Friday, February 27, 2015

This is my eighth post about autopsies following my first, second, third, fourth, fifth, sixth, and seventh posts. As with my last post, this post is more of a table setter for posts on conclusions 3-5. In particular, it is a detailed analysis of everything I know about the supposedly broken windshield wiper lever/selector switch in Hae Min Lee's 1998 Nissan Sentra. My conclusion? There was no broken windshield wiper lever or selector switch. But that's not merely my conclusion. It was the conclusion of Criminalist Daniel Van Gelder. You can read Van Gelder's entire report by clicking here: Download Windshield Wiper Analysis. Here's the relevant portion:

So, what do I know about the windshield wiper lever/selector switch? Here's the best timeline I can piece together:

-February 28, 1999: At approximately 1:30 A.M., Jay gives his first recorded police interview. At approximately 2:10 A.M., just after Detective William Ritz turns the tape over from side A to side B, Jay starts talking about the actual murder. Specifically, Jay says that Adnan told him that Hae kicked at him while he was strangling her in her Sentra, breaking the windshield wiper lever in the process. At approximately 2:45 A.M., Jay leads Detectives Kevin Forrester, Scott Serio, and Gregory MacGillivary to Lee's 1998 Nissan Sentra (page 59). According to Forrester, the windshield wiper lever was "in a downward angle with a hole approximately that size in the side of the steering column." (page 60). A member of the Crime Lab comes to take still photographs of the windshield wiper lever. (page 203). -March 16, 1999: Detectives Forrester, MacGillivary, and Ritz decide that you can't really see that the windshield wiper lever is broken from looking at the still photographs; they just show "that it's hanging down in a downward angle." (page 64). Lee's Sentra is now stored at a body shop, which Forrester believes is owned by Lee's uncle. (page 64). Detective Forrester proceeds with Detective Kirk Hastings to the body shop (page 64). At the body shop, Detective Forrester films while Detective Hastings repeatedly lifts up the windshield wiper lever. (page 65). According to Detective Forrester, whenever Detective Hastings lets go of the lever, "it would fall." (page 66). -April 12, 1999: Detective MacGillivary sends a request, asking that the Trace Analysis Unit perform a "Fracture Examination" on the windshield wiper lever. -April 1999: Criminalist Daniel Van Gelder examines the windshield wiper lever "for the presence of broken edges under stereoscopic examination." -April 29, 1999: Van Gelder writes a "Laboratory Report" (Download Windshield Wiper Analysis) concluding that "[n]o broken edges were found on the windshield wiper lever." -December 10, 1999: At the first trial, Detective Forrester testifies about the windshield wiper lever, and the still photographs and video are admitted as exhibits. Forrester states that the lever is on the right side of the steering column. (pages 58-66). -December 14, 1999: At the first trial, Jay testifies that Adnan told him Lee "kicked off the signal on the driver's side of the car" while he was strangling her (page 198). -January 27, 2000: At the second trial, Detective Forrester testifies about the windshield wiper lever, and the still photographs and video are admitted as exhibits. (pages 200-206). Detective Forrester initially testifies that "the selector switch, if you sat on the driver's seat which would be on the left side of the steering column was broken." (page 203). While the video is being shown, Detective Forrester narrates: "That's Detective Hastings showing the lever which I believe was for the windshield wiper was broken." (page 205). -February 4, 2000: At the second trial, Jay testifies that Adnan told him Lee "kicked off the turn signal in the car" while he was strangling her. (page 142). -February 25, 2000: In her closing argument, Prosecutor Kathleen Murphy states that "[t]he Defendant told Jay Wilds as she struggled as she tried to get away, she kicked the wiper lever. You saw a video showing this wiper lever, how it dangled from the steering column in the car. That was consistent with what Jay Wilds said. In order for Hey Lee to kick this wiper lever, we know she was in that passenger seat." (page 50).

And there you have it. The prosecution had physical evidence corroborating Jay's claim that Adnan strangled Lee in her Sentra. Moreover, the windshield wiper lever being broken seems (only) consistent with someone being in the driver's seat and strangling Lee, who kicked back at her assailant from the passenger seat. Finally, as implausible as it might seem that Lee was in the passenger seat of her own Sentra, it possibly seems even more implausible that Lee would be in the passenger seat with anyone other than Adnan (except possibly her new boyfriend) in the driver's seat. There's just one problem: the windshield wiper lever wasn't broken.

