Objections to DeVore

[jane]

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
63
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.

[jane]

Although most of us would like to see Devore pay for his dishonesty, his miscalculations may never be brought up in the appeals for this reason:

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.

****
It was the media reports that gave the impression that Dr. DeVore said December 23 was the absolute date of death. That's what he was trying to do, but Geragos brought out the point that DeVore's dates were just estimates, not facts, and Devore had to admit that they were estimates.

That's the difference between the Devore assertion and those of Cheng and Eloise Anderson. Devore produced estimates. Cheng and Anderson claimed to produce absolutes, Cheng placing Conner in the bay in the area where Scott went fishing, Anderson placing Laci at the Berkeley Marina.

[jane]

http://www.fetal.com/Inthenews/peterson.html

Video clips from Greta van Susteren, Court TV, GMA, Dan Abrams, CNN about the testimony of Dr. DeVore.

[marlene]

I don't see the distinction, Jane -- Cheng said his theory was full of uncertainties. And Devore as all that the public needed to totally reject March, and that Laci "could have" died on Dec 23/24 was all they needed to repress any doubts about Conner's age.

I hope that the reason Devore wasn't included in the direct appeal brief is because it's a stronger argument in the habeas. However, there is a rule that no issue can be dealt with in a habeas appeal until it has been resolved by the direct appeal -- unless it has nothing to do with the direct appeal. So, I doubt that if Devore is in the habeas, there is any mention of his scientific method being not up to the standards of Kelley-Frye. And I think that's a mistake. These experts can't keep getting passes when they use substandard scientific methods. It's not just about Scott . . .

[jane]

I don't see the distinction, Jane -- Cheng said his theory was full of uncertainties. And Devore as all that the public needed to totally reject March, and that Laci "could have" died on Dec 23/24 was all they needed to repress any doubts about Conner's age.

I hope that the reason Devore wasn't included in the direct appeal brief is because it's a stronger argument in the habeas. However, there is a rule that no issue can be dealt with in a habeas appeal until it has been resolved by the direct appeal -- unless it has nothing to do with the direct appeal. So, I doubt that if Devore is in the habeas, there is any mention of his scientific method being not up to the standards of Kelley-Frye. And I think that's a mistake. These experts can't keep getting passes when they use substandard scientific methods. It's not just about Scott . . .

I agree, Marlene; and I hope that's the reason it wasn't included.

Does anyone have access to a clear explanation of the issues that can be addressed in the habeas appeal, and their relationship to the issues raised in the direct appeal? I keep looking for this and find bits and pieces in various documents. Here's part of one:

http://www.fdap.org/downloads/tools/sta ... h_2004.pdf
>>>>>>>>>>>>>>>
2. Dixon, Waltreus & Harris--Claims Which Were or Could Have Been
Raised on Appeal
The Supreme Court has often said that "`[habeas corpus will not serve as a second appeal.'
[Citations]" (In re Harris (1993) 5 Cal.4th 813, 825.) First, a reviewing court ordinarily will not
consider, on habeas corpus, a claim which was raised and rejected on direct appeal (the "Waltreus
rule"6). (Harris, supra, at pp. 824-829.) Neither will it consider a habeas claim which could have
been but was not raised on direct appeal (the "Dixon rule"7). (Id. at pp. 825 n. 3, 829.)
Robbins adds an important qualification to the Dixon and Waltreus rules. Because habeas
corpus is the preferred vehicle for consideration of IAC claims, “We do not apply those bars [Dixon
& Waltreus[ to claims of ineffective assitance of trial counsel, even if the habeas corpus claim is
based solely upon the appellate record. [Citation.]” (In re Robbins (1998) 18 Cal.4th 770, 814 fn.
34.)
Like Clark, the Harris opinion also identifies the exceptions to these procedural bars: (a) a
constitutional error which "is both clear and fundamental and strikes at the heart of the trial process"
(id. at p. 834 [emphasis added]);8 (b) "a true lack of fundamental jurisdiction" (i.e., subject matter
jurisdiction) (Harris, supra, 5 Cal.4th at pp. 836-838); (c) acts "in excess of jurisdiction;" and (d) claims affected by a change in the law (e.g., an intervening U.S. or California Supreme Court
decision establishing a new rule).9
The "in excess of jurisdiction" exception deserves special note. Imposition of an
unauthorized sentence is an act in excess of jurisdiction. (Id. at p. 839.) Just as the Attorney General
(or the appellate court itself) may raise an "unauthorized sentence" issue in the context of a defense
appeal, despite the prosecution's failure to notice an appeal, a defendant's "unauthorized sentence"
claim is cognizable on habeas corpus even where it could have been raised on appeal.10 However,
the "excess of jurisdiction" exception to the Waltreus and Dixon rules applies only to purely legal
claims which do not require any "redetermination of the facts underlying the claim." (Id. at pp. 840-841.)

