The Oklahoma City Bombing Trial Transcripts
Terry Nichols
Friday, November 7, 1997 (afternoon)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Criminal Action No. 96-CR-68
UNITED STATES OF AMERICA,
Plaintiff,
vs.
TERRY LYNN NICHOLS,
Defendant.
REPORTER'S TRANSCRIPT
(Trial to Jury: Volume 68)
Proceedings before the HONORABLE RICHARD P. MATSCH,
Judge, United States District Court for the District of
Colorado, commencing at 11:07 a.m., on the 7th day of November,
1997, in Courtroom C-204, United States Courthouse, Denver,
Colorado.
Proceeding Recorded by Mechanical Stenography, Transcription
Produced via Computer by Paul Zuckerman, 1929 Stout Street,
P.O. Box 3563, Denver, Colorado, 80294, (303) 629-9285
APPEARANCES
PATRICK RYAN, United States Attorney for the Western
District of Oklahoma, 210 West Park Avenue, Suite 400, Oklahoma
City, Oklahoma, 73102, appearing for the plaintiff.
LARRY MACKEY, BETH WILKINSON, GEOFFREY MEARNS, JAMIE
ORENSTEIN, and AITAN GOELMAN, Special Attorneys to the U.S.
Attorney General, 1961 Stout Street, Suite 1200, Denver,
Colorado, 80294, appearing for the plaintiff.
MICHAEL TIGAR, RONALD WOODS, and JANE TIGAR, Attorneys
at Law, 1120 Lincoln Street, Suite 1308, Denver, Colorado,
80203, appearing for Defendant Nichols.
* * * * *
PROCEEDINGS
(Reconvened at 11:07 a.m.)
THE COURT: Be seated, please.
(Jury in at 11:07 a.m.)
THE COURT: All right. Next witness, please.
MR. MACKEY: Yes, your Honor. We would call FBI Agent
Thomas Brown.
THE COURTROOM DEPUTY: Would you raise your right
hand, please.
(Thomas Brown affirmed.)
THE COURTROOM DEPUTY: Would you have a seat, please.
Would you state your full name for the record and
spell your last name.
THE WITNESS: Thomas R. Brown, B-R-O-W-N.
THE COURTROOM DEPUTY: Thank you.
THE COURT: Mr. Ryan?
MR. RYAN: Thank you, your Honor.
DIRECT EXAMINATION
BY MR. RYAN:
Q. Good morning.
A. Good morning.
Q. Agent Brown, where are you employed?
A. I'm employed with the FBI.
Q. And how long have you been an agent of the FBI?
A. Approximately eight years.
Q. Where are you assigned at this time?
A. Wichita, Kansas office, which is part of the Kansas City
division.
Q. Were you assigned to that same office in April, May, 1995?
A. Yes, I was.
Q. Did you participate in the investigation of the Oklahoma
City bombing?
A. Yes, sir.
Q. Was one of your tasks that you were asked to participate in
to conduct a search at the home of Terry Nichols?
A. Yes, sir.
Q. And do you recall when that occurred?
A. The first search that I conducted was April 29, 1995.
Thomas Brown - Direct
Q. And under what authority were you -- you and the other
agents of the FBI entitled to conduct that search?
A. A search warrant authorized by the district court.
Q. Now, who accompanied you on the search?
A. It was myself, Special Agent Fred Hillman with the FBI;
Special Agent Leslie Earl, also with the FBI, and Special Agent
Fred Hillman (sic), also with the FBI.
Q. What items were you authorized to seize in accordance with
the search warrant?
A. Various explosives and men's clothing.
Q. Did you search the home thoroughly for these items?
A. Yes, we did.
Q. Did you look in small places?
A. Yes, we did.
Q. Did you open boxes and look as carefully as you could for
these items?
A. Yes, we did.
Q. In the course of looking for the items outlined in the
search warrant, did you come across some tools?
A. Yes.
Q. And would you describe what you came across.
A. There were numerous tools throughout the house, various
hand tools. There were some drills. There was saws, a number
of various hand tools.
Q. Let me show you what has been marked for identification as
Thomas Brown - Direct
Exhibit 2010. It will appear on your screen right under your
counter.
Were photographs taken during the search on April 29?
