I asked a few more questions, which revealed that Dr. Arslanian currently worked as a teacher and researcher at John Jay. I covered her history and limited availability as an expert witness and finally brought her testimony to her study of the gunshot residue found on Walter Elliot’s body and clothing on the day of the murders in Malibu. She testified that she reviewed the procedures and results of the sheriff’s lab and conducted her own evaluations and modeling. She said she also reviewed all videotapes submitted to her by the defense in conjunction with her studies.
“Now, Dr. Arslanian, the state’s forensic witness testified earlier in this trial that the tabs wiped on Mr. Elliot’s hands and sleeves and jacket tested positive for elevated levels of certain elements associated with gunshot residue. Do you agree with that conclusion?”
“Yes, I do,” my witness said.
A low vibration of surprise rolled through the room.
“You are saying that your studies concluded that the defendant had gunshot residue on his hands and clothes?”
“That is correct. Elevated levels of barium, antimony and lead. In combination, these are indications of gunshot residue.”
“What does ‘elevated levels’ mean?”
“It just means that some of these materials you would find on a person’s body whether they had fired or handled a weapon or not. Just from everyday life.”
“So it is elevated levels of all three materials that are required for a positive result in gunshot residue testing, correct?”
“Yes, that and concentration patterns.”
“Can you explain what you mean by ‘concentration patterns’?”
“Sure. When a gun discharges—in this case we think we’re talking about a handgun—there is an explosion in the chamber that gives the bullet its energy and velocity. That explosion sends gases out the barrel with the bullet as well as out any little crack and opening in the gun. The breech—that is, the part at the rear of the gun’s barrel—comes open after a shot has been fired. The escaping gases propel these microscopic elements we’re talking about backward onto the shooter.”
“And that’s what happened in this case, correct?”
“No, not correct. Based on the totality of my investigation I cannot say that.”
I raised my eyebrows in feigned surprise.
“But Doctor, you just said you agreed with the state’s conclusion that there was gunshot residue on the defendant’s hands and sleeves.”
“I do agree with the state’s conclusion that there was GSR on the defendant. But that wasn’t the question you asked.”
I took a moment as if to retrace my question.
“Dr. Arslanian, are you saying that there could be an alternate explanation for the gunshot residue on Mr. Elliot?”
“Yes, I am.”
We were there. We had finally arrived at the crux of the defense’s case. It was time to shoot the magic bullet.
“Did your study of the materials provided to you over the weekend by the defense lead you to an alternate explanation for the gunshot residue on Walter Elliot’s hands and clothing?”
“Yes, they did.”
“And what is that explanation?”
“It is very highly likely, in my opinion, that the residue on Mr. Elliot’s hands and clothes was transferred there.”
“Transferred? Are you suggesting someone intentionally planted GSR on him?”
“No, I am not. I am suggesting that it occurred inadvertently by happenstance or mistake. Gunshot residue is basically microscopic dust. It moves. It can be transferred by contact.”
“What does ‘transferred by contact’ mean?”
“It means the material we are talking about lights on a surface after it is discharged from the firearm. If that surface comes into contact with another, some of the material will transfer. It will rub off, is what’m saying. This is why there are law enforcement protocols for safeguarding against this. The victims and suspects in gun crimes often have their clothes removed for preservation and study. Some agencies put evidence bags over people’s hands to preserve and guard against transference.”
“Can this material be transferred more than once?”
“Yes, it can, with depreciating levels. This is a solid material. It’s not a gas. It doesn’t dissipate like a gas. It is microscopic but solid and it has to be someplace at the end of the day. I have conducted numerous studies of this and found that transference can repeat and repeat.”
“But in the case of repeated transference, wouldn’t the amount of material depreciate with each transfer until negligible?”
“That’s right. Each new surface will hold less than the prior surface. So it’s all a matter of how much you start with. The more you start with, the greater the amount that can be transferred.”
I nodded and took a small break by flipping up pages on my pad as if I were looking for something. I wanted there to be a clear line between the discussion of theory and the specific case at hand.
“Okay, Doctor,” I finally said. “With these theories in mind, can you tell us what happened in the Elliot case?”
“I can tell you and show you,” Dr. Arslanian said. “When Mr. Elliot was handcuffed and placed in the back of the four-alpha patrol car, he was literally placed in a hotbed of gunshot residue. That is where and when the transference took place.”
“How so?”
“His hands, arms and clothing were placed in direct contact with gunshot residue from another case. Transfer to him would have been inevitable.”
Golantz quickly objected, saying I had not laid the groundwork for such an answer. I told the judge I intended to do that right now and asked permission to set the video equipment up in front of the jury again.
Dr. Arslanian had taken the video shot by my first witness, Julio Muniz, and edited it into one demonstration video. I introduced it as a defense exhibit over Golantz’s failed objection. Using it as a visual aid, I carefully walked my witness through the defense’s theory of transference. It was a demonstration that took nearly an hour and was one of the most thorough presentations of alternate theory I had ever been involved in.
