This is the only mention of DeVore in the appellate brief (p.62-63). Can the question of the untested technique DeVore used to estimate Conner's age at the time he died be raised in the habeas appeal? What if Phillipe Jeanty personally refuted DeVore's method?
In an effort to support its theory that Laci was killed on December 23 -- and thus
Scott was the only possible killer -- the state presented testimony from Greggory Devore a
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doctor who specialized in high risk obstetrics and maternal-fetal medicine. (95 RT
17855.) Dr. Devore was contacted by the Modesto Police and asked to review the
Conner’s fetal records to determine his age at death. (95 RT 17861.) Dr. Devore
reviewed two ultrasound examinations and Conner’s femur bone. (95 RT 17861, 17868.)
Using “an equation by [Phillipe] Jeanty.” an expert in fetal biometry, Dr. Devore
estimated that Conner died on December 23, 2002. (95 RT 17881, 17883.) Dr. Devore
admitted that this was an estimation and Conner may have died a day or two before or
after this date. (95 RT 17887.) Of course, a day or two before the 23rd was impossible
(since Laci had been seen by her sister on December 23) and a day or two after meant that
Scott was not the killer.
Geragos initially objected to DeVore in the preliminary hearing (Feb 18, 2004) but was overruled by Delucchi :
Mark Geragos: I received yesterday some more discovery. There has been about two batches of it come in, and now an additional witness list. One of the witnesses that's identified on the witness list, there is a CV contained in the discovery, and it's for a Doctor Devore who is from Pasadena, who's got a specialty in, he's an obstetrician, but he has even a more defined specialty than that, that I can't even pronounce. The problem is that I believe that under 1054, that's not appropriate for them at this point to notice another expert when technically I believe we're in trial. And I don't think that, this is not somebody who was known to me. This is not a percipient person. This is not somebody who I believe had anything to do with the autopsy, the examinations of the remains, or anything else. I don't even have a statement as to what this person's proposed testimony is. But I don't even want that. I believe this person is inappropriately named as a witness If he is a witness, I'm assuming that's why he's on the witness list.
Judge Delucchi: I would assume so.
Mark Geragos: We have his CV. I'm moving under 1054 to exclude this person. I will say that, in addition to that, there is voluminous discovery that is coming through there, including an FBI report, including all kinds of DOJ material. I went to the Department of Justice material last night. I was up quite late going through the 809 hundred pieces Mr. Distaso mentioned that is nothing but exculpatory Brady material. And they have been sitting on that for months, and I should have had that. Literally going down the laundry list, there are items taken out of the boat that turned out to not be blood. There are items taken out, a string turns out to exclude my client; hair that excludes my client. A voluminous amount of material that they have gone through. Negative on virtually every forensic test that they did. And I'm telling you, there are every conceivable thing you can think of in there. They have had it tested, and all of it is a dry hole. And I'm just getting this what one week, two weeks outside of jury selection. And my guess is, I don't know, but I would guess that there is still other stuff that they have got that I'm not getting. Now, I said this I think three times to you, that their position is, as soon as they get it, they give it to me.I will cite the Court two cases the U.S. Supreme Court case, Kyles versus Whitley, which was Judge Suter's opinion about imputing to the prosecution their agencies. And we have a California equivalent, which is In Re Brown, which is Justice Brown's opinion, which does the same thing. Case out of Orange County which imputes to the prosecution that they have got their responsibility for their agencies. Specifically in the Orange County, case In Re Brown, murder conviction was reversed where the prosecutors kind of laid it out and said the Coroner had it, he didn't have it. Well, this is, these are all items that their police department, the investigators have, or have had, have turned over to DOJ, are getting it back. I'm getting piecemeal. I want to get some of these investigating officers, I want all of the discovery. I'm not going to play this game any more.
Judge Delucchi: You should have it by I know. Going to be going to trial in couple weeks now. We start selecting a jury, we should have that stuff. What about that, Mr. Distaso?
Rick Distaso: Mr. Harris will –
Judge Delucchi: Mr. Harris, you are going to address that issue?
