Cali Doc Adult Institutions Outcome Eval Report 2010
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IN THE SUPERIOR COURT OF THE STATE OF CALIFl IulIA IN AND FOR THE COUNTY OF SAN DIEGO DEPARTMENT 12 BEFORE HONORABLE RICHARD M. THE PEOPLE OF THE STATE OF CALIFORNIA, PLAINTIFF, VS. JOHN IVAN KOCAK, DEFENDANT. ) ) ) ) ) ) ) ) ) ) NO. SCDll 1465 REPORTER'S PARTIAL TRANSCRIPT NOVEMBER 17, 1995 APPEARANCES: FOR THE PLAINTIFF(S): MICHAEL CAI.NTJ~ DEPUTY DIST ICT ATTORNEY 220 WEST DR ~WAY SAN DIEGO, IA 92101· FOR THE DEFENDANT(S): RAYMOND ARA ioN DEPUTY PtlBL Ie DEFENDER 233 A STREE , SUITE 400 ' SAN DIEGO, iA 92101 ROBIN SUNKEES, CS NO. 8824 COURT REPORTER, S fpElUOR COURT SAN DIEGO, CALIFO iNIA I-N-O-E-X 11-17-95, 2:25 P.M. * CHARLOTl'E WORD, + + REDIRECT EXA1'IINATION RECROSS-EXAMINATION +. CALLEO AS A WITNESS BY MR. CARPENTER; BY MR. ARAGON: PG LN 2 1 3 3 8 12 Ii 7 SAN DIEGO, CALIFORNIA, FRIDAY, 1.1.-11-95, 2: 1. P.M. •• 2 ---00--- J 4 (WHEREUPON, THE FOLLOWING PROCEEDINGS 5 6 K PLACE XN OPEN COURT.) 7 THE COURT: THE RECORD WILL REFLECT 8 AND DEFENDANT ARE PRESENT. WE HAVE HAD A 30-MINUTE RECESS. 9 I AM ~- FEEL THAT 1.0 WE NEED TO FINISH WITH DR. WORD'S TESTIMONY TODAY MATTER HOW 1.1. LATE IT TAKES SO THAT SHE DOES NOT NEED TO COME BA ON MONDAY 1.2 AND NOT GO ON VACATION TOMORROW, SO -- I MEAN, IF 1.3 IN A HALF AN HOUR, GREAT. 1.4 MR. CARPENTER: 1.5 THE COURT: 1.6 STAFF, FEEL FREE. IF NOT, I'M STAYING. GOOD. SO I.F YOU WANT TO MR. CARPENTER: 1.7 WELL, I WOULD INDICATE TO 1.8 COUNSEL THAT IN ANALYZING THE FILM IN PRESENTATIO 1.9 BREAK AND IN CONJUNCTION WITH THE NOTES THAT WERE 20 WORD HAS POUND AN ERROR, AND WE'D LIKE TO INDICAT 21. COURT IN REGARD TO THIS. 22 THAT THE LANES. WERE MISLABELED BY THE STAFF MOLE 23 SO THAT THE LANE 24 DR. WORD: 25 MR. aRPENTER: 26 U CAN PINISH AND I BELIEVE THAT THE BIOLOGIST THAT'S NOT CORRECT. WELL, THE REPORT THAT REFL S THE LANES 27 DR. WORD: 28 MR. CARPENTER: THAT'S CORRECT. SO I'LL JUST ASK DR. WORD , YOU KNOW, 1 INOICATE WHAT SHE HAS FOUND IN REGARD TO THIS BAS 2 AND PRESENTING IT TO YOU BEFORE THE BREAK. ON SEEING IT AND I APOLOGIZE FOR THE LENGTH OF OUR 3 4 COMING BAClC, BUT WE WERE TRYING TO MAKE SURE THAT 5 FOUND, NOW, IS ACCURATE SO THAT WE CAN REPORT 6 THERE WAS AN ERROR IN REPORT WRITING. IN T Q HAVE YOU, THAT 7 CHARLOTTE WORD, 8 9 10 + CALLED AS A WITNESS HEREIN, HAVING BEEN PREVIOUSLY ULY SWORN, WAS EXAMINED AND TESTIFIED AS FOLLOWS: 11 12 13 REDIRECT EXAMINATION BY MR. CARPENTER:" GO AHEAD. 