II. ISSUES COGNIZABLE ON STATE HABEAS CORPUS--COMMON CLAIMS
Appellate counsel most commonly utilize habeas petitions where a claim rests in part on facts
"outside the record" of the direct appeal or where direct appellate review is unavailable for some
other reason (such as a defaulted appeal). Just as with federal habeas practice, Fourth Amendment
claims are not cognizable on state habeas corpus. (Clark, supra, 5 Cal.4th at p. 767, citing In re
Sterling (1965) 63 Cal.2d 486.)11 With that exception, virtually any other claim may be raised via
a habeas petition (subject, of course, to the procedural limitations discussed in Part I-B, supra.)
Unlike federal habeas corpus review, state habeas review is not limited to federal constitutional
violations, but also includes state law claims. (Notably, some of the state law bases for habeas relief
do not involve any error or misconduct on the part of any of the participants in the trial. such as
newly discovered evidence or the new statutory provision on “Battered Women’s Syndrome” (Pen.
Code § 1473.5; see Part VII-B). ) Counsel should consider the possibility of a writ petition, not only
where a claim rests entirely on matters outside the record, but also in situations where an additional
factual showing can provide further support for an argument being raised on direct appeal (e.g., to
establish prejudice from Boykin-Tahl error or other defects in plea advisements). The following list
notes some of the most common uses of habeas corpus petitions in conjunction with criminal
appeals; the list is by no means exhaustive:
--Ineffective assistance of trial counsel (e.g., In re Sixto (1989) 48 Cal.3d 1247.)
--Counsel's conflict of interest (e.g., In re Hochberg (1970) 2 Cal.3d 870).
--Ineffective assistance of appellate counsel (e.g., In re Smith (1970) 3 Cal.3d 192 [failure
to raise crucial potentially meritorious issues on appeal]).
--Reinstatement of a late or otherwise defaulted appeal (e.g., In re Serrano (1995) 10 Cal.4th
447; In re Jordan (1992) 4 Cal.4th 116; In re Vallery (1992) 3 Cal.App.4th 1125).
--Prosecutorial suppression of exculpatory evidence ("Brady error") or presentation of
testimony which the prosecutor knows or should know is false or misleading ("Agurs error") (e.g.,
In re Sassounian (1995) 9 Cal.4th 535; In re Jackson (1992) 3 Cal.4th 578).
--Prosecutorial presentation of false evidence (Pen. Code, § 1473; e.g., In re Hall (1981) 30
Cal.3d 408, 424; see also Sassounian, supra, 9 Cal.4th at p. 546).12
--Prosecutorial intimidation of defense witness (e.g., In re Martin (1987) 44 Cal.3d 1).
--Vindictive or discriminatory prosecution (e.g., In re Bower (1985) 38 Cal.3d 865).
--Newly discovered evidence (e.g., Hall, supra, 30 Cal.3d at p. 417).13
--Juror misconduct (e.g., In re Hitchings (1993) 6 Cal.4th 97).
--Statute of limitations (e.g., In re Demillo (1975) 14 Cal.3d 598).
--Boykin-Tahl error or other defects in the advisements and waivers attending a plea or
admission (e.g., In re Moser (1993) 6 Cal.4th 342).
--Claims that the prior convictions fail to satisfy the enhancement statute (e.g., In re Harris
(1989) 49 Cal.3d 131 [erroneous imposition of two enhancements (under Pen. Code, § 667(a)) where
the prior cases were not brought and tried separately]). --Custody credits issues (e.g., In re Joyner (1989) 48 Cal.3d 487).
--Appellate review of a denial of bail (either pre-trial bail or bail pending appeal) (e.g., In re
Pipinos (1982) 33 Cal.3d 189).
–Sentencing judge’s mistaken belief that he or she lacked discretion regarding imposition of
a “strike” or other enhancement (in “silent record” cases where that mistake is not evident from the
sentencing transcript) (People v. Fuhrman (1997) 16 Cal.4th 930, 945-946)
-------------------------------------------
12 Note that a statutory "false evidence" claim requires neither proof that the falsity amounted to
perjury nor any showing that the prosecutor knew or should have known of the falsity. (Pen. Code,
§ 1473(c); Hall, supra, at p. 424.)
13 A habeas claim of "newly discovered evidence" faces a more daunting standard than a similar
claim in a new trial motion. On habeas, the new evidence must "undermine[] the entire prosecution
case" (Hall, supra, at p. 417; Clark, supra, 5 Cal.4th at p. 766)--that is, it must "cast[] fundamental
doubt on the accuracy and reliability of the proceedings" (People v. Gonzalez (1990) 51 Cal.3d 1179,
1246).