David Harris: Some of the discovery that Mr. Geragos is getting, so the Court doesn't have this impression that it's just large amounts of stuff, is a repeat of discovery that was provided to them several weeks ago, that somehow, whatever happened, was misplaced, and so we had to reduplicate that. The additional stuff that's come in, the 700, 800 pages from the Department of Justice, what we're doing is, we're going through all of the witnesses prior to trial, making sure they are all prepped as we are making sure every witness goes through any notes that they have, anything has been ever asked for by the defense, that they produce anything and everything that they have. So the 700 pages of notes, so to speak, from the Department of Justice is basically a thirty page report about some followup information that the defense provided to us a long time ago. The Department of Justice worked on that information, and this is most of the notes and reports from that particular area. There isn't anything exculpatory in there. There is no connection between that particular work and this particular case. So counsel can make the argument, but there is no connection. As to the perinatologist, Doctor Devore, Doctor Devore came up after the defense raised an issue at the 995 talking about the age of the fetus in this particular case, Conner; so we decided at that point in time, because it seems to be a big issue from the defense, we felt it was appropriate to get an expert. We're within the thirty day window at that point in time. That's when the 995 was brought up. As soon as the doctor was approached, we provided the CV to the defense. The doctor has written a report. We can ask for a report. He's basically an expert to come in and state he's looked at the sonograms, looked at what the measurements from the autopsy here, what they mean. Basically an expert opinion. We have asked them for a report to that effect. I'll provide that to the defense. There is nothing surprising. There is nothing new. This stuff that he previously requested they are aware of. In terms of all this discovery that they claim they are getting at the last minute, these are tests. Basically any time the defense asks for something that we provide to them. It's stuff we're doing. We keep getting requests. When they ask to look at evidence, we make sure that the evidence is examined. We make sure that it's tested. So it's kind of an ongoing process. We have another request from them to look at additional evidence, and I'm sure once they look at that, there might be some other test that comes up, we'll deal with it at that point in time.
Judge Delucchi: What about that, Mr. Geragos?
Mark Geragos: I'm shaking my head, because it's just plain wrong. These aren't items that I gave to them. I'm talking about items that were tested of the boat, my client's boat. All of a sudden now getting reports back saying that these items have been tested, these items are negative for my client, they are negative for Laci Peterson. I'm getting items, hair comparisons. I got pages upon pages of hair comparisons that are very detailed that exclude my client at every single point. I have got tests from the, from Miss Peterson's remains where hairs are taken off of duct tape, which exclude my client, which also identify what those hairs are, and where they speculate where they came from. I have got the presumptive blood test results that are taken out of the boat. They had, as recently as December, somebody had said there was five stains in the boat. They presumptively tested for blood. Then I have got the report now, two months later, that says that those presumptive bloodstains in the boat were negative for human blood. They weren't human blood. All of those things should have been given to me. This idea that the doctor, the perinatal specialist, he called it, raised at the 995. I wasn't given that doctor's name until the last ten days. This wasn't done some in time constraints with the 995. CV is buried at page 37,000, whatever, of the discovery, with no explanation whatsoever, until I get the latest permutation of the witness list, and I am left to play "Where is Waldo", matching up a CV that was buried at 37,000, on a new name on a 400 witness list page. They have report after report after report of investigation that was taking place in December, and FBI reports that were taking place a year ago. They have report of interviews with witnesses that have come from as far back as October that they have just dumped on us, that they haven't given to us before, all of these things. And, specifically, I can list ten different instances of where there are reports of other people who have pointed to other people as having a connection, or having committed this crime. I'm entitled to have that before I get to trial. How am I supposed to try this case when they are giving me reports, and there is an extensive investigation surrounding four people, one of which who claims that somebody has taken responsibility for committing this crime. All of that material now gets dumped on me within the last 30 days, or 25 days, and on a piecemeal basis. I just want the Modesto PD to take whatever investigative reports they have, and I want this court to order them to bring them to some place. I'll meet them at their PD. But I want it by Friday. I want everything by Friday. I don't think a week away from jury selection is too much to ask that all reports that were generated in the year 2003, I mean, God forbid, I get 2004, but why can't I have everything that was generated in 2003 before I go to trial in this case?
>>>>>>>>>>
Judge Delucchi: You ain't going anywhere. So, anyway, let's get this out. With respect to this doctor, they have been put on notice, Mr. Geragos, I'm going to ask them to turn over, you should get a written report from that doctor as to what his testimony is going to be. Make that available to the defense counsel, and CV, and so forth.
Mark Geragos: Because I anticipate that once I get it, and whatever it is that they are trying to do, there is going to be another 402 on this doctor.
Judge Delucchi: Well, there may be. We can't do that. Since you are on notice now, they have this doctor prepared to call him as a witness, you have got his CV, and I'm going to ask the prosecution now to give you some capsulized version, or some recitation of what those facts are that he intends to testify to. You are prepared on this, may want to call an expert of your own. The other issue here about whether or not this other evdence is exonerating or not, Brady material, we have to look at each one of those things. Just because there is some other possibilities doesn't mean that there, maybe putting too fine a point out, if there is anything out there, that Brady material
absolutely, positively has to be turned over to the defense. No question about it.
David Harris: Okay.