliminate them.
MR. HARPOOTLIAN: Could you tell whether Maggie's shoes were walking over the other footprints, or were the other footprints walking over her imprints?
KENNETH ZERCIE: If those are from Maggie's sandals, they're on top of the other ones, but they're also going in two direction, and some are superimposed over the other.
MR. HARPOOTLIAN: When you say -- okay. Let me ask the question this way. Are Maggie's imprints on top of the other imprints, or are they on top of hers?
KENNETH ZERCIE: In the area that they appear, yes.
MR. HARPOOTLIAN: I'm sorry?
KENNETH ZERCIE: In the area in which they appear, the answer is yes.
MR. HARPOOTLIAN: Yes?
KENNETH ZERCIE: They were. They were made there after by the heavy --
MR. HARPOOTLIAN: And are they on top of Maggie's?
KENNETH ZERCIE: No, Maggie's are on top.
MR. HARPOOTLIAN: Okay. So, the other imprints were there and Maggie walked on top of them.
KENNETH ZERCIE: Apparently, yes.
MR. HARPOOTLIAN: Okay. Now -- well, you have also reviewed the SLED procedures manual, correct, parts of it?
KENNETH ZERCIE: In brief, yes, sir.
MR. HARPOOTLIAN: Okay, and let me ask you this. There's certain certifications different labs receive, correct?
KENNETH ZERCIE: Yes, sir.
MR. HARPOOTLIAN: And the certification SLED receives for their lab, is there an acronym?
KENNETH ZERCIE: The current acronym is ANAB, A-N-A-B. It's the America Board of Accreditation. I forget the last word. But it's a pickup from an older accreditation program that was run under the ASCLD program, the American Society of Crime Lab Directors.
MR. HARPOOTLIAN: And tell me just briefly how that accreditation program works.
KENNETH ZERCIE: A laboratory or a Crime Scene Unit can apply to this organization for this national -- actually it's international -- accreditation, which means that they're meeting a minimum criteria and minimum expectations from the parent body. All right. So, formal recognition technically that you're doing a good job, or at least your procedures are well written. The operation manual that I started reviewing was very thorough, was very well written, very easy to understand. But it involves everything from how evidence is processed in the agency, what the responsibilities of the different people are, including the director of the laboratory, the basic procedures and operations of the lab itself, or the Crime Scene Unit. If it's involved in a police department that may not have a formal laboratory, the accreditation is well recognized across the country and --
MR. HARPOOTLIAN: And so you're, you're -- they certify that you're meeting the standards basically?
KENNETH ZERCIE: That you're following the guidelines that you put in your guidelines, meet a minimum standard, yes.
MR. HARPOOTLIAN: Okay. So -- and have you ever performed these analyses? Have you ever been appointed or assigned by this group to do this to do this?
KENNETH ZERCIE: Yes, sir. The ASCLD, the precursor to ANAB, I was one of their auditors and we would go to different laboratories. In fact, I did the Columbia sheriff's department a number of years ago.
MR. HARPOOTLIAN: Richland County. I'm sorry, you said sheriff's department.
KENNETH ZERCIE: Yes, sir, I forget.
MR. HARPOOTLIAN: So, you're very familiar with what the standards are.
KENNETH ZERCIE: Yes, sir.
MR. HARPOOTLIAN: In reviewing what -- this file and these pictures and documents, was SLED following the procedures that are required by that certification on this case?
KENNETH ZERCIE: What I had for procedures were their operation manual, how to run the laboratory, and the functionalities. There's also a second set of documents called the technical documents for each one of the sections that would further in detail give you the information on how do to things. And, as example, recipes for chemical processing and how to put the chemicals together, how to apply them, and --
MR. HARPOOTLIAN: Well, they didn't apply any chemicals here.
KENNETH ZERCIE: Again, I didn't see those technical --
MR. HARPOOTLIAN: -- according to their records. Okay. I guess what I'm saying is, and maybe the easiest way to get this down to the generic, did they do what they were supposed to do under these standards at this crime scene for most things? Maybe they did some things that we're not aware of. But, for instance, you looked at a number of foot impressions, correct?
KENNETH ZERCIE: Yes, sir.
MR. HARPOOTLIAN: You're required to do the 90 degrees and then from different directions, right?
KENNETH ZERCIE: In the best case scenario, yes.
MR. HARPOOTLIAN: Did you see any footwear or foot impression that was taken that way?
KENNETH ZERCIE: No, sir.
MR. HARPOOTLIAN: Okay. All of them were from an angle?
KENNETH ZERCIE: Yes, sir.
MR. HARPOOTLIAN: And once you do that, are they suitable? I think we even saw --
MR. MEADORS: Objection. Leading.
JUDGE NEWMAN: Can't lead the witness.
MR. HARPOOTLIAN: Were any of those photographs -- no. Which, if any, of those photographs met the standards required to do a comparison?
KENNETH ZERCIE: None of the ones from around the victims or in the small shed area.
MR. HARPOOTLIAN: How many, if any, had that 90 degree on a tripod, if you will, shot? How many?
KENNETH ZERCIE: None of them.
MR. HARPOOTLIAN: Okay, and as a result of that, were any of them suitable for forensic comparison?
KENNETH ZERCIE: They were suitable for pattern identification, like gross pattern, but not as far as the detailed, individualizing, accidental characteristic that might be present.
MR. HARPOOTLIAN: Okay, and based on the reports we have, how many -- what effort, if any, was made to take fingerprints at the scene?
KENNETH ZERCIE: None that I had observed.
MR. HARPOOTLIAN: Okay. Did those -- does that conduct, either for the footprints or the fingerprints, meet the standards that you use or anybody else has used when they try to evaluate --
MR. MEADORS: Objection.
MR. HARPOOTLIAN: I'm sorry, I don't understand the objection.
MR. MEADORS: He said anybody else uses. Objection.
MR. HARPOOTLIAN: Any evaluating other department uses, any agency uses, any evaluating agency uses.