14 Q. 15 THE COURT: , I 16 THIS REFERS TO THE REPORT WHICH ,Irs ATTACHED , TO THE DEFENSE MOTION AS ATTACHMENT ONE; IS THAT C 17 MR. CARPENTER: 18 THE COURT: 19 YES. IT'S A TWO-PAGE REPORT. IT SAY 21 THE COURT: 22 THE WITNESS: THAT'S CORRECT. THIS REPORT HAS AN ERROR IN IT; ~OT , THE FILM? I THINK SO. 23 I'M A LITTLE HYSTERICAL 24 THE -- ACCORDING TO OUR EVIDENCE LOG SHEET. OUR S 25 BE THE :KNOWN SAMPLE FOR MR. KOCAK. 26 :KNOWN SAMPLE FROM MISS FRANK. 28 "CELLI'IARX DIAGNOSTICS" AT THE TOP, "JUNE 20TH, 1995." THE WITNESS: 27 CT? THE -- OUR S I THINX LE 02 WOULD LX 03 IS THE AND IN EXPLAINING THE GEL EARLIER, IT-- I REALIZED THAT THE ANALYSIS THAT WE HAD BEEN -- WE HAD DONE, WHICH SHOWS 1 THAT THE SAMPLE 03 IS CONSISTENT WITH THE TYPES SAMPLE OlA, 2 l:S CORRECT, BUT WHAT WE INCORRECTLY REPORTED IS 03 WAS MR. 3 KOCAK'S SAMPLE. ACCORDING TO MY NOTES -- AND I HOPE I 4 5 THEM RIGHT, BUT I CERTAINLY WILL, IN A CALMER STAT 6 THIS -- 03 IS MR. KOCAK -- I'M SORRY -- 03 IS MISS 7 IS MR. KOCAK. 8 9 10 READl:NG RECONFIlUI , AND 02 SO IF YOU GO TO OUR REPORT PAGE 2, DETECTED RESULTS CHART, THE TYPES ARE ALL CORREcT, NAMES SHOULD BE SWITCHED. 11 AND THEN THE CONCLUSIONS WOULD BE INC 12 THE DATA -- THE PRIMARY DATA THAT WE HAVE OBTAl:NED 13 CONSl:STENT Wl:TH THE TYPES FROM MISS FRANK, AND WE 14 CONCLUSION REGARDING THE FAINT BANDS, WHICH MAY OR 15 l:NCLUDE MR. ltOCAK. 16 PERSPECTIVE. 17 THE COURT: 18 THE WITNESS: MAKE NO ~Y NOT I HAVE NOT REVIEWED IT FROM OKAY. 19 OUR REPORT WOULD BE, IN TERMS !OF THl:S CASE, ,: IF I'M ANALYZING THIS CORRECTLY, INCONCLUSIVE IN 'I' S OF ANY 20 SPERM DONOR, AND I'M EXTREMELY SORRY AND APOLOGIZE TO THE COURT 21 FOR THl:S ERROR. 22 23 24 25 26 THE COURT: WELL, I'M NOT -- I'M NOT SURE - I'M NOT SURE WHAT I'M SUPPOSED TO MAKE OF THIS. MR. CARPENTER, PERHAPS YOU CAN CLARIF ARE WE SUPPOSED TO NOW THROW OUT THE CELLMARK REPORT? MR. CARPENTER: WELL, WHAT -- WHAT WE WOULD BE DOING IS 27 NOT PRESENTING THE CELLMARK RESULTS, BECAUSE THEY' 28 NONCONCLUSIVE. ALL THAT THEY SHOW IS THAT THE VIC 1M'S DNA WAS 1 PRESENT IN THE SAMPLE THAT THEY ANALYZED. AND SO THE CELLMARK RESULTS WERE OBTA 2 sm SYSTEM. I ED THROUGH WOULD AT LEAST ASK THE COURT TO ONSXDER WHAT 4 ,DR. WORD HAS TESTIFIED REGARDING THE PCR SYSTEM, l' USE WE WILL 5 BE PRESENTING THE RESULTS OBTAINED BY THE SAN DIEG 6 DEPARTMENT LAB. 3 THE i THE COURT: 7 OKAY. SO YOU'RE -- AT THIS POI POLICE , YOU'RE 8 TELLING ME THAT THE PEOPLE DO NOT INTEND TO OFFER Cl!'UUIAB:K'S 9 RESULTS? 10 11 MR. CARPENTER: THE COURT: OKAY. AND THAT THE PEOPLE STI OFFER THE SAN DIEGO POLICE DEPARTMENT'S 14 15 STR SYSTEM RESULTS OBTAINED BY CELLMARK; THAT IS CORRECT. 12 13 THE STR SYSTEM OBTAINED BY MR. CARPENTER: THE COURT: -PH RESULTS? THAT IS CORRECT, AND WE !fA O'DONNELL SCHEDULED '1'0 TESTIFY MONDAY WHEN WE RES 16 INTEND TO OKAY. • AND SO DOES THIS MEAN '1' 17 END OF DR. WORD'S TESTIMONY, OR DO WE STILL WANT - 18 WANT TO ASK MORE QUESTIONS? 