As noted above, Criminalist Daniel Van Gelder examined the windshield wiper lever "for the presence of broken edges under stereoscopic examination." "Stereoscopic examination" means that Van Gelder looked at the lever under a microscope. From the Deposition of Lynda Johnson in Bonn v. L-3 Communications Vertex, LLC, 2010 WL 9479001 (N.D.Fla. 2010):

Q. Okay. Cradle shape, that's a good term. Now, in the next sentence you say that stereoscopic examination, and that's the microscope you were telling us about, right?

A. That's correct. Q. Stereoscopic examination at 50x magnification. Does that mean 50 times what you would see with your naked eye? A. That's correct.

Van Gelder's Laboratory Report doesn't tell us the magnification he used, but you get the idea: If he used 50x magnification, he could see "50 times what you could see with your naked eye." If he used 25x magnification, he could see 25 times what you could see with your naked eye. And what did Van Gelder see? Nothing.

As Van Gelder's Report notes, he did a "Fracture Examination" and was looking for "broken edges." This process is broken down pretty well in the testimony of forensic scientist Clyde Lideick in Commonwealth v. Woosnam, 2001 WL 36043981 (Pa.Com.Pl. 2001):

Q. And what is fracture edge analysis? A. Fracture edge analysis is a type of analysis that we do. When two things break, they leave a broken edge, and we compare those broken edges. We compare the two things that are, that were broken with respect to class characteristics, which are the characteristics that are given to the object by the manufacturer, such as color, thickness, general shape, those kinds of things. We also do analysis for what are called accidental characteristics, which are the characteristics that are a result of the break itself or by other environmental effects, such as scrapes across an object. If a piece of wood is scraped across the entire length of it and then it breaks and you put that back together, you could see again the scratch that is all the way across.... Q. And, specifically in your report, on item number 7, could you tell us what you did with regards to analyzing these pieces of plastic? A. The first analysis that one does on samples like this is microscopic analysis, and you look for general shape, color, thickness. And then you try to see if the two samples can be put together along the fracture edge. In a case where the fracture edge matches, one compares the class characteristics of the plastic as well as the accidental characteristics of the breaking, the broken edge. Q. And, specifically in this case, would you take a moment here and look at first of all, C-7, Mr. Lideick? A. Okay. C-7 consists of four pieces of plastic that I analyzed in this case, and they are marked with the case number, my initials and the item number. Q. And also C-10, which has already been admitted into evidence, as well? A. C-10 is also pieces of plastic that I analyzed in this case, and they are also marked with the case number and my initials and the item numbers. Q. Would you take a look at C-11 and take that out of there? You can leave it out once you get it out. A. This is also one of the items that I analyzed in this case. Q. Mr. Lideick, with regards to C-10, the small plastic pieces recovered from the vehicle; C-11, the windshield wiper; and C-7, which were the pieces of black plastic found at the scene of this incident, what was your analysis of those three items, Mr. Lideick? A. The pieces of plastic in Exhibit C-7, one of the pieces of plastic shared five class characteristics and 85 accidental characteristics with the plastic on the windshield wiper assembly. Q. So on C-7, the smaller plastic pieces, you found those to match the windshield wiper? A. One of the items, yes, ma'am. Q. And, again, please describe the difference between those class and accidental characteristics? A. Class characteristics are characteristics that we refer to as a characteristic in this case a plastic that is built into the plastic by the manufacturer, such as color, general shape and thickness. Accidental characteristics, are characteristics that can be referred to as characteristics of the item by environmental effects, such as scratches and breaking. When something breaks along an edge it has changes in direction, and on the thick part of it, the plastic for instance, it has many different shapes in it that are referred to as hackle marks. And those things can all be observed and count as accidental characteristics. Q. How significant is the number 85 accidental characteristics? A. That's quite a bit. Q. And when you say quite a bit, how many accidental characteristics would it take for you to say for something to match on another piece? A. A bare minimum I would say most people would think of as three. Q. Mr. Lideick, with regard to the items that share a common fracture edge, did you find any instances of that in this case? A. Yes, ma'am. Q. And where did you find those? A. One of the plastic items in Exhibit C-7 had a common fracture edge with the plastic portion of the windshield wiper in C-11, Exhibit C-11. Q. And when something has a common fracture edge, what does that mean? A. It means that they were once together and they were broken. We could have a number of the same kind of items and break it, each one of them, and each one of them will break differently. And each one of them will have obviously different accidental characteristics in them. Q. And did you find in this case anything with regards to the plastic pieces that you analyzed, anything to have more than 85 accidental characteristics? A. One of the items in Exhibit C-7 was found to match a piece of black plastic in Exhibit C-10 with respect to four class characteristics and 105 accidental characteristics; and one of the items in Exhibit C-7 was found to match one of the pieces in Exhibit C-10 with respect to four class characteristics and 40 accidental characteristics. Q. And, again, those numbers, how significant are those numbers? A. They indicate to me that those two pieces were once one and they were broken.