KENNETH ZERCIE: There was much more work that could have been done.
MR. HARPOOTLIAN: Okay. Did they do a terrible job here?
MR. HARPOOTLIAN: He's an expert. I can ask an opinion.
KENNETH ZERCIE: I don't know what their limitations were, and I don't what the training of the people doing the crime scene processing was, so to --
MR. HARPOOTLIAN: I'm not asking the limitations. Looking at it, did they do a terrible job here? Did they do a less -- terrible is the wrong word. Let me get it more scientific. An adequate job to show the absence of the -- the absence of any other evidence? Did they do an adequate job?
KENNETH ZERCIE: I do not believe so.
MR. HARPOOTLIAN: What?
KENNETH ZERCIE: I don't believe so.
MR. HARPOOTLIAN: Okay, and that's your expert opinion.
KENNETH ZERCIE: Correct. I think much more could have been done.
MR. HARPOOTLIAN: Okay, and much more being done might have uncovered additional evidence that would have exculpated Alex Murdaugh, help prove he's innocent, correct?
MR. MEADORS: Objection.
JUDGE NEWMAN: The basis for the objection.
MR. MEADORS: Speculation.
JUDGE NEWMAN: Any response?
MR. HARPOOTLIAN: Your Honor, it's what -- the key here is the absence of evidence. And certainly the absence of evidence -- if there was evidence they could have uncovered and they had done the process right, it would have helped at the minimum prove there was another person that did this crime.
JUDGE NEWMAN: Okay. Your speaking response, if you have one.
MR. MEADORS: He's testifying in addition to speculation.
MR. HARPOOTLIAN: He is testifying --
MR. MEADORS: I'm talking --
JUDGE NEWMAN: The objection is sustained.
MR. HARPOOTLIAN: Thank you. Beg the Court's indulgence one moment.
(Break in proceedings.)
MR. HARPOOTLIAN: No further questions.
JUDGE NEWMAN: All right. Cross-examination.
CROSS-EXAMINATION
BY MR. MEADORS:
MR. MEADORS: Good afternoon.
KENNETH ZERCIE: Good afternoon, sir.
MR. MEADORS: Wouldn't you have loved to have been Laura Rutland?
KENNETH ZERCIE: I'm not sure who Laura Rutland is.
MR. MEADORS: You don't know who Laura Rutland is?
KENNETH ZERCIE: No, sir.
MR. HARPOOTLIAN: Objection, Your Honor. He's already indicated he doesn't know who Laura Rutland is. It's repetitive. Say it one more time, please.
MR. MEADORS: Mr. Harpootlian asked you if you can -- maybe -- I think he told you you had read all the records in this case and you said yes. Do you remember?
KENNETH ZERCIE: No, sir. I've been qualifying that each time he stated it.
MR. MEADORS: I'm sorry, do what?
KENNETH ZERCIE: I have been qualifying that question each time he said that the records that were made available to me. The entire case jacket was not made available.
MR. MEADORS: So, tell these folks what was made available to you.
KENNETH ZERCIE: Photographs from the coroner's office that were taken apparently by a photographer representing them at the scene. Photographs, I believe, that were taken by SLED, or an investigative agency. Later I was the recipient of four images now I know were taken by the state -- we call them state's attorneys, district attorney. Copies of the autopsy report. Some of SLED's investigative reports, such as the fingerprint section, which actually also did the footwear -- or the footwear examination. That's -- I was given access to the operation manual for SLED. And the letter that I just referred to as far as the origin of some of the photographs.
MR. MEADORS: So, you have not read all the records in this case.
KENNETH ZERCIE: Correct.
MR. MEADORS: Okay, and you don't know who Laura Rutland is.
KENNETH ZERCIE: No, sir, I don't.
MR. MEADORS: Would it be important for somebody -- well, let me ask you this much. When did you get all of that, the reports and the pictures from -- when did you receive those in your possession?
KENNETH ZERCIE: Some of them as long as two months ago, three months ago. Others today.
MR. MEADORS: And I spent the weekend looking through some of your background.
KENNETH ZERCIE: Yes, sir.
MR. MEADORS: You provide reports in a lot of cases, don't you?
KENNETH ZERCIE: Yes, sir, I do.
MR. MEADORS: Written reports?
KENNETH ZERCIE: Yes, sir.
MR. MEADORS: What you do, what your findings were, correct?
KENNETH ZERCIE: Yes, sir.
MR. MEADORS: And, in fact, you do that in most cases, don't you?
KENNETH ZERCIE: Yes, sir.
MR. MEADORS: Did you do a report in this case?
KENNETH ZERCIE: It was not requested.
MR. MEADORS: Well, so are you taking notes or are you just doing all of that from memory up there?
KENNETH ZERCIE: Testimony so far has been more about procedural issues and the specifics of things that I've already reviewed.
MR. MEADORS: I understand that, but that wasn't answering my question, respectfully. Have you done a report for yourself? Have you --
KENNETH ZERCIE: Do I have notes that I was taking? Yes.
MR. MEADORS: Do you have those?
KENNETH ZERCIE: Do I have them with me?
MR. MEADORS: Yes, sir.
KENNETH ZERCIE: Strictly what's on my computer.
MR. MEADORS: Do you want to provide those to me?
MR. HARPOOTLIAN: Objection, Your Honor. He's entitled to reports, not his notes. He's not entitled to Brady. He's not entitled to anything but a report under Rule 5, and there is no such thing.
MR. MEADORS: Your Honor, he just said if you wish. He just told me I could have it.
JUDGE NEWMAN: I didn't ask for argument. The objection is overruled.
MR. MEADORS: You said I can look at them?
KENNETH ZERCIE: They're not physically here, but whatever I have at another location, you're more than welcome to.
MR. MEADORS: You said you had them on your computer.
KENNETH ZERCIE: Not all of the handwritten notes. Any of the documentation that was given was by virtue of digital copies.
MR. MEADORS: But you have something on your computer up there. You actually motioned toward it.