19 MR. CARPENTER: WELL, NO. XS THE DO YOU STILL I WAS 20 REDIRECT. 21 REGARDING PCR. AS WELL AS DATA BASES, AND I THINK 22 EVIDENCE OBVIOUSLY IS -- OR THAT TESTIMONY 23 THE COURT TO CONSIDER ON THE ADMISSIBILITY OF THE RESULTS 24 OBTAINED BY THE SAN DIEGO POLICE DEPARTMENT. ASK THE 25 COURT TO CONSIDER IT FROM THAT STANDPOINT. I THINK THAT I HAD TALKED -- OR ASKED BUT IF I UNDERSTAND SOME OF THE DEFEN ES CORRECTLY, 26 27 I THINK THAT THEY WERE MOST OBJECTION- -- OBJECTIO ,ABLE TO THE ;l8 sm RESULTS, BECAUSE THEY WERE SO NEW AND HAD NOT EEN 1 ·2 3 DlTRODUCED INTO COURT PREVIOUSLY, AT LEAST IN THIS THE COURT: DO YOU WISH To DEPENSE: SO LET ME ASK, THEN, OF RD? ASK ANY ADDITIONAL QUESTIONS OF DR. D; ARAGON: 5 OKAY. ATE. THE COURT: YES.· OKAY. 6 8 9 10 11 12 13 Q. DR. WORD, YOU CAME TO THIS DAY OR YESTERDAY? A. I WAS RIGHT NOW IN THIS COURTROOM -- OR LOOKING AT THE FILM, IT OCCURRED TO ME, YES. Q. AND IS THIS ESSENTIALLY, THEN, THE FI YOU'VE HAD A CIllUlCE TO LOOK AT THIS AREA AND DECID 15 WHETHER SUCH AN ERROR WAS POSSIBLE? 17 + I BY MR. ARAGON: 14 16 ,I RECROSS-EXAMINATION 7 A. TIME THAT FOR YOURSELF 'es. I HAD REVIEWED THE CASE FOLDER AND N I HAD NOT REVIEWED THE LABELING OF THE SAMPLES, SO IF YO 'RE ASKING ME I 18 ABOUT THE ERROR I JUST RECOGNIZED, THIS IS THE PIR T 'rHAT I 19 RECOGNIZED IT AND HAVE HAD A CHANCE TO LOOK AT IT 20 REVIEW IT. I HAD REVIEWED ALL THE DATA, THE FILM I HADN'T I 21 REVIEWED THE ACTUAL LABELING OF THE SAMPLES, AND 1: IWAS IN ERROR 22 . FOR 'rHAT. 23 Q. I 00 YOU HAVE ANY OPINION AS TO WHERE 24 OCCURRED, AT WHAT PART OF THE PROCESSING OF THE ON 25 MOST LIKELY OCCURRED? 26 27 28 A. ERROR THIS ERROR IT CERTAINLY LOOKS THAT THE ERROR WAS SIMPLY IN THE LABELING OF THE SAMPLES ON THE FINAL REPORT. THE DOCUMENTATION THROUGH THE CASE I HOW WE DO IT 1 IN EVERY CASE. SIMPLY WHAT OCCURRED IS THAT IN ER AND· THE THE SAMPLES ON TH:E: FINAL REPORT, THE DEFENDANT'S 3 VICTIH'S mJMBER GOT EXCHANGED, SUPERIMPOSED AND, T 4 REPORT:E:D BACKWARDS. 5 6 7 Q. SO THAT ERROR OCCURRED IN PREPARATION OR THIS JUNE 20TH REPORT AT CELLMAR1C? . A. THAT'S CORRECT. I 8 THERE'S ANYTHING WRONG WITH THE DATA OR THE SCIENC. 9 SIMPLY IN OUR FINAL REPORT, WE ERRED. 10 11 12 MR. ARAGON: THE COURT: MR. ARAGON: 15 THE COURT: 18 19 20 21 SURE. (WHEREUPON, AN OFF-THE-RECORD DISCUSS 14 17 N WAS HAD.) YOUR HONOR, I HAVE NO MORE QUE ALL RIGHT. IONS. I JUST HAVE A COUP OF QUESTIONS. FIRST OF ALL, MR. CARPENTER, DOES THI MEAN THAT CELLMARX STILL GETS THEIR $1200 A DAY? MR. CARPENTER: I BELIEVE SO. I MEAN, SHE' PU'l' A YEOMAN'S PERSON'S EFFORT INTO IT, AND THE COURT: WHAT I DON'T -- I DON'T MEAN TO BEAT A DEAD 22 HORSE, BUT I NEED TO UNDERSTAND, ON PAGE 2 OF THE 23 REPORT, HOW THIS WOULD BE CHANGED TO REFLECT WHAT 24 BE THE ACCURATE DATA. 25 RD CATCH HER YOUR HONOR, BEFORE I LET MRS. PLANE, COULD I TALK TO MR. TAYLOR FOR JUST ONE M~IrrE·? 