Error IX-Expert testimony about bodies in the bay

[jane]

IX. THE TRIAL COURT VIOLATED BOTH STATE AND FEDERAL LAW
BY ADMITTING EXPERT “SCIENTIFIC” EVIDENCE, BASED ON
WHERE CONNER’S BODY WAS FOUND, TO INFER THAT CONNER
WAS PLACED IN THE WATER WHERE MR. PETERSON HAD BEEN
FISHING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 266

Summary from Truth Be Told---
http://www.facebook.com/notes/scott-pet ... 7512041034

To connect these two points, the prosecution relied on the testimony of hydrologist, Dr. Ralph Cheng. Dr. Cheng was a senior research hydrologist with the United States Geological Survey. * Detective Hendee, of the Modesto Police Department, asked Dr. Cheng if -- based on where the bodies had been found and the tides and currents in the bay -- Cheng could direct the police to a spot where there was a high probability that evidence related to the bodies could be found. * Specifically, police were seeking to recover body parts
of the victims or concrete weights they believed were used to anchor the bodies to the floor of the bay. *

Dr. Cheng provided the police with a map which contained a “projected path” that the bodies might have taken to the shore, and he pinpointed an area in the bay for the officers to search. * It was 500-1000 yards southwest of Brooks Island and in the approximate area where Scott said he was fishing on December

24. *

On voir dire (questioning) of his expertise by defense counsel, Dr. Cheng acknowledged that his work had never explored the movement of bodies in water or the bay.

Dr. Cheng was then asked detailed questions about the movements of bodies in water, the precise subject he had admitted his studies did not involve. Dr. Cheng produced a “vector map,” which charted the movement of Conner’s body, hour by hour, in the days prior to April 13. * Dr. Cheng’s map, People’s Exhibit 284, shows the vector diagram and concludes that Conner’s body migrated to Richmond (where it was found) from the high probability area near Brooks Island where Scott said he was fishing on December 24. * Of course, this was the same “high probability” area that police had searched for more than two weeks with dive teams, sonar equipment and the sophisticated REMUS machine without finding anything at all to connect Scott with the crime.

Interestingly, however, Dr. Cheng could not reproduce the same trajectory for Laci’s body. * When asked for an explanation why he could not provide a vector diagram that showed how Laci’s body ended up in Point Isabel, Dr. Cheng confessed that “Well, I’m not – I’m not the expert in that area here. I don’t know how the body is behaving in water.” Dr. Cheng admitted he had no experience at all with how bodies move in water:

“Q: You have never done any study in San Francisco Bay that has

anything to do with bodies or things of that size, correct.?

“A: That is correct.” *
Despite Dr. Cheng’s conceded lack of expertise in this area, the prosecutor told the jury in closing argument that if Dr. Cheng was believed, “then that man's a murderer. It's as simple as that.” *

[jane]

According to the appellate brief, the prosecution did not prove the connection between Scott's fishing route and the location where the bodies were found. IMO, this is a very compelling argument:

See pp 266-296 in the brief for more detail. This is just some of the significant information:

IX. THE TRIAL COURT VIOLATED BOTH STATE AND FEDERAL LAW BY
ADMITTING EXPERT “SCIENTIFIC” EVIDENCE, BASED ON WHERE
CONNER’S BODY WAS FOUND, TO INFER THAT CONNER WAS
PLACED IN THE WATER WHERE MR. PETERSON HAD BEEN FISHING.
>>>>>
The prosecution’s theory was that Mr. Peterson put Laci Peterson into the bay near
where he was fishing. But apart from the erroneously admitted and flawed dog-scent
evidence (see Argument VI, supra), there was no forensic or other evidence connecting
Mr. Peterson’s fishing trip with the bodies of Laci and Conner.
The prosecution bridged this evidentiary chasm with the testimony of Dr. Ralph
Cheng, a hydrologist employed by the United States Geological Survey. Over defense
objection, Dr. Cheng was permitted to testify that, based on the location of where Conner
was found, Conner’s body had been anchored to the bay bottom in an area 500-1000
267
yards southwest of Brooks Island. That was the approximate area in which Mr. Peterson
said he was fishing on December 24. (55 RT 10725-10728.)
The import of this evidence is obvious. It literally “connected the dots” between
Mr. Peterson’s boat and Conner’s body. Echoing the precise refrain he had used with the
dog scent evidence, the prosecutor told the jury that if Dr. Cheng was believed, “then that
man's a murderer. It's as simple as that.” (109 RT 20279-20280.)
>>>>>>>>>>>>
>In short, while the trial court may have been correct that the science of tidal
movement is well established, that is not what Dr. Cheng was testifying about. Instead,
he testified about something new and quite different, i.e., the physics of the movement of
objects in the waters of the bay. Unlike HGN, there was no history of the use of this in
forensics, with or without studies; it was both unproven and new. Dr. Cheng’s testimony
about the movement of bodies in water was thus a novel scientific theory which should
not have been introduced unless the state met the requirements of People v. Kelly.
There was, moreover, a further reason Dr. Cheng’s testimony could not meet the
Kelly test. The second prong of Kelly requires that, “[i]n addition to general acceptance,
the proponent must also establish that the witness testifying as to general acceptance is
“properly qualified as an expert to give [such] an opinion.” (People v. Stoll, supra, 49
Cal.3d at p. 1155.) By his own admission in court, Dr. Cheng’s expertise did not extend
to the physics of the movement of large objects in bodies of water -- to what kinds of
objects, and what weights, will be moved by currents in the bay, and how far. (See 100
RT 18865; 101 RT 18926-18938 ) Quite to the contrary, Dr. Cheng candidly admitted,
“Well, I’m not – I’m not the expert in that area here. I don’t know how the body is
behaving in water.” (101 RT 18925.) The prosecution thus established neither that such
a body of scientific information regarding the physics of the movement of large bodies in the water exists, nor that Cheng was capable of using it to form an opinion even if it did.
The admission of Dr. Cheng’s testimony violated state law.
>>>>>>>>>
Dr. Cheng continued that while he knew precisely where the body landed, “we
didn’t know when the body precisely landed at that location. Therefore, in order to
reconstruct where the body started moving from, certain position in the bay, still involves
some uncertainty.” (Id., emphasis added.)
With all due respect, the phrase, “some uncertainty,” is something of an
understatement. Even if Dr. Cheng was entirely correct about how fast the body was
moving in the water, without knowing both when the body started moving, and when it
stopped (that is, when it landed), it is impossible to determine where it originated from by
relying on how fast the body was moving.
Here, Dr. Cheng hypothesized that the body was freed of restraints on the sea floor
during a storm that occurred on April 11th through April 12th. (101 RT 18896-18899,
18912.) But Dr. Cheng testified that the storm lasted for 18 hours. (101 RT 18896.)
Under Dr. Cheng’s own hypothesis, the bodies could have begun moving at the beginning
of the storm or at the end of the storm. Because there was enormous uncertainty as to
when the bodies began to travel, it was impossible for Dr. Cheng to conclude how far
they traveled before they made landfall.
>>>>>>>>>
But even putting aside questions as to Cheng’s thesis for when the bodies began to
move, there is equal uncertainty as to when the bodies stopped moving. Conner’s body
was found at around 4:30 p.m. on April 13, 2004. (61 RT 11905.)48 But that does not
mean that is when the body actually landed on the beach. If the body arrived on shore 24
hours before being found on April 13th, it would have been traveling for a significantly
shorter prior of time than Dr. Cheng assumed, and would necessarily have traveled a
much shorter distance than Dr. Cheng concluded. On the other hand, if the body arrived
on the shore at or near 4:30 p.m. on April 13th, it would have been in the water (and
traveling) a much longer time, and would necessarily have originated from a point much
farther away. In that scenario, the body would also have been subject to different winds
and currents over the extended time it was traveling, and thus the direction from which it
came would have been different. In either scenario, the body would not have originated
from the area where Mr. Peterson had been fishing: it could have come from an area
much farther away than Brooks Island, or from an area very close to the shore on which
the body was found.
>>>>>>
In short, the reliability of Dr. Cheng’s testimony regarding Conner’s body thus
depended on two variables for which there was no proof whatsoever: the time the body
began moving in the water, and the time it stopped. It also depended on another variable
about which Dr. Cheng really knew nothing: the distance and direction in which the
currents might carry an object such as Conner’s body.
The matter was even more unreliable as to the trajectory of Laci’s body. Indeed,
the number and degree of variables regarding her body were so extreme that Dr. Cheng
himself admitted he could not draw any reliable conclusion with respect to her trajectory: In the end, even Dr. Cheng admitted that, because he was forced to make assumptions
regarding timing (assumptions he did not have the expertise to make), his conclusions
featured “large uncertainties.” (101 RT 18931.)
Faced with similar uncertainties and uncontrolled variables underlying scientific
testimony, courts have not hesitated to rule such testimony inadmissible under People v.
Kelly.>>>>>>>>>>
In precisely the same way, Dr. Cheng’s analysis was fraught with uncertainty from
the large number of uncontrolled variables. For this reason alone, the prosecution failed
to carry its burden of proving that Dr. Cheng’s testimony followed any generally accepted
scientific procedure. Dr. Cheng made unfounded assumptions about when the body
started moving. He made unfounded assumptions about when the body stopped moving
by arriving on shore. As a result, Dr. Cheng did not take into account what other wind
and current variables would have come into play if his timing assumptions were wrong.
That is, if he was wrong about how long the body was in the water, he could not
accurately predict how far the body would travel or the direction it would come from,
since the winds and currents (which are important under Cheng’s thesis for determiningdirection) change the more time the body is in the water. Further, because Dr. Cheng
admitted that he was not an expert at all in the movement of bodies in water (101 RT
18925-18926), he could not factor into his analysis how the shape and size of a body
would impact his conclusions. The failure of Dr. Cheng’s model to account for the
variable of the shape and size of the body moving through the water is fatal to any
conclusion he might reach as to the movement of the bodies in the bay.
>>>>>>>>

[Kyle]

"The failure of Dr. Cheng’s model to account for the
variable of the shape and size of the body moving through the water is fatal to any
conclusion he might reach as to the movement of the bodies in the bay."