KENNETH ZERCIE: Please.
MR. MEADORS: You have some on your computer up there?
KENNETH ZERCIE: Not the actual notes, no. I have the actual documents I received to review. The handwritten notes or any of the notations on images or photographs are at another location.
MR. MEADORS: When did you prepare -- we got the PowerPoint last night about 10:00. When did you prepare that?
KENNETH ZERCIE: Which one?
MR. MEADORS: The only -- is there more than one?
KENNETH ZERCIE: There were two.
MR. MEADORS: Where is the other one?
KENNETH ZERCIE: They were both shown.
MR. MEADORS: Those were two PowerPoints?
KENNETH ZERCIE: They were two separate ones, yes. I take it back. I'm mistaken.
MR. MEADORS: You what? What did you just say?
KENNETH ZERCIE: I said was mistaken. There was one PowerPoint; there were two sections to it.
MR. MEADORS: And when did you provide that?
KENNETH ZERCIE: Probably a week ago.
MR. MEADORS: You just said you were mistaken. You have made mistakes in your life, haven't you?
KENNETH ZERCIE: Yes, sir. I have an eraser on my pencil.
MR. MEADORS: And I'm old school, you're old school, and I don't mean that bad.
KENNETH ZERCIE: Thank you.
MR. MEADORS: And when you were around investigating a crime scene years ago, you didn't wear booties every time you were on the crime scene.
KENNETH ZERCIE: When I started doing crime scenes, they weren't part of the equipment.
MR. MEADORS: So, my --
KENNETH ZERCIE: As technology has come along, the fear of contamination, they become standard operating procedures.
MR. MEADORS: But you have not always wore foot protection when you were on a crime scene, have you?
KENNETH ZERCIE: Going back twenty, thirty, forty years ago, no, sir.
MR. MEADORS: And you've made mistakes before.
KENNETH ZERCIE: As everyone in this room, yes.
MR. MEADORS: Yes, sir. Well, as you just did a minute ago, too?
MR. MEADORS: Can I pull up one whoever -- do you have those? Do you mind? Would you pull up something for me?
UNIDENTIFIED SPEAKER: Of course.
MR. MEADORS: 195, please. If you're not --
(Break in proceedings.)
MR. MEADORS: Thank you. I didn't mean to --
(Break in proceedings.)
MR. MEADORS: Now, do you remember a minute ago when Mr. Harpootlian asked you about State's 195?
KENNETH ZERCIE: Yes, sir.
MR. MEADORS: And it's important when these footprints were put on here, isn't it?
KENNETH ZERCIE: Yes, sir.
MR. MEADORS: And do you know who first saw those footprints?
KENNETH ZERCIE: No, sir.
MR. MEADORS: You don't? That's right. It's Laura Rutland. Would it have been important to you to come in -- and you're basically second guessing the Colleton County Sheriff's Department, the South Carolina Law Enforcement Division -- well, you're being paid to come in and say they did a bad job, aren't you?
KENNETH ZERCIE: I even qualified that answer. Depending on the limitations of their skill sets, depending on the limitations of equipment that they have, and their training, they may have done the best job they could have.
MR. MEADORS: But you're second guessing the Colleton County Sheriff's Department and SLED and saying they did a bad job, isn't it?
KENNETH ZERCIE: With that particular image --
MR. MEADORS: Well, now, you've said it about the whole case --
MR. HARPOOTLIAN: Objection. He's not finished. Have you finished your answer? I'm sorry.
MR. MEADORS: Go ahead. I'm sorry.
KENNETH ZERCIE: Are you referring to this image or the entire --
MR. MEADORS: Right now, yes, sir.
KENNETH ZERCIE: As far as that picture goes, it's a good general overview documentation of an area. Without additional photographs, which I know there were -- there were four in the series, if I'm not mistake. It does show this area in concert with the portion of the crime scene. That can be equated back to one of the diagrams that was prepared. This particular picture is a medium close-up showing a particular area, as I tried to explain, with the photography showing multiple images and how they relate to one another. The other photograph would show how it relates to the scene. The part that's missing are the macro, or the close-up photographs, showing the detail of the images so that should a pair of shoes or article of footwear be available, they could then be directly compared and analyzed and either included or excluded for consideration in a case.
MR. MEADORS: And if you had a witness -- let me just ask. If you're giving an opinion up here and evaluating a crime scene, wouldn't you want to know if there was a witness who saw this image when they were just the sandals on it? Wouldn't you want to know that if you were evaluating, second guessing whether law enforcement did a good job? Wouldn't you want to know that?
KENNETH ZERCIE: It would be helpful, but that's not what I was presented with.
MR. MEADORS: You weren't even presented with that.
KENNETH ZERCIE: I was presented with a photograph and asked to interpret what's there.
MR. MEADORS: But if there's a witness who said I saw those and they were just those sandal prints and nothing else there, you would want to know that.
KENNETH ZERCIE: First off, I'm not an investigator. I don't do interviews. I don't talk to people about what they did or saw. As a scientist, you evaluate the information that you're given to work with insofar as possible. These images have very limited value for analysis. How they got there, I don't know. An article of footwear came in contact with that surface, as I explained, and left an impression, a three dimensional image. As far as who was there, how many people walked through, I don't know. I was not at the scene at the time of the incident, nor have I ever been to the crime scene.
MR. MEADORS: You've never been to the crime scene.
KENNETH ZERCIE: Correct.
MR. MEADORS: I mean, isn't that important if you're going to --
KENNETH ZERCIE: Not for the limited purpose I was asked to look at the evidence. And as the time had elapsed, there's no way to go back to a scene that occurred two years and try to interpret evidence that probably no longer exists.
MR. MEADORS: Will you just please answer this one question?
KENNETH ZERCIE: Yes, sir.
MR. MEADORS: The -- if there was information from an individual who saw this scene on June 7, '21, that when she saw it there were nothing but sandal prints and nothing else, wouldn't you want to know that?