13 16 IT'S THE WITNESS: E 23 oU BELIEVE TO WHAT WOULD YOU MARK OUT AND CHANGE? ON THE TOP OF THE PAGE UNDER TYPES I 26 DETECTED," UNDER "SAMPLE," WHERE IT SAYS "A. FRANK '" THAT SHOULD 27 BE SCRATCHED OUT AND LABELED JOHN KOCAK, AND UNDER. "SAMPLE: 28 JOHN KOCAK," THAT SHOULD BE SCRATCHED OUT AND LAB ED A. F.R.iUIX. 1 THE COURT: 2 THE WITNESS: 3 7 THE COURT: THAT'S CORRECT. AND WHERE IT SAYS "KOCAK," IT S THE WITNESS: AND THEN, CERTAINLY, THE CONCLUSION S "A. ALL -- ALL THE NAMES SHOULD ALSO BE CHANGED. 12 FRANK IS EXCLUDED AS THE SOURCE," THAT SHOULD SAY 13 EXCLUDED AS THE SOURCE. 14 EXCLUDED." IT SHOULD BE -- IT SHOULD SAY A. FRANK 15 EXCLUDED. 16 0'1' BB AND THEN THE FREQUENCY CALCULATIONS W FOR A. FRANlt, NOT FOR MR. KOCAK, AND THEN THE 18 CALCULATIONS-THE COURT: SO DOWN THERE ON -- IN THAT LAS 20 THAT STARTS "USING LOCI," INSTEAD OF JOHN KOCAK, I 21 A. FRANK? THE WITNESS: AND THEN THE CUMULATIVE FREQUENCY SENTENCE SHOULD SAY CALlrur~TIONS I DID EARLIER ARE JiAt,F RIGHT AND HALF WRONG. 25 POLICE DEPARTMENT TYPES WOULD BE CORRECT FOR THE 26 ROCAll:. AND THOSE FREQUENCIES WOULD STILL BE CORRE 27 THE STR DATA WOULD BE INCORRECT FOR HIS TYPES. THE COURT: ALL BE THAT' 5 CORRECT. 24 28 KOCAK IS WHERE IT SAYS, "JOHN KO 17 23 ULD SAY THAT'S CORRECT. 11 22 I MA. FRANlC" FRANK? 10 19 AGE UNDER SHOULD READ KOCAK? THE WITNESS: 9 AND THEN IN THE MIDDLE OF THE SO THE -- LINE ONE WHERE IT SAY THE COURT: 6 8 AND "GENOTYPES," THE NAMES WOULD ALSO BE CHANGED. 4 5 OKAY. THE THAT AN DIEGO ENcE IN MR. , BUT ALL OF AND MY QUESTION IS WHY DOES THI. NOT 1 EXONERATE MR. KOCAK? OBTAINED 2 THE WITNESS: BASICALLY, THE ONLY 3 MATCHES THE VICTIM. WE -- WE HAVE FAINT 4. CERTAINLY NOT BE WILLING TO INTERPRET. 5 ARTIFACT, AND WE HAVE NO GENETIC INFORMATION FOR. 6 THAT WE CAN INTERPRET OTHER THAN 7 IT'S AN INCONCLUSIVE RESULT IN TERMS OF WHO A POSS 8 SPERM DONOR. WAS IN THIS SAMPLE. 9 REGARDING THAT. 10 THEY ARE P S CASE, WE HAVE NO DATA or IF WE HAD A SECOND SET OF DATA, INFO 11 ANOTHER INDIVIDUAL THAT DID NOT MATCH THE VICTIM 12 NOT MATCH MR. J:OCAK, THEN THAT WOULD BE EVIDENCE 13 PERSON BEING THERE, AND HE WOULD BE EXCLUDED AS 14 DON'T HAVE THAT INFORMATION HERE. 15 INDIVIDUAL, AND IT IS CONSISTENT WITH 16 SO I GUESS I THE COURT: SIBLY DUE TO so INTElU'RET TION FROM THAT DID DONOR. WE WE DON'T UNDERSTAND 17 FRACTION, YOU'RE SAYING THAT THAT IS -- YOU BELIEV 18 FRANX. Y, ON SPERM IS FROM MISS , 19 THE WITNESS: THAT'S CORRECT. IT'S SIMPLY :ZO THAT DNA FROM THE FIRST FRACTION TO THE -- TO THE 21 FRACTION. THAT CAN OCCUR. Y OVER OF ERM THE --. 