A. Yes, they were.
Q. Do you recall who the photographer was?
A. Special Agent Fred Hillman.
Q. Now, looking at Exhibit 2010, can you identify that for us?
A. That is a blue box with the word "Makita" on it.
THE COURT: Well, you can't go into the details. It's
not evidence.
THE WITNESS: Oh.
BY MR. RYAN:
Q. Just can you identify the photograph?
A. Yes, sir. It was a photograph taken on April 29 by Fred
Hillman during that search.
Q. Were you present?
A. Yes, I was.
MR. RYAN: Your Honor, we move to -- well, before I
ask that.
BY MR. RYAN:
Q. What -- where in the home of Terry Nichols was Exhibit 2010
located?
A. In the basement.
MR. RYAN: Your Honor, we'd move the admission of
Exhibit -- Government's Exhibit 2010.
Thomas Brown - Direct
MR. TIGAR: No objection.
THE COURT: 2010 received.
BY MR. RYAN:
Q. Now, let me show you what's been marked as 2011 -- before
we do that, explain to the jury what they're looking at here on
the Exhibit 2010.
A. This photograph was taken in the basement. It is a blue
box with the word "Makita" on it. It's a metal box.
Q. Did you open the box?
A. Yes, we did.
Q. Now, let me show you what's been marked for identification
purposes as Exhibit 2011 and ask you if you can identify that.
A. This is a photograph of contents of the blue box earlier
depicted.
Q. Did you go through the box at that time?
A. Yes, sir.
Q. Does Exhibit 2011 accurately depict the contents of the
blue Makita box in Exhibit 2011 -- 2010, I mean?
A. Yes, it does.
MR. RYAN: Your Honor, we'd move the admission of
Exhibit 2011.
MR. TIGAR: No objection your Honor.
THE COURT: Received, 2011.
BY MR. RYAN:
Q. The exhibit is now being displayed to the jury. Would you
Thomas Brown - Direct
tell them what they're seeing in this exhibit.
A. This is a Makita cordless drill. To the left of the
photograph is a yellow box that contains drill bits; and there
is an extra battery that you can see laying there, and there is
a battery charger and other miscellaneous items.
Q. Now, let me show you what's been marked as Exhibit 2012 for
identification, ask you if you can identify this.
A. Yes. This is also a photograph taken on the same day,
April 29, 1995.
Q. And is this the same box with the contents displayed that
you located in the home of Terry Nichols?
A. That's correct.
MR. RYAN: Your Honor, we'd move admission of Exhibit
2012.
MR. TIGAR: No objection, your Honor.
THE COURT: 2012 received.
BY MR. RYAN:
Q. If you would, Agent Brown, would you explain to the jury
what they're seeing in this exhibit?
A. This is a photograph of the interior of the same box. The
only difference is the yellow box is now opened. You can see
the contents of that yellow box and that being drill bits.
Q. Now, following the search on April 29 -- well, before I go
to that question, let me ask you: Did you seize these exhibits
that we've been looking at, the Makita drill box and the
Thomas Brown - Direct
contents, during the search of April 29?
A. No, sir.
Q. Why not?
A. It was outside of the scope of the warrant.
Q. Did you following leaving the home of Terry Nichols on the
29th -- did you report the findings of this -- of your search
to your superiors?
A. Yes, we did.
Q. As a result, was a search warrant requested and obtained on
May 3?
A. Yes, sir. It was actually obtained on May 2 and was
executed on May 3.
Q. Did you participate in that search as well?
A. Yes, I did.
Q. Now, when you rushed to the home of Terry Nichols on May 3,
did you seek to locate this Makita drill box?
A. Yes, we did.
Q. And where did you find it?
A. It was in the same place we left it, in the basement of the
residence.
Q. Was there -- had there been any change or alteration at all
with respect to the box or its contents?
A. No, sir.
Q. The photographs that we've admitted into evidence as 2010,
2011, 2012: Would they accurately depict what you saw in the
Thomas Brown - Direct
Makita tool box on the search of May 3?
A. Yes, sir.
Q. Now, you have before you what has been marked as -- as
Exhibit 151 and 151A, the box being 151 and the drill inside is
151A. Would you take a moment and look at those items.
A. I notice on the outside of the box, it indicates the box is
151A.
Q. Yes. I'd like for you to look at them and see if you can
determine whether or not those are the same exhibits that you
seized in the home of Terry Nichols on May 3.