KENNETH ZERCIE: Again, as a scientist I can only deal with what it is put in front of me. I avoid witness statements because of their unreliability.
MR. MEADORS: An eye witness who said I just saw sandals, you would not want to know that.
KENNETH ZERCIE: I would not care. I am looking --
MR. MEADORS: Would you care back when you were this -- a beat cop if you just saw sandals yourself?
KENNETH ZERCIE: I was not a scientist at that point. I was not subject to bias accusations, right, and undue influence from others.
MR. MEADORS: You're talk about Mr. Harpootlian or me?
KENNETH ZERCIE: Both.
MR. MEADORS: Okay, and the reason I'm following up on that, and I wasn't clear. Mr. Harpootlian said were these over other imprints or over -- they're actually over each other. The sandals are over themselves, imprints, correct?
KENNETH ZERCIE: I said that, yes.
MR. MEADORS: Well, it wasn't clear. You're not saying they were over these other.
MR. HARPOOTLIAN: Objection, Your Honor. It may not have been clear to Mr. Meadors. It was clear to me; it was clear to everybody else in the courtroom.
KENNETH ZERCIE: I also stated --
JUDGE NEWMAN: The objection is sustained.
MR. HARPOOTLIAN: Objection.
JUDGE NEWMAN: The objection is sustained.
MR. HARPOOTLIAN: Thank you.
JUDGE NEWMAN: The examination by counsel is cross- examination. It's not direct examination.
MR. MEADORS: And finally on this topic, Mr. Harpootlian said that these photos were taken on June 7th of 2021, and that's what you thought, correct? That's what you were provided.
KENNETH ZERCIE: The appearance from the letter that was, I believe, attached to those images gave that indication, yes.
MR. MEADORS: And did it say what --
MR. MEADORS: Beg the Court's indulgence.
(Break in proceedings.)
MR. MEADORS: They were actually taken on June 8th of 2023 (sic) later that day. Did you know that?
KENNETH ZERCIE: Apparently the person who authored the letter authenticating the photograph was inaccurate.
MR. MEADORS: I'm going to show you what's marked as State's 55 -- excuse me, 565, Mr. Zercie.
KENNETH ZERCIE: Yes, sir.
MR. MEADORS: Do you recognize those?
KENNETH ZERCIE: Yes, sir.
MR. MEADORS: Your Honor, without objection 565.
MR. HARPOOTLIAN: Oh, no objection, Your Honor.
JUDGE NEWMAN: Admitted without objection.
(PHOTO MARKED AS STATE'S EXHIBIT NUMBER 565 WAS RECEIVED INTO EVIDENCE.)
MR. MEADORS: Now, Mr. Zercie, looking at the -- I think it's State's 139, and this now State's 565, using common sense, are those consistent with this?
MR. HARPOOTLIAN: Objection, Your Honor.
JUDGE NEWMAN: What's the nature of the objection?
MR. HARPOOTLIAN: He's an expert.
JUDGE NEWMAN: Or legal basis for the objection?
MR. HARPOOTLIAN: The legal basis he's applying the wrong standard, common sense. He's a scientist. He can make a comparison scientifically.
JUDGE NEWMAN: The objection is overruled.
MR. HARPOOTLIAN: Thank you.
KENNETH ZERCIE: In general pattern, design, these pair of sandals possibly made the smooth imprints that appear in the picture. However, I cannot tell you a size or individual patterns as the images here, again, were not reported properly, if that's what they were.
MR. MEADORS: Okay.
KENNETH ZERCIE: There are similarities to basic pattern design to these shoes.
MR. MEADORS: Okay, and you would have said that -- I'm sorry, you would have said that as a beat cop forty years ago and the same thing right now today, wouldn't you?
KENNETH ZERCIE: Except now have I to do it now as an expert witness, which is much different.
MR. MEADORS: You're getting paid a lot more.
KENNETH ZERCIE: Yes, sir.
MR. MEADORS: How much are you getting paid an hour?
KENNETH ZERCIE: The base fee was 350 an hour.
MR. MEADORS: I'm sorry?
KENNETH ZERCIE: $350 an hour.
MR. MEADORS: That's the base.
KENNETH ZERCIE: Yes, sir.
MR. MEADORS: Do you get paid for travel?
KENNETH ZERCIE: Yes, sir.
MR. MEADORS: How much?
KENNETH ZERCIE: This time strictly the airfare.
MR. MEADORS: Okay. You don't get paid while you're traveling?
KENNETH ZERCIE: No, I'm not charging for time.
MR. MEADORS: You usually do?
KENNETH ZERCIE: Again, depends on the circumstance.
MR. MEADORS: And you know I've got ask this.
KENNETH ZERCIE: That's okay.
MR. MEADORS: Do you get paid more for sitting in that chair than you do for not being -- inside the courtroom testimony costs more than outside?
KENNETH ZERCIE: It's the same fee.
MR. MEADORS: 350?
KENNETH ZERCIE: It's a basic 10 hour charge for testimony.
MR. MEADORS: And how many hours have you logged so far?
KENNETH ZERCIE: Total 20 plus today, and, you know, the travel. I'm charging for the travel time.
MR. MEADORS: Is there an extra charge for the PowerPoint?
KENNETH ZERCIE: No, sir. It's all part of the examination.
MR. MEADORS: Beg the Court's indulgence.
(Break in proceedings.)
MR. MEADORS: I'm going to show you what's marked State's 559 and 558, Mr. Zercie. Do you recognize those?
KENNETH ZERCIE: Yes, sir, I do.
MR. MEADORS: Your Honor, 558 and 559 without objection.
MR. HARPOOTLIAN: Without objection, Your Honor.
JUDGE NEWMAN: They're admitted.
(PHOTO MARKED AS STATE'S EXHIBIT NUMBER 558 WAS RECEIVED INTO EVIDENCE.)
(PHOTO MARKED AS STATE'S EXHIBIT NUMBER 559 WAS RECEIVED INTO EVIDENCE.)
MR. MEADORS: 560 and 561, Mr. Zercie? Do you recognize those?