2:Z AS I SAID YESTERDAY, THE DEFINITION 0 23 SPERM ARE WORKING DEFINITIONS OF THE ABILITY OF TH SE CELLS TO 24 BREAK OPEN. 25 THOSE TWO CELL TYPES, SO BY SAYING SPERM FRACTION, :Z6 MEAN THAT IS DNA FROM SPERM AND ONLY SPERM. 27 EXPECT TO SEE DNA FROM SPERM WHERE SPERM ARE PRES :Z8 THEY ARE NOT 100 PERCENT DISCREET SEl' THE COURT: OKAY. IT'S ANY FURTHER QUESTIONS? NONSPERM AND TIONS OP 1. MR. CARPENTER; 2 MR. ARAGON; 3 4 I HAVE NONE. THANK YOU. NO, YOUR HONOR. (WHEREUPON, THIS CONCLUDES THIS PARTI OF PROCEEDINGS.) TRANSCRIPT 1 STATE OF CALIFORNIA 2 COUNTY OF SAN DIEGO ) ) ) S8: 3 4 I, ROBIN K. 8UNKEES, C8R, CERTIFICATE 5 PRO TEM REPORTER OF THE: SUPERIOR COURT 6 CALIFORNIA, IN AND FOR THE COUNTY OF SAN DIEGO, II 7 THAT I REPORTED IN SHORTHAND THE.PROCEEDINGS HAD B AND THAT THE FOREGOING TRANSCRIPT, CONSISTING OF 9 FROM 1 THROUGH 10, INCLUSIVE, CONTAINS A FULL, 10 TRANSCRIPTION OF MY STENOGRAPHIC NOTES OF SAID 11 DATED DECEMBER 5, 1995, AT sAN 8824, A Y CERTIFY DIEGO,I~~.PORNIA. 12 13 14 15 ROBIN K. SUNKEES, CSR NO. 8824 eEL ZENECA November 20, 1995 I I I I Ms'. Aiko Lawson, Criminalist San Diego Polic8 Department Forensic Science Section 1401 Broadway, M.S. 725 San Diego, CA 92101 Re: Your Case No. 95-007092 Cellmark Case No. F951078 EXHIBITS: Items of evidence were received'for analysis on February Polymerase chain react:ion (PCR) testing was performed on listed below: 2, 1995. he items PESCRIPTION 2-A White material in envelope labelled • 1te1l\ 2 sample White material in envelope labelled • ... Item 2 sample A .. . 2-B n B •.• " One of two blood swatches in envelope labelle Kocak ..• n One of two swabs in envelope labelled • • ... John , AM ••. • RESULTS: DNA was isolated from the items listed above. items was amplified using the PCR and typed for the sh repeat (STR) loci HUMCSFIPO, HlJI'lTPOX, and HOMTHOl using SIR Systems. The types detected for each sample are lis A b\Jt;"n, of A bl..,,~j.'less V h of the tandem nePrint'DI d below: t ~ Spee"'I(;n. ot2.~.I~. RepOrt for Cellmark Case No. F951078 November 20, 1995 Page Two . TYPES pETECTED Sample CSF1PO combined material cuttings (non-sperm fraction) 11* 8,1.2* 6,7 combined material cuttings <sperm fraction) 1.1. 8,12 6,7 Jolm Kocak 10 8,10 7 A• 11 8,1.2 G.7 .. In addition to the types listed above, results were obt These results may be due to the presence 0 more than one individual or to technical artifacts. that frOlll were faint. GENOTYPES Samples CSF1PO .1olm J(ocak 10,10 8,10 ,7 A. 11,1.1. 