We started with Eli Wyms’s arrest and his placement in the backseat of the alpha car. We then cut to Elliot being placed in the same patrol car less than ten hours later. The same car and the same seat. Both men’s hands cuffed behind their backs. She was stunningly authoritative in her conclusion.
“A man who had fired weapons at least ninety-four times was placed in that seat,” she said. “Ninety-four times! He would have literally been reeking of gunshot residue.”
“And is it your expert opinion that gunshot residue would have transferred from Eli Wyms to that car seat?” I asked.
“Most definitely.”
“And is it your expert opinion that the gunshot residue on that seat could then have been transferred to the next person who sat there?”
“Yes, it is.”
“And is it your expert opinion that this was the origin of the gunshot residue on Walter Elliot’s hands and clothes?”
“Again, with his hands behind his back like that, he came in direct contact with a transfer surface. Yes, in my expert opinion, I do believe that this is how he got the gunshot residue on his hands and clothes.”
I paused again to drive home the expert’s conclusions. If I knew anything about reasonable doubt, I knew I had just embedded it in every juror’s consciousness. Whether they would later vote their conscience was another matter.
Fifty
It was now time to bring in the big prop to drive Dr. Arslanian’s testimony home.
“Doctor, did you draw any other conclusions from your analysis of the GSR evidence that supported the theory of transference you have outlined here?”
“Yes, I did.”
“And what was that?”
“Can I use my mannequin to demonstrate?”
I asked the judge for permission to allow the witness to use a mannequin for demonstration purposes and he
granted it without objection from Golantz. I then stepped through the clerk’s corral to the hallway leading to the judge’s chambers. I had left Dr. Arslanian’s mannequin here until it had been ruled admissible. I wheeled it out to the center of the proving grounds in front of the jury—and the Court TV camera. I signaled to Dr. Arslanian to come down from the witness stand to make her demonstration.
The mannequin was a full-body model with fully manipulating limbs, hands and even fingers. It was made of white plastic and had several smudges of gray on its face and hands from experiments and demonstrations conducted over the years. It was dressed in blue jeans and a dark blue collared shirt beneath a windbreaker with a design on the back commemorating a University of Florida national football championship earlier in the year. The mannequin was suspended two inches off the ground on a metal brace and wheeled platform.
I realized I had forgotten something and went over to my rolling bag. I quickly pulled out the wooden dummy gun and collapsing pointer. I handed them both to Dr. Arslanian and then went back to the lectern.
“Okay, what do we have here, Doctor?”
“This is Manny, my demonstration mannequin. Manny, this is the jury.”
There was a bit of laughter and one juror, the lawyer, even nodded his hello to the dummy.
“Manny’s a Florida Gator fan?”
“Uh, he is today.”
Sometimes the messenger can obscure the message. With some witnesses you want that because their testimony isn’t all that helpful. But that was not the case with Dr. Arslanian. I knew I had been walking a tightrope with her: too cute and entertaining on one side; solid scientific evidence on the other. The proper balance would make her and her information leave the strongest impression on the jury. I knew it was now time to get back to serious testimony.
“Why do we need Manny here, Doctor?”
“Because an analysis of the SEMS tabs collected by the sheriff’s forensic expert can show us why the gunshot residue on Mr. Elliot did not come from his firing of a weapon.”
“I know the state’s expert explained these procedures to us last week but I would like you to refresh us. What is a SEMS tab?”
“The GSR test is conducted with round tabs or disks that have a peel-off sticky side. The tabs are patted on the area to be tested and they collect all the microscopic material on the surface. The tab then goes into a scanning electron microscope, or SEMS, as we call it. Through the microscope, we see or don’t see the three elements we have been talking about here. Barium, antimony and lead.”
“Okay, then, do you have a demonstration for us?”
“Yes, I do.”
“Please explain it to the jury.”
Dr. Arslanian extended her pointer and faced the jury. Her demonstration had been carefully planned and rehearsed, right down to my always referring to her as ‘doctor’ and her always referring to the state’s forensic man as ‘mister.’
“Mr. Guilfoyle, the Sheriff’s Department forensic expert, took eight different samples from Mr. Elliot’s body and clothes. Each tab was coded so that the location it sampled would be known and charted.”
She used the pointer on the mannequin as she discussed the locations of the samples. The mannequin stood with its arms down at its sides.
“Tab A was the top of the right hand. Tab B was the top of the left hand. Tab C was the right sleeve of Mr. Elliot’s windbreaker and D was the left sleeve. Then we have tabs E and F being the right- and left-front panels of the jacket, and G and H being the chest and torso portions of the shirt Mr. Elliot wore beneath the open jacket.”
“Are these the clothes he was wearing that day?”
“No, they are not. These are exact duplicates of what he was wearing, right down to the size and manufacturer.”
“Okay, what did you learn from your analysis of the eight tabs?”
“I’ve prepared a chart for the jurors so they can follow along.”