KENNETH ZERCIE: Yes, sir, I do.
MR. MEADORS: Your Honor, 560 and 561 without objection.
MR. HARPOOTLIAN: No objection.
JUDGE NEWMAN: They're admitted.
(PHOTO MARKED AS STATE'S EXHIBIT NUMBER 560 WAS RECEIVED INTO EVIDENCE.)
(PHOTO MARKED AS STATE'S EXHIBIT NUMBER 561 WAS RECEIVED INTO EVIDENCE.)
MR. MEADORS: 564?
KENNETH ZERCIE: Yes, sir, I do.
MR. MEADORS: 564 without objection, Your Honor?.
MR. HARPOOTLIAN: Without objection, Your Honor.
JUDGE NEWMAN: They're admitted.
(PHOTO MARKED AS STATE'S EXHIBIT NUMBER 564 WAS RECEIVED INTO EVIDENCE.)
MR. MEADORS: 566?
KENNETH ZERCIE: Yes, sir.
MR. MEADORS: And you're saying yes, sir. That means you recognize them and --
KENNETH ZERCIE: Yes, sir.
MR. MEADORS: 566 without objection.
MR. HARPOOTLIAN: Without objection.
MR. MEADORS: And 557?
KENNETH ZERCIE: Yes, sir.
MR. MEADORS: 557 without objection, Your Honor.
MR. HARPOOTLIAN: Without objection.
JUDGE NEWMAN: They're admitted.
(PHOTO MARKED AS STATE'S EXHIBIT NUMBER 566 WAS RECEIVED INTO EVIDENCE.)
(PHOTO MARKED AS STATE'S EXHIBIT NUMBER 557 WAS RECEIVED INTO EVIDENCE.)
MR. MEADORS: 562 and 563.
KENNETH ZERCIE: Yes, sir. I'm familiar with this report and this one.
MR. MEADORS: Your Honor, 562 and 563 without objection.
MR. HARPOOTLIAN: Without objection, Your Honor.
JUDGE NEWMAN: They're admitted.
(PHOTO MARKED AS STATE'S EXHIBIT NUMBER 562 WAS RECEIVED INTO EVIDENCE.)
(PHOTO MARKED AS STATE'S EXHIBIT NUMBER 563 WAS RECEIVED INTO EVIDENCE.)
MR. MEADORS: And Doctor --
KENNETH ZERCIE: Mister.
MR. MEADORS: Apologize, Mister.
KENNETH ZERCIE: No problem.
MR. MEADORS: Mr. Zercie, 56 -- I'll stand back here so everybody can here, sorry. 556 and 55 -- 564 are pictures of Paul's shoes and Alex's shoes, correct?
KENNETH ZERCIE: They are photographs taken at the laboratory of the two articles that you mentioned by ownership apparently.
MR. MEADORS: Who've been identified as Paul and Alex's shoes.
KENNETH ZERCIE: Okay, yes.
MR. MEADORS: And then what are these, 561 and 560?
KENNETH ZERCIE: Depending on the methodology that was used, either placing a slurry on the bottom of the shoe, rolling it onto a contrasting surface, i.e., a piece of paper, of both you have a set of the left and two sets of the right shoe, all right, to try to record any of the detail that would show in a two dimensional impression when the shoe comes in contact with the surface.
MR. MEADORS: And that's 589 (sic) and 559, I believe, are the right shoe, and 560 and 561 are the left shoe of Alex Murdaugh. Would you disagree with that?
MR. MEADORS: And that's good to do, isn't it?
KENNETH ZERCIE: Yes.
MR. MEADORS: No question about that.
KENNETH ZERCIE: It's part of the examination process.
MR. MEADORS: Take a picture of the soles.
KENNETH ZERCIE: Photograph the items.
MR. MEADORS: Do an imprint.
KENNETH ZERCIE: Life size, not as represented in those pictures, but yes.
MR. MEADORS: Because you're trying to see if there are characteristics, correct?
KENNETH ZERCIE: If you have something to compare them to, yes.
MR. MEADORS: Class first.
KENNETH ZERCIE: There's five criteria: size, shape, wear, pattern, manufacturer. And the final one is individual, the accidental cuts, scratches, gouges, or residue that may be stuck in the bottom of the shoe that would leave a pattern behind.
MR. MEADORS: General class, and then see if you've got some kind of individual defect -- I'm pronate, so that would show on my shoes, wouldn't it?
KENNETH ZERCIE: Yes, sir. And if you're supinated, it would, too.
MR. MEADORS: Say what? Super -- I've got you, my bad. I didn't hear you.
KENNETH ZERCIE: It's the way the foot flexes at the ankle.
MR. MEADORS: I understand. I didn't hear you. And 198 and 199 are already in evidence. Would you dispute that these were the right and left of Paul?
KENNETH ZERCIE: They were shown to me as representative that, yes.
MR. MEADORS: Okay, and that's good?
KENNETH ZERCIE: Yes.
MR. MEADORS: I mean, that's good law enforcement?
KENNETH ZERCIE: That's part of the examination process, yes, sir.
MR. MEADORS: And what's now been admitted into evidence, SLED's report by Special Agent Worley -- two reports, one more detailed than the other where she basically gave her conclusions about looking at these footwear impressions, correct?
KENNETH ZERCIE: Yes, sir.
MR. MEADORS: Okay, and you can't disagree with anything that she came up with, can you?
KENNETH ZERCIE: No. In fact, I agree with her comments about the limitations that were placed on her to do the analysis.
MR. MEADORS: Pretty good examination, wasn't it?
KENNETH ZERCIE: I have no problem with it.
MR. MEADORS: You have no problem with it.
KENNETH ZERCIE: No, sir, in regards to the limitations that were placed on her.
MR. MEADORS: But she tried.
KENNETH ZERCIE: Yes, sir.
MR. MEADORS: And they tried.
KENNETH ZERCIE: Yeah.
MR. MEADORS: And they took pictures.