Indeed. And, the FACT that the baby's body was found ABOVE the debris line must be evaluated in any movement. Or, in other words, how did that happen?

[marlene]

Kyle, there are so many things Cheng didn't take into account -- such as the size of the rock breakwater and what water level was necessary to breach it and land 24 feet inland.

[LACurry]

This is my husband's favorite issue and I believe, he is convinced more of this argument than all the rest...even though he believes many of the rest are good too. But, as he stated, the fact that Cheng admitted that he could not form a trajectory for Laci, shows, in itself, that his testimony isn't scientific, let alone expert testimony. Heck, Cheng admits he isn't an expert. Why he was allowed to continue is beyond me.
Also, my husband remarked that if the appellate judges believe everything regarding this issue as written in the appeal, they will have to reverse due to the instruction given to the jury, as written in the appeal.
Also, to say that if you believe this evidence to be true, then Peterson is a murderer is insane.....really. That is MY opinion.

[marlene]

I think there was some deliberate manipulation of the truth with Cheng. He said he could not develop a trajectory for Laci, but I always took that to mean that would trace back to where Scott was fishing. One mistake by Geragos was to ask, where did Laci's trajectory trace back to? He should have made Cheng expose where Laci, according to the same scientific method, would have traced back to.

The other thing that Geragos did not do, that he definitely should have done, was to go over Cheng's trajectory for Conner step by step, each mark along the trajectory is given a time. And of course, Geragos should have known like the back of his hand what the times for the higher high tide was and he should have had photos of the Conner site. He could have done so much to show Cheng's whole theory was wrong, just plain wrong. But he didn't do any of that. Hopefully, the 2nd trial attorney will!!!

[LACurry]

I think there was some deliberate manipulation of the truth with Cheng. He said he could not develop a trajectory for Laci, but I always took that to mean that would trace back to where Scott was fishing. One mistake by Geragos was to ask, where did Laci's trajectory trace back to? He should have made Cheng expose where Laci, according to the same scientific method, would have traced back to.

The other thing that Geragos did not do, that he definitely should have done, was to go over Cheng's trajectory for Conner step by step, each mark along the trajectory is given a time. And of course, Geragos should have known like the back of his hand what the times for the higher high tide was and he should have had photos of the Conner site. He could have done so much to show Cheng's whole theory was wrong, just plain wrong. But he didn't do any of that. Hopefully, the 2nd trial attorney will!!!

I completely agree. Kind of like how my husband stated the point about the boat experiment.....had Geragos taken the time to make technical comparisons on the record, between Scott's boat and the demo boat, the judge might have allowed that experiment in. Simply stating it was the same model wasn't enough.

Anyone have any ideas on what defense lawyer they believe would be a wise choice for the second trial? I have one idea....I respect how much research he puts into a case before trial. I think he is one of the most prepared defense attorneys around..... http://www.mesereauyu.com/attorney-profiles/thomas-a-mesereau-jr

[LACurry]

I think there was some deliberate manipulation of the truth with Cheng. He said he could not develop a trajectory for Laci, but I always took that to mean that would trace back to where Scott was fishing. One mistake by Geragos was to ask, where did Laci's trajectory trace back to? He should have made Cheng expose where Laci, according to the same scientific method, would have traced back to.

The other thing that Geragos did not do, that he definitely should have done, was to go over Cheng's trajectory for Conner step by step, each mark along the trajectory is given a time. And of course, Geragos should have known like the back of his hand what the times for the higher high tide was and he should have had photos of the Conner site. He could have done so much to show Cheng's whole theory was wrong, just plain wrong. But he didn't do any of that. Hopefully, the 2nd trial attorney will!!!

I completely agree. Kind of like how my husband stated the point about the boat experiment.....had Geragos taken the time to make technical comparisons on the record, between Scott's boat and the demo boat, the judge might have allowed that experiment in. Simply stating it was the same model wasn't enough.

Anyone have any ideas on what defense lawyer they believe would be a wise choice for the second trial? I have one idea....I respect how much research he puts into a case before trial. I think he is one of the most prepared defense attorneys around..... http://www.mesereauyu.com/attorney-profiles/thomas-a-mesereau-jr

Interesting article by Mesereau concerning the use of media during trials....I respect his comments. (he also mentions Scott's case although briefly)
http://www.shiftyourlife.com/2011/effectively-handling-high-profile-and-celebrity-cases-by-thomas-a-mesereau-jr/

[marlene]

I watched some of the preliminary hearing for Blake, and Mesereau certainly convinced me the State had no case against Blake.

I 100% disagree with him, though, on whether or not a trial should be televised -- ALWAYS!!!!