Conversely, after conducting a stereoscopic examination of the windshield wiper lever from Lee's Sentra, Van Gelder was able to conclude that "[n]o broken edges were found on the windshield wiper lever." In other words, after looking at the lever under a microscope, Van Gelder was unable to detect even one broken edge which would indicate that the lever had even partially broken off from the steering column based upon a kick or some other type of physical force.

This is huge, and...it wasn't mentioned at all at trial. That means one of two things happened: (1) the prosecution didn't disclose the Laboratory Report to the defense; or (2) the prosecution did disclose the Report to the defense, but defense counsel failed to mention it at trial. If it's (1), this was pretty clearly a Brady violation because the report was material exculpatory evidence. If it's (2), this was quite possibly ineffective assistance of counsel sufficient to satisfy the two-pronged test from Strickland v. Washington. [Update: I've been informed that this Report was disclosed to the defense, meaning that this was another error by defense counsel in not following up on the report or mentioning it at trial.].

Why? Besides a bloody shirt (which has its own set of problems I will probably address in a future post), the only evidence that Lee was strangled in her Sentra was the allegedly broken windshield wiper lever. The "broken" lever also corroborated Jay's testimony regarding what Adnan told him about the murder. Together, this evidence made it look like Jay was telling the truth and that Lee could have been strangled while she was in the passenger seat.

Now, imagine if Van Gelder's Laboratory Report were admitted at trial. First, it would have been clear that the windshield wiper lever was not, in fact, broken.* This wouldn't be all that surprising because Detective Forrester himself admitted that the lever didn't look broken in the Crime Lab photos. The only thing ostensibly supporting the theory that the lever was "broken" was the video from the body shop, which probably should have been deemed inadmissible due to chain of custody issues (if defense counsel made an objection).**

Second, the jury would have been left to make one of two conclusions: (1) Adnan lied to Jay about Lee kicking the windshield wiper lever; or (2) Jay lied about Adnan claiming Lee kicked the windshield wiper lever. This seems like a pretty strange lie for Adnan to tell, meaning that the jury would have had reason to doubt both Jay and the prosecution's theory of how the murder was committed.

This doubt could have been compounded by the conflicting testimony regarding what exactly was "broken." Here's the manual for the 1999 Nissan Sentra.*** At the top of 2-2, there is a diagram of the instruments and controls. On the left of the steering column is the "[h]eadlight and turn signal switch/front foglight switch." On the right of the steering column is the "[w]indshield wiper/washer switch." As you can see from my timeline above, there are a lot of conflicting statements. Detective Forrester testified that the "broken" lever was on the right of the steering column at the first trial, but he testified that it was on the left of the steering column at the second trial. In his police interview, Jay said that Adnan told him Lee kicked and broke the windshield wiper wand (which is on the right) while he was strangling her, but he testified at the second trial that Adnan told him that Lee kicked off the turn signal (which is on the left).

I'm guessing that the photos and video showed that the "broken" lever was on the right of the steering column, which is why Murphy was able to make the statement she made during her closing argument. Then again, in this case, who knows?

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*I am, of course, not a Criminalist or automotive expert, so, if any reader has relevant expertise, I welcome a contrary opinion regarding how the lever could have been "broken" or at least "damaged" (causing it to "dangle") and yet not have any broken edges. For instance, at one point, Detective Forrester notes that the lever might just have been "punched in" as opposed to broken (page 205). The problem is that neither the photos nor the video seem to be currently available.

**I imagine that there were several different objections that defense counsel could have made to this video, but it is impossible to say without seeing the actual video.

***Lee had a 1998 Sentra, but I'm guessing the steering column in the 1999 Sentra was similar. If anyone can point me to the manual for the 1998 Sentra, I could remove all doubt. [Update: Here's the manual for the 1998 Sentra, which shows the same alignment at 2-2]

[Update: Here's a hyperlink showing the windshield wiper lever for a 1995-2001 Nissan Sentra. So, this is the lever which had no "broken edges."]

-CM

https://lawprofessors.typepad.com/evidenceprof/2015/02/d-2001-wl-36043981-broken-edges.html