KENNETH ZERCIE: And the pictures that were taken made it difficult, if not impossible, as she states in her report to draw a positive conclusion in one direction or another, to only be able to give a class characteristic of basic pattern design.
MR. MEADORS: She wasn't basically 90 degrees over it, but the picture was there -- still there, correct?
KENNETH ZERCIE: Pardon?
MR. MEADORS: She could still compare these to a picture, couldn't she?
KENNETH ZERCIE: As far as general pattern characteristics, yes.
MR. MEADORS: And I think Mr. Harpootlian showed you some of these. They're out of order.
MR. MEADORS: Beg the Court's indulgence.
(Break in proceedings.)
MR. MEADORS: An ink impression and overlay of Item 103, shoes, which I think you and I've identified were Paul's shoes, correct?
KENNETH ZERCIE: If that's the number that's on the shoe, yes.
MR. MEADORS: Okay, and she compared those to the digital photos, and I think -- were they in here where it's -- 38 has got a 1051. Do you remember looking at these?
KENNETH ZERCIE: Yes, sir.
MR. MEADORS: And 1052, and 1053, inside the feed room?
KENNETH ZERCIE: Yes, sir.
MR. MEADORS: And 1055. 1051, right here. And did she make that mark and put it on there, 1055 -- 105.1?
KENNETH ZERCIE: Yes.
MR. MEADORS: Okay, and again, that's State's 38.
KENNETH ZERCIE: Again, to the best of my knowledge she made that mark.
MR. MEADORS: I understand. What did she conclude with that?
KENNETH ZERCIE: If I could have the report, I would be happy to read it, either her report or her work notes, either one.
MR. MEADORS: How about if I hand you this? I haven't got enough room in here. I'm sorry.
KENNETH ZERCIE: This is from her examination worksheets under the --
MR. MEADORS: 105.1.
KENNETH ZERCIE: -- under the accreditation. These notes would have been taken contemporaneous with the examination that she was conducting. Now, there may be a typed transcript of those. And could you repeat which section again?
MR. MEADORS: You've got my marked copy.
KENNETH ZERCIE: There's a mark on 103.2. You have an underlined section on 105.1.
MR. MEADORS: 105.1. Read my underlined section, please.
KENNETH ZERCIE: Strictly that out of context?
MR. MEADORS: No, read it all. I didn't mean that. You read all -- everything you want. Tell them about what she did. Tell them everything.
KENNETH ZERCIE: No, this is what Agent Worley did from her examination worksheet dated 6/23/2021. All right, regarding liability testing, not applied. All right, examination notes, subsection -- section 105 for item 105.1: Unknown footwear impression in photograph numbered 0139. Each photograph that was taken has a specific number assigned to it by the digital cameras so you can go back to that specific image. Near the feed room door threshold, this would be, to me, it's closest to the entry way itself. The Item 105, unknown footwear impression: Consists of partial impressions and suspected blood on the cement floor. The outsole design consists of at least four rows of parallel rectangular blocks. One block is in a row by itself and appears to be two blocks that are joined together, forming more of a V or a U shape. Due to the amount of suspected blood -- All right. -- in the impression, it is difficult to determine if those or any of the blocks that appear to be joined together are actually joined in the design, or if the volume of suspected blood is masking the separation of the joints. The sentence with the underlying section: Overall, the Item 105.1, unknown footwear impression, is consistent with the outsole design of the Item 103 right shoe.
MR. MEADORS: That's consistent with Paul's shoe, correct? Assuming Paul's shoes is 103.
KENNETH ZERCIE: It's consistent with that one that's represented, yes. Okay. Again, this is her opinion.
MR. MEADORS: I understand.
KENNETH ZERCIE: All right: Specifically the unknown impressions appear to be consistent with this second through the sixth rows of the toe end of the outsole. There is barely a noticeable difference between the design on the left or the right shoe. However, there is a slight variation in the slant of the blocks, especially in the middle row of the impression. Additionally, it's the photograph were -- if the photographs were true to size, there is an outline of the blocks that would align with the fifth row of the toe end of the shoe, which is obscured in Item 103, left shoe, but is clearly visible on the right shoe due to the quantity --
MR. MEADORS: Is that quality?
KENNETH ZERCIE: Quality, excuse me: --- of the impression, a more meaningful conclusion cannot be rendered. The Item 21 and 95 -- All right. -- have been eliminated based on the outsole design.
MR. MEADORS: So --
KENNETH ZERCIE: Those would be Paul's shoes and Maggie's.
MR. MEADORS: So, she found that that was consistent with Paul's shoe, correct?
KENNETH ZERCIE: Based on her opinion, yes.
MR. MEADORS: I'm not going to go through every one of these, but I just want to briefly go through -- did she also on the 1052 footwear impression say that Paul's shoes were consistent?
KENNETH ZERCIE: And continues: The lack of clarity in the impression makes it difficult to determine if it was made by the left or the right shoe. Therefore, more a meaningful conclusion cannot be reached and they were eliminated.
MR. MEADORS: It's consistent, correct? The lack of clarity make it difficult to determine a more meaningful but it's consistent, right? They weren't eliminated. Why did you say that?
KENNETH ZERCIE: I read the next line.
MR. MEADORS: Yeah, but that's Item 21 and 95, remember. You were trying to imply --
KENNETH ZERCIE: No, no, no, I wouldn't do that.
MR. MEADORS: You made a mistake?
MR. MEADORS: Well, you said they were eliminated --
MR. HARPOOTLIAN: Your Honor, I object to him standing up badgering this witness next to him. He can read it. He can comment from back here. He's in the doorway, but again I object.
JUDGE NEWMAN: All right.
KENNETH ZERCIE: For clarity --
MR. MEADORS: He's been standing up here the whole time and aimed a gun at us yesterday from here. He aimed a gun at us yesterday.
JUDGE NEWMAN: You're standing in the doorway.
MR. HARPOOTLIAN: Your Honor, I don't believe what's good for the goose is good for the gander is the rule, and I can't find it in my rule book.
