Material over Conner's left ear
The material over Conner's left ear was discussed at length in the Preliminary Hearing, during the testimony of Dr. Brian Peterson, with Mark Geragos attempting to establish that the material was electrical tape, not kelp or other vegetative material:
Q. Okay. Now, also on the first picture which we marked -- let me go ahead -- let me make this EE I've marked and FF. Both of those have what appear to be a black substance that's over the left ear that looks like a piece of, to the untrained eye, I suppose, a piece of electrical tape or something, doesn't it?
A. It wasn't tape. I think it was kelp. There's plenty of vegetable material associated with the body, and I believe that was just more vegetable.
Q. You see where the ear is folded over as well? Once the -- whatever that substance was, once it's removed, the ear appears to be folded over.
A. It's the same between the -- well, this is FF.
Q. And then I'll mark this as GG.
A. So the ear hasn't changed position between those two pictures.
Q. That's correct. That's what I'm asking you. It appears that, once whatever that was is removed, that there is a discoloration on the baby's body as well right where it was?
Q. Is that correct?
Q. Looks like almost an adhesive substance that's been left there; is that correct?
A. I wouldn't go quite that far. There's certainly a discoloration there, though.
Q. Okay. And the discoloration goes across the side of the head. Now, it appears -- and this is what I was asking you before. It appears that there is, in these pictures, FF, EE and GG, that it was on a white sheet, towel, whatever you want to refer to it; is that correct?
A. That's correct
Q. Okay. It's a rectangular black object that appears to be adhered to the side of the head; isn't that correct?
A. It's -- whatever that black substance is, it certainly appears adhering to the head.
Q. Okay. Did you save that? Do you know if that was saved?
A. I don't know what happened to that.
~~Preliminary Hearing Testimony, Dr. Brian Peterson~~
The material over Conner's left ear received first mention in the trial by Mark Geragos, in the Opening Statement for the Defense, again attempting to identify it as electrical tape:
Mark Geragos: I think the evidence will show you that this is electrical tape, and I think the evidence will also show you, if you take a look, that the ear has been folded over, and that ear is completely folded over once the tape is removed. The problem that we have is that, unlike the towel that had all of the stuff that was on Laci's remains, this towel here and all of this, with the exception of the twine, have been thrown away and we don't have it. All we have left is the pictures that show that the ear is folded over. The evidence will show that it looks like the tape is on there, and, go to the next one, Raffi. You can see when you enlarge it that the evidence will show the squared off, it's a man made material that's been placed on this baby's ear, and the baby's ear is folded over like that. And that's what the evidence will show you.
~~Opening Statement, Defense~~
The material over the ear was noticed by the officers who surveyed the crime scene on April 13th:
Mark Geragos: Okay. You had noticed when you rolled the baby on that there was an item on the ear; isn't that correct? That you saw in the picture?
Chris Martinez: There is something there, yes.
Mark Geragos: Okay. And that's the way that you found the baby, correct?
Chris Martinez: Yes.
David Harris: And return you to 258A. Do you see some item on the side of the baby's face over his ear?
Jeffrey Soler: Yes.
David Harris: And was that particular item collected?
Jeffrey Soler: No, it was not.
It was also noted by others who observed the autopsy:
Mark Geragos: How about this item right here that's along the baby's ear, do you remember who removed that?
Sandra Jagoda: No, I don't remember.
Mark Geragos: Do you remember what it was?
Sandra Jagoda: No, I don't.
Mark Geragos: As you look at it right now can you tell what it is?
Sandra Jagoda: No, I cannot.
Dr. Peterson, at the trial, concluded that the material was kelp, because of the stain it left.
HARRIS: 258 C, somewhat more of a closeup. That item that you were describing that you thought was kelp, has that been removed in this photograph?
PETERSON: It has. There is still a stain there, and I remember thinking Well, that's pretty neat because iodine can do that, and there's iodine in kelp, so that was my thinking. It shows the ear is kind of flattened because that's, it's not necessarily well-formed cartilage in the ear at that point. Also the overriding of the skull plates. It's probably better to see it here, you can see how the forehead kind of collapses in, again because the brain has liquefied and those plates override.
However, under cross examination, Dr. Peterson admitted that his testimony at the Preliminary Hearing indicates he didn't form an opinion on what the material was at the time of the autopsy:
GERAGOS: Okay. Now, you had also mentioned specifically the, this item that's on the side of the baby's ear, which is 258 A, this item right here?
