Testimony Notes – 5 March 2007

Testimony from FBI’s Marc LeBeau was the purpose of today’s motion hearing. Judge Patrick Willis heard testimony and arguments on whether this testimony could be heard by the jury.

Special Prosecutor Norm Gahn methodically questioned Lebeau to establish his credentials for testimony. Gahn is one of the three special prosecutors here which demonstrates the desire of the State Department of Justice to obtain a conviction.

During this testimony, I developed the notion that Avery’s case might be over. This was the dog and pony show part of his testimony. He testified that there was no edta in the swabs from the Halbach vehicle said to contain Avery’s blood, but the vial blood did contain etda. However, he stated first that no edta was found in the Avery evidence blood, prompting the judge to question his statements. Gahn then retraced the questioning.

Jerome Buting’s cross examination showed a different side. The spectre of the O.J. Simpson trial rose to address the abilities of the FBI lab.

LeBeau intimated that the FBI did not generally engage in original research. He testified that the mission of the FBI was to support the criminal justice system, not defendants. He also testified that no agency had requested an edta test since the Simpson trial, so there was no need to pursue that kind of research.

He neglected to state that there was an internal audit after the poor performance of the FBI in that rather high-profile trial. The rushed nature of tests performed by the FBI was a major issue in that trial. After the Simpson trial, the opportunity was present for the FBI laboratory to perform proper scientific tests and put the methods and results out for peer review.

In this present case, the tests were again rushed and the peer review was conducted internally. This is a recipe for confirmation bias. LeBeau defended his methodology and procedure on the basis that he was the lab chief. In his opinion, his imprimatur was sufficient to pass as peer review.

Lebeau claimed that the Simpson case did not require a formal protocol; lab notes were sufficient. But, the internal FBI report on this case states that the FBI witness, Roger Matrz did not keep good notes. This indicates that notes are not a good protocol.

As the day continued, LeBeau became more evasive and engaged in switching. Judge Willis told the witness to answer questions rather than extemporize.

One point of interest is that the defense requested all protocols used in edta testing. But, the FBI refused to supply the Simpson protocols and other information.
LeBeau was also questioned about his role in the wrongful conviction of William Sybers in Florida. LeBeau claimed that things were better now.

In the end, the decision was for Judge Willis to make. The Wisconsin Legislature has a Luddite approach to scientific testimony which constrains how a judge approaches admissibility of expert testimony.

His decision was to admit the testimony although the reliability of edta is questionable, the legislature has removed that factor from his consideration.

He felt the witness had probative value although in an earlier ruling he stated than in regard to edta testing has “provided more confusion than conclusions.”

So, the testimony is in.