JUDGE NEWMAN: When we're operating with limited space, just as a matter of trial procedure, it's extremely unusual for counsel to stand in the location where counsel has been standing throughout the trial, but given the limited space it's somewhat understandable. But he has moved to the podium. Go right ahead.
MR. MEADORS: Did you misspeak just then?
KENNETH ZERCIE: I did. All right. The last sentence states the Items 21 and 95, the other two articles of footwear, are eliminated based on their outsole design.
MR. MEADORS: But Paul's wasn't eliminated.
KENNETH ZERCIE: In very a basic way. Again, by her report, but what she reports is a contamination issue, all right, blood seeping into other areas. The detail is not there to be definitive. Also there is no rendering of the size of the image from any of the crime scene photographs. Could it be this big, or could it be this big? I can't eliminate based on size.
MR. MEADORS: If we could go to 105.3, and I'll stay back here. I left you a copy there and I've got a copy.
KENNETH ZERCIE: Yes, sir.
MR. MEADORS: That's an unknown footwear impression represented --
MR. HARPOOTLIAN: Your Honor, I wish he would tell us what exhibit.
MR. MEADORS: I'm trying to find it right now. It's the report that you didn't object to.
MR. HARPOOTLIAN: I don't object to it. I just want to know what it is.
MR. MEADORS: It's one -- 562.
MR. HARPOOTLIAN: Thank you.
MR. MEADORS: I'm sorry.
MR. MEADORS: I forgot where we were.
KENNETH ZERCIE: 105.3.
MR. MEADORS: Thank you. Under 105.3, can you tell me -- which is comparing -- I'm looking now at State's 40, and do you see 105.3 in State's 40? And did you review that when you were evaluating this case and --
KENNETH ZERCIE: I read the reports and matched photographs up to the scene, yeah. Sorry.
MR. MEADORS: And did Agent Worley conclude that Item 105.3, unknown footwear impression, is consistent with the outside outsole design of Item 103 right shoe? Did she conclude that?
KENNETH ZERCIE: I just --
(Break in proceedings.)
MR. MEADORS: I would have picked it up if I was still up there. I'm sorry. 105.3.
KENNETH ZERCIE: It just says it cannot be excluded.
MR. MEADORS: Did she say impression is consistent with the outside design of 103, right shoe in the second paragraph?
KENNETH ZERCIE: And continuing: Although there was minimal amount of detail observed, Item 103, right shoe, cannot be excluded due to the basic design and structure. Again, the limited amount of detail made a -- very qualified findings. The other part, continuing on with this document and her final report, they all indicate that there had been no size comparison, and again, there's no way to determine that.
MR. MEADORS: But she tried.
KENNETH ZERCIE: She tried the best she could, yes.
MR. MEADORS: And going on down 105.4, there was an unknown impression represented on the back of Maggie's leg.
KENNETH ZERCIE: Yes, sir.
MR. MEADORS: And I don't even know if he talked about it, but I'm going to, 541.
KENNETH ZERCIE: Yes, sir.
MR. MEADORS: What did she say about that? What were her findings.
KENNETH ZERCIE: I believe that she couldn't do anything with it.
MR. MEADORS: Although there's a definite pattern visible, it cannot be definitively termined -- determined if the impression is a footwear impression, or if it was created by some other object, right?
KENNETH ZERCIE: Correct.
MR. MEADORS: And you agree with that.
KENNETH ZERCIE: Yes.
MR. MEADORS: And the only thing she said, that it was kind of consistent were the fabric portion of Item 95 sandals that couldn't be excluded. And those are Maggie's sandals, right? We don't know what it is, right?
KENNETH ZERCIE: Correct.
MR. MEADORS: Sandals?
KENNETH ZERCIE: Could be that, could be anything.
MR. MEADORS: Could be a tire of an ATV?
KENNETH ZERCIE: Possible.
MR. MEADORS: And let's keep going. We're almost through. 105.5, and is that comparing the shoes with 557, which has been offered?
KENNETH ZERCIE: What is 557?
MR. MEADORS: It's right here.
KENNETH ZERCIE: Okay.
MR. MEADORS: 105.5 and 105.6. You've looked at this.
KENNETH ZERCIE: The area behind the door, yes, sir.
MR. MEADORS: You've looked at that. Overall the Item 105.5, unknown footwear corresponds with the outside -- outsole design of item, what, right shoe?
KENNETH ZERCIE: Item 103.
MR. MEADORS: That's Paul.
KENNETH ZERCIE: Again, these are class identification. There is very limited detail.
MR. MEADORS: And let's go to the final one here, 105.6: Unknown footwear impression, too partial to determine if it was made by the square diamond pattern of one of the Item 21 shoes. Therefore, no conclusion could be rendered. Item 105.6, unknown footwear impression was not made by 95 and 103.
KENNETH ZERCIE: Yes, sir.
MR. MEADORS: She examined every footwear, every one of these, correct? She being Agent Worley?
KENNETH ZERCIE: According to her report, yes, sir.
MR. MEADORS: Took pictures of them, imprints of them?
KENNETH ZERCIE: Yes, sir.
MR. MEADORS: Compared them?
KENNETH ZERCIE: Yes, sir.
MR. MEADORS: And --
KENNETH ZERCIE: So, far as she could.
MR. MEADORS: And came up with a report.
KENNETH ZERCIE: Again, I was not requested to bring a report.
MR. MEADORS: So, you don't have a report.
KENNETH ZERCIE: Correct, sir. I've said that three times.
MR. MEADORS: Beg the Court's indulgence.
(Break in proceedings.)
MR. MEADORS: So, you have no idea if everything else they didn't provide you was done 100 percent correct, do you?
KENNETH ZERCIE: No, sir.
MR. MEADORS: Thank you. That's all.
JUDGE NEWMAN: Any redirect?
MR. HARPOOTLIAN: Yes, sir, very, very, very brief.