A. Yes. These are the -- this is the same item that we took
on May 3, 1995.
Q. Would you look at the serial number on the drill?
A. Yes.
Q. And does that serial number correspond with your evidence
log?
A. Yes, it does.
MR. RYAN: Your Honor, we would move the admission of
Exhibits 151 and 151A.
MR. TIGAR: May I approach the bench briefly, your
Honor?
THE COURT: Yes.
(At the bench:)
(Bench Conference 68B1 is not herein transcribed by court
order. It is transcribed as a separate sealed transcript.)
Thomas Brown - Direct
(In open court:)
MR. TIGAR: Subject to the conference at the bench,
your Honor, no objection.
THE COURT: All right. It's 151 and 151A?
MR. RYAN: Yes, your Honor.
THE COURT: Received.
BY MR. RYAN:
Q. Now, after you seized the Exhibit 151 and 151A, what did
you do with it?
A. A sticker was affixed to the front of the box, and it was
taped with evidence tape.
Q. Was it taped in such a way that the box could not be opened
without breaking the tape?
A. That's correct.
Q. And then what was -- after you taped up the box, what did
you do with it next?
A. It was transported back to Junction City, Kansas, and we
put it in an FBI storage facility.
Q. And when was the last time that you saw this Exhibit 151
and 151A?
A. May 4, 1995.
MR. RYAN: That's all I have, your Honor.
THE COURT: Is the box that you're referring to the
case?
THE WITNESS: Yes, sir, the case. I'm sorry.
Thomas Brown - Direct
THE COURT: All right. Mr. Tigar?
CROSS-EXAMINATION
BY MR. TIGAR:
Q. Good morning, Agent.
A. Good morning.
Q. My name is Michael Tigar. I'm one of the lawyers appointed
to help out Terry Nichols.
A. Yes, sir.
Q. On the 29th of April, was that the first search that you
had participated in?
A. Yes, sir.
Q. As a member of the team?
A. Yes, sir, that's correct.
Q. And you were there with Mr. Earl; correct?
A. I was.
Q. All right. Now, when you went -- and that warrant, the
first time you went, that authorized you to seize clothing; is
that correct?
A. Clothing and explosives.
Q. And explosives. And did you get some clothing that day?
A. Yes, we did.
Q. Okay. And, of course, you handled that properly and
returned it to the -- took it wherever it was supposed to go.
Correct?
A. Yes, sir.
Thomas Brown - Cross
Q. Now, you testified that you were searching there under a
warrant issued by a court; is that correct?
A. That's correct.
Q. Did you have a briefing before you went on the search?
A. We read the warrant and what it authorized us to took -- to
take. I'm not sure that we had a briefing necessarily. We
discussed it informally.
Q. Who told you to do it, to make the search on the 29th?
A. Supervisor, Mike Shannahan.
Q. Did anybody else tell that you Mr. and Mrs. Nichols had
both signed consents to search their home?
A. Not that I'm aware of. I don't recall it, if they did.
Q. At any rate, you never saw a signed consent to search by
either Mr. or Mrs. Nichols; is that correct?
A. That's correct.
Q. Did anyone ever show you a diagram of the house that had
been prepared by Mr. Nichols and given to the FBI?
A. No, sir.
Q. At the time that you went to the home on the 29th, was
Mrs. Nichols home?
A. No, sir.
Q. Do you know where she was?
A. Not specifically. I don't, no, sir.
Q. Now, you say that you went back there on the 3rd and you
found the Makita drill; correct?
Thomas Brown - Cross
A. That's correct.
Q. Now, were you wearing gloves when you handled it on the
29th?
A. Yes, sir.
Q. And the latex gloves, or cotton?
A. Latex.
Q. Latex gloves?
A. Yes, sir.
Q. Do you know if those had talc in them, or on them, or they
were just plain?
A. As I recall, they had talc.
Q. And that's for ease of getting them on and off?
A. Yes, sir.
Q. And the reason you wore the latex gloves was that you
wanted to preserve any fingerprints that might be on the item.
Correct?
A. Yes, sir.
Q. And you had seen Makita drills before that date; correct?
A. Yes, sir.
Q. In fact, you can buy a Makita drill at any hardware store?
A. Yes, sir.
Q. And would you open up the box for us -- for me, please, and
take out the yellow item that contains the drill bits. That
was on the picture?