8,12 ,7 CONCLUSIONS: camaot be excluded a. the source of the mrA ob the cOlibiDed JUterial cutting•• A. John Kocak i . not the dODOr of the DNA obuined fr_ th ...terial cuttings. Ilowever • •ince the ODly typ_ obtain ClomhiDed _terial cutting. are cODtlistent with the type frOlll the swab labelled A. , no further conclu.ion c CQDClerniDg the cOilbiDed _terial cutting•• Robin W. Cotton, Ph.D. Director of Laboratories *. The bold type indicate. cbaDge. . .de in the A_d Laboratory ZX_ination. The accClIIIIpanying letter change. _de. edf~ ca.bined fraa the obtained be _de •D. Ileport of ain. the Report for Case No. F951078 November 20, 1995 Page Three cc, Mr. Michael G. Carpenter Deputy District Attorney County of San Diego 220 West Broadway San Diego, CA 92101 Mr. Raymond George Aragon Office of the Public Defendsr . County of San Diego 233 A Street Suite 400 San Diego, CA 92101 ZENECA CE DIAGN STIes November 20, 1995 C.llmark !f/....,,mn Mr. Michael G. Carpenter Deputy District Attorney County of San Diego 220 West Broadway San Diego, CA 92101 RE: 20271 Gold rod LIne Ge,manlow MD 20876 Telephone I 1) 428·4980 USA·LABS 4877 FIx (301) People of California v. John Kocak Your Case No. P56538!SCD110465 Cellmark Case No. F951078 Dear Mr. Carpenter: Please find attached an Amended R-'por~ of Laho~.tory ~tmination dated November 20, 1995 which is provided as a replaceme for the Report of Laboratory axaminatiOD dated June 20, 1995 evious1y provided in the above-referenced case. As you will re all, Dr. Word discovered in court on Friday, November 17, 1995 that the names of the two known individuals tested in this ease, . Franke and John Kocak, had been reversed in the Repor~ of oratory Exiull1nati011 dated June 20, 1995. As a result of this ror, the stated conclusions were also not correct. These errors ve been corrected in the Amended aepor~ of Laboratory Bxamina OD dated November 20, 1995. Please note that there is no indication of any erro scientific procedures used or the data obtained in this error was simply at the level of reporting where a transp the names occurred. We have requested that the two kno be resubmitted for analysis to confirm the typing resul in the ase; the ition of samples Please accept our sincerest apologies for this error. any inconvenience that this error may have caused. Respectfully yours, I Robin W. Cotton, Ph.D. Director of Laboratories Charlotte J. Wo d, Ph.D. Molecular Genet cist cc: Ms. Aiko Lawson criminalist ' San Diego Polic Dept. Forensic Scienc, Section 1401 Broadway, .S. 725 San Diego, CA 2101 Mr. Raymond George Aragon Office of the Public Defender County of San Diego 233 A Street Suite 400 San Diego, CA 92101 Ene. .0. l)usine,s A, bUI'flt*$ U Accredfted by the American Society 01 Crime l.IIboretory Directorlll.abondory Accredftation