I presented the chart as a defense exhibit. Golantz had been given a copy of it that morning. He now stood and objected, saying his late receipt of the chart violated the rules of discovery. I told the judge the chart had only been composed the night before after my meetings with Dr. Arslanian on Saturday and Sunday. The judge agreed with the prosecutor, saying that the direction of my examination of the witness was obvious and well prepared and that I therefore should have drawn the chart sooner. The objection was sustained, and Dr. Arslanian now had to wing it on her own. It had been a gamble but I didn’t regret the move. I would rather have my witness talking to the jurors without a net than have had Golantz in possession of my strategy in advance of its implementation.
“Okay, Doctor, you can still refer to your notes and the chart. The jurors just need to follow along. What did you learn from your analysis of the eight SEMS tabs?”
“I learned that the levels of gunshot residue on the different tabs greatly differed.”
“How so?”
“Well, tabs A and B, which came from Mr. Elliot’s hands, were where the highest levels of GSR were found. From there we get a steep drop-off in the GSR levels: tabs C, D, E and F with much lower levels, and no GSR reading at all on tabs G and H.”
Again she used the pointer to illustrate.
“What did that tell you, Doctor?”
“That the GSR on Mr. Elliot’s hands and clothes did not come from firing a weapon.”
“Can you illustrate why?”
“First, comparable readings coming from both hands indicate that the weapon was fired in a two-handed grip.”
She went to the mannequin and raised its arms, forming a V by pulling the hands together out front. She bent the hands and fingers around the wooden gun.
“But a two-handed grip would also have to result in higher levels of GSR on the sleeves of the jacket in particular and the rest of the clothes as well.”
“But the tabs processed by the Sheriff’s Department don’t show that, am I right?”
“You’re right. They show the opposite. While a drop-off from the readings on the hands is expected, it is not expected to be of this rate.”
“So in your expert opinion, what does it mean?”
“A compound-transfer exposure. The first exposure occurred when he was placed with his hands and arms behind his back in the four-alpha car. After that, the material was on his hands and arms, and some of it was then transferred for a second time onto the front panels of his jacket during normal hand and arm movement. This would have occurred continuously until the clothing was collected from him.”
“What about the zero reading on the tabs from the shirt beneath the jacket?”
“We discount that because the jacket could have been zipped closed during the commission of the shooting.”
“In your expert opinion, Doctor, is there any way that Mr. Elliot could have gotten this pattern of GSR on his hands and clothing by discharging a firearm?”
“No, there is not.”
“Thank you, Doctor Arslanian. No further questions.”
I returned to my seat and leaned over to whisper into Walter Elliot’s ear.
“If we didn’t just give them reasonable doubt, then I don’t know what it is.”
Elliot nodded and whispered back to me.
“The best ten thousand dollars I’ve ever spent.”
I didn’t think I had done so badly myself but I let it go. Golantz asked the judge for the midafternoon break before cross-examination of the witness began and the judge agreed. I noticed what I believed to be a higher energy in the verbal buzz of the courtroom after the adjournment. Shami Arslanian had definitely given the defense momentum.
In fifteen minutes I would see what Golantz had in his arsenal for impeaching my witness’s credibility and testimony but I couldn’t imagine he had much. If he had something, he wouldn’t have asked for the break. He would have gotten up and charged right after her.
After the jury and the judge had vacated the courtroom and the observers were pushing out into the hallway,
I sauntered over to the prosecutor’s table. Golantz was writing out questions on a legal pad. He didn’t look up at me.
“What?” he said.
“The answer’s no.”
“To what question?”
“The one you were going to ask about my client taking a plea agreement. We’re not interested.”
Golantz smirked.
“You’re funny, Haller. So what, you’ve got an impressive witness. The trial’s a long way from over.”
“And I’ve got a French police captain who’s going to testify tomorrow that Rilz ratted out seven of the most dangerous, vindictive men he’s ever investigated. Two of them happened to get out of prison last year and they disappeared. Nobody knows where they are. Maybe they were in Malibu last spring.”
Golantz put his pen down and finally looked up at me.
“Yeah, I talked to your Inspector Clouseau yesterday. It’s pretty clear he’s saying whatever you want him to say, as long as you fly him first class. At the end of the depo, he pulled out one of those star maps and asked me if I could show him where Angelina Jolie lives. He’s one serious witness you came up with.”
I had told Captain Pepin to cool it with the star map stuff. He apparently hadn’t listened. I needed to change the subject.
“So, where are the Germans?” I asked.
Golantz checked behind him as if to make sure Johan Rilz’s family members weren’t there.
“I told them that they had to be prepared for your strategy of building a defense by shitting all over the memory of their son and brother,” he said. “I told them you were going to take Johan’s problems in France five years ago and use them to try to get his killer off. I told them that you were going to depict him as a German gigolo who seduced rich clients, men and women, all over Malibu and the west side. You know what the father said to me?”
“No, but you’ll tell me.”
“He said that they’d had enough of American justice and were going back home.”
The Lincoln Lawyer Collection Page 73