GERAGOS: Okay. Now, today you said you recognize that as kelp; is that correct?
PETERSON: Well, I said at the time I did the case that's what I thought that it was.
GERAGOS: Well, I believe that I asked you, let me just take a look, at the time, the last time we talked, whether, whether or not you remembered that. Are you telling me today that you do remember that?
PETERSON: Well, I remember in the preliminary hearing we talked about that at least a couple different places, and the first time that it came up I used the word "kelp." Then we talked about it later on, and I'm not sure which occurrence you're talking about.
GERAGOS: Okay. Let me see if I can just find it here. Bear with me here. Okay. Specifically, let me show you page 1511 of the preliminary hearing transcript. And then I'd point you to those lines that are yellow highlighted. Did you have a chance to read that?
PETERSON: I did.
GERAGOS: Okay. I specifically asked you: The one piece of rectangular black substance that was off, that was on the ear, did you actually take that off? Your answer was: I don't remember taking that off. I don't specifically remember that piece of material at all.
GERAGOS: Okay. And then I asked you: Okay, you don't remember it, you don't remember taking it off? You're looking at the pictures here; is that an accurate picture, though, of how the baby looked when you saw the baby on the 14th? You said: I believe it is. I said: But you do not remember taking off what I refer to as the black substance off the ear? And your answer was: No. Is that correct?
GERAGOS: Okay. So as you sat there back in, I don't remember, September or October of last year when we were in Modesto, you had no memory at that point whatsoever of this substance that was on the ear; is that correct?
PETERSON: I sure don't remember doing anything with it, no.
GERAGOS: Okay. But the, as you as you sit here today, is it a fair statement you don't even remember this piece of material that's on the ear at the time you did the autopsy?
PETERSON: I don't really have any independent recollection of the autopsy at all.
GERAGOS: Okay. So when we're speculating, or when you were speculating it was kelp or seaweed, that's exactly what it was? You were speculating; isn't that correct?
When the material was removed from the ear by Dr. Peterson, it left the ear permanently flattened.
GERAGOS: Okay. This is how the baby looked when the baby was brought in before you did anything, correct?
GERAGOS: Okay. Now, I'm going to show you this slide here, which is a composite of two pictures. One with the tape there, and one with the tape off. One, I shouldn't call it the tape. I'll say one with the substance on and one with the substance off. Do you notice that it just so happens that this substance, when it was on, when it was first brought in, somebody must have taken it off, correct?
GERAGOS: Okay. And when it was taken off, it just so happens that the ear is flattened against the side of the head?
PETERSON: It is.
GERAGOS: Okay. And did you note that in any of your observations, you know, we talked about the anatomical, whether, whether there were any anatomical abnormalities. Would that qualify as an anatomical abnormality?
PETERSON: The position of the ear?
GERAGOS: Yes, the position of ear. The fact that the ear, if I see that correctly, the ear is not flat as one normally would expect it. It's actually flattened over against the head; is it not?
PETERSON: Sure. I described in my report that the ear contained an appropriate amount of cartilage; but, again, this is a macerated, soft baby, and that softening is going to produce those kinds of changes. So I would agree with you completely, the ear is not in a normal anatomic position, but then in a baby that's this liquefied, I think that's just fine.
The material that Peterson removed was not preserved, so nothing can now be done to determine exactly what it was.
GERAGOS: Okay. There's no basis, besides that, if I told you that we've had the criminalist on who says that it turns out that they did not save this towel, or any of the debris, that it's just disappeared, we don't have anything with which to discover at this point, do we? To go back and take a look at it and figure it out. You don't have any memory of it; all we've got is this photo, correct?
PETERSON: Well, if that's what you're telling me, I'll believe you. I don't know what happened to that stuff.
GERAGOS: Okay. Normally that's not in the realm of what you would handle, correct? I mean you would, you would take items off of the body when you're doing it. You would, as you said, you cut, as a force of habit, this particular twine or tape. You, if, if you did remove the substance on the ear, you would have removed it and placed it there. From that point it would have been the criminalist's job to have saved that stuff?
PETERSON: That's correct. That would be his call, his material.
Based on the evidence that Conner did not wash ashore, kelp is ruled out as the material over the ear, as Conner would have had no occasion to pick up kelp. Moreover, kelp would not be strong enough to hold the ear so securely, such as to permanently flatten it, whereas tape would be.