REDIRECT EXAMINATION
BY MR. HARPOOTLIAN:
MR. HARPOOTLIAN: Let me see if I can do this in less than 5 minutes. He asked you -- there's a photograph up here he asked you about in the sand with impression -- shoes impressions, right?
KENNETH ZERCIE: Yes, sir.
MR. HARPOOTLIAN: So, if this Laura Rutland person that saw this earlier said all she saw were sandals when she got to the crime scene, and then there were impressions over those sandals, would that indicate that somebody in some way spoiled or affected the crime scene that arrived after the police did, or with the police, or were the police?
KENNETH ZERCIE: After the observation, yes.
MR. HARPOOTLIAN: Is that something encouraged in these policies and procedures, to actually walk over footprints in the crime scene?
KENNETH ZERCIE: The primary redress at any scene is to protect the evidence, whatever it might be.
MR. HARPOOTLIAN: Was that protected?
KENNETH ZERCIE: I don't know.
MR. HARPOOTLIAN: It would appear if one officer saw just sandal impressions and then after that there were footprints on it, it's not protected, is it?
MR. MEADORS: Objection to leading.
JUDGE NEWMAN: Can't lead the witness.
MR. HARPOOTLIAN: We'll move on. So, you were asked if Agent Worley did all she could do, and you said she tried.
KENNETH ZERCIE: Yes, sir.
MR. HARPOOTLIAN: Okay. Now, she tried with -- she even says that the impressions, the pictures of the impressions are inadequate, correct?
KENNETH ZERCIE: Yes, sir.
MR. HARPOOTLIAN: And that's because they didn't follow the simple procedures you've been doing for the last two -- and most police departments have done for the last two or three decades, right?
KENNETH ZERCIE: And has been taught for a number of years.
MR. HARPOOTLIAN: No tripod, no direct angle. And let me ask you this. I believe we've asked this before, but if she had done what you did in that New York crime scene and sprayed a chemical --
MR. MEADORS: Objection, Your Honor.
JUDGE NEWMAN: I haven't heard the question.
MR. HARPOOTLIAN: I haven't finished.
MR. HARPOOTLIAN: So, if she had sprayed the chemical we saw in the pictures that you had in your PowerPoint from New York, what, if any, difference could that have made?
KENNETH ZERCIE: If there was a blood-like substance present, and more especially in and around the partial print that were visible, it could give you additional detail and further enhance the pattern design, and hopefully give you individualizing characteristics for comparison at a later date. The difficulty with this whole case is I can't tell you when those prints were put there.
MR. HARPOOTLIAN: You can't tell me what?
KENNETH ZERCIE: I cannot tell you when those prints were there. The only comment that you can make is sometime prior to the time the photographs were taken, the print was placed there.
MR. HARPOOTLIAN: Okay, and this technology of using that spray is decades old, also?
KENNETH ZERCIE: Yes, sir, it is.
MR. HARPOOTLIAN: You said she tried. Could she have tried harder? Could she have tried better? Could she have done -- used the techniques that were around for twenty or thirty years to make sure it wasn't the perpetrator's bloody footprint in the feed room? Could she have done that?
KENNETH ZERCIE: She or someone with her investigative group that would be qualified to do that.
MR. HARPOOTLIAN: Okay, and he asked you a series of questions that went on for 10 minutes about she compared this --
MR. MEADORS: Objection.
JUDGE NEWMAN: All right. The objection is sustained as to the comment.
MR. HARPOOTLIAN: Were you asked about a series of -- a report with a series of comparisons of pictures with different known shoe impressions?
KENNETH ZERCIE: Yes, sir.
MR. HARPOOTLIAN: And I believe you indicate that -- now, if there was a match, what word would be used? Would it be consistent or would it be something stronger?
KENNETH ZERCIE: It depends on the type of analysis and the amount of information that you could cull or get from it.
MR. HARPOOTLIAN: Do you ever say this shoe made that impression?
KENNETH ZERCIE: In an all -- better world with proper individualizing characteristic in the five criteria that I mentioned before, you could reach that conclusion.
MR. HARPOOTLIAN: But she says consistent.
KENNETH ZERCIE: Correct.
MR. HARPOOTLIAN: That's not that shoe made that impression, it is? That shoe could have made that impression.
KENNETH ZERCIE: That shoe or any other pattern similar to that could have made it.
MR. HARPOOTLIAN: Okay. Thank you. No further questions.
JUDGE NEWMAN: Mr. Meadors.
RECROSS-EXAMINATION
BY MR. MEADORS:
MR. MEADORS: Did you do a second PowerPoint that said that mark on Maggie was consistent with a shoe? Did you do another PowerPoint?
KENNETH ZERCIE: I've done several.
MR. MEADORS: You've done several?
KENNETH ZERCIE: Yes, sir.
MR. MEADORS: Where is the other one?
KENNETH ZERCIE: They chose not to use them.
MR. MEADORS: They chose not to use them.
MR. MEADORS: That's all. Thank you.
JUDGE NEWMAN: You may step down.
(The witness exited the stand.)
JUDGE NEWMAN: We'll take a little break. If you'll go to the jury room. Please do not discuss the case.
(The jury left the courtroom.)
MR. HARPOOTLIAN: Your Honor, I failed to put the PowerPoint, Exhibit Number 145, into evidence. Mr. Meadors --
MR. MEADORS: Graciously.
MR. HARPOOTLIAN: -- graciously has agreed to allow me to put it in at this point. Thank you, thank you, thank you.
MR. MEADORS: No objection.
MR. HARPOOTLIAN: Offered 145 into --
JUDGE NEWMAN: It's admitted without objection.
(POWERPOINT MARKED AS DEFENDANT'S EXHIBIT NUMBER 145 WAS RECEIVED INTO EVIDENCE.)
(A break was taken.)
JUDGE NEWMAN: Are we ready for the jury?
MR. HARPOOTLIAN: Yes, sir.
JUDGE NEWMAN: Bring them in.
(The jury returned to the courtroom.)
COURT BAILIFF: The jury is present, sir.