[jane]

December 17, 2004: Greta van Susteren interviews Dr. Devore and notes that he puts Conner's date of death as December 23. She says that Dr. March said that Conner was a full term baby. Dr. March most certainly did not say that. In his opening statement Geragos repeatedly said that Conner was born alive; but he did not say that in his Closing Argument. Dr. DeVore essentially calls Dr. March a liar---so much for the professional code of courtesy. And what excuse does Greta have for misstating these facts in December 2004. Wasn't she paying any attention at all?
http://www.fetal.com/Inthenews/m_gretta.html
**********
This is what Geragos said in his closing argument. This is not hard to understand, except for people who are guilt biased.

GERAGOS: Thanks, Judge. Raffi, could you put up slide three?

One of the other areas that we talked about was the -- yesterday was this idea of Laci being pregnant on June 9th. And the suggestion was that that was something that was just made up, that somehow the Doctor March had just found that in one of the -- Rene Tomlinson's testimony, or something like that. I believe that if you take a look at all of the testimony that we have got, that that specifically is buttressed in at least five areas.

Raffi, do you have the first one? Do you have it handy?

Because otherwise I can just talk it.

Question. Baby shower June 9th is the day that specifically there was a phone call that was made.

Jackie Peterson said she gets a phone call first thing in the morning, something like 7:00 o'clock in the morning. Sharon Rocha tells Grogan that on June 9th, that's when they find out, that they get this that she is pregnant.

Martin, she was the woman at the doctor's office that indicates when she came in on July 11th she had already done the home pregnancy test and specifically said that you are not allowed to make a appointment unless you have -- you had a home pregnancy test.

Endraki, who was the doctor, said if you have any notation, you would be able to get more precise if you knew they were doing an early pregnancy test or early pregnancy test.

Specifically when they get Doctor DeVore up there, you will remember Doctor DeVore had this idea that if you take these three measurements, he could predict exact date of death. Well, two out of three of those measurements were demonstrably wrong. December 21st, December 22nd, and then the third one was December 24th. Gives new meanings to two wrongs make a right.

December 21st and 22nd were not right. He averages out the three, and he says that if you average the 21st, 22nd, and 24th, you get the 23rd. Well, specifically you can't do that. Everything has got to have a range. If, in fact, you remember the opening by Mr. Distaso, he said that Doctor DeVore was going to come in and tell you that there was a range.

Endraki made that. Tomlinson, she said she told you on June 9th she was pregnant, correct? Jackie says, you remember the date you found out. She called you that morning. She woke you up, told you she had taken a test, determined she was pregnant.

And then Grogan said that the first line of the note space on June 9th of 02, Laci Peterson calls around 7:00 a.m. to announce she was pregnant. And based on your investigation in this case, it's not contradicted anywhere else that June 9th in the morning is when family and friends out Laci was pregnant.

Now, why does that matter? It matters for the simple fact that if March is telling you that, based upon the age of the child, that June 9th, and you work backwards the four days, that is the time specifically when she got pregnant, would have been 14 days prior. And that this baby lived, to the earliest, would have been December 28th.

We had the previous testimony that I showed you this morning about the ovulation test from Rose Rocha that she was doing an ovulation test.

She specifically was having -- or arranging so that Scott would come on specific times so that she could get pregnant. If that's the case, when DeVore says -- and remember what DeVore's testimony was.

He was assuming that conception was two weeks after the last menstrual period. Last menstrual period May 6th, two weeks after would have been the 20th. If you adjust that in either way, that adjusts the date. Does that matter? It matters to -- in the sense that you can't just pick a date like he did.

Mr. Distaso, in his opening statement, told you that you just can't pick a date. He comes in here in court and all of a sudden he just picks a date. He picks a date based on three averages. The date is December 23rd.

We have already shown you, I think beyond a reasonable doubt, that Laci was alive on December 24th. If you show that the first time that she took a pregnancy test was the 9th, and 14 days prior to that is when she conceived, that means that baby lived, and Laci lived, at least until the 28th or the 29th of December.
**************************
And Grogan confirmed this in his trial testimony for the defense:

GERAGOS: Good morning, detective. The first thing I want to ask you, you had some notes that Sharon Rocha had given about Laci Peterson, is that correct?

GROGAN: Yes.

GERAGOS: The very first line of the notes states that on June 9th of '02 Laci called at around 7:00 a.m. to announce that she was pregnant, is that correct?

GROGAN: That's correct.

GERAGOS: Okay. And based on your investigation in this case that's not contradicted anywhere else that June 9th in the morning is when the family and friends found out that Laci was pregnant, correct?

GROGAN: I don't think so, no, sir.

GERAGOS: Okay. So there's nothing that you know of that suggests any other date, correct?

GROGAN: That the family was first notified, not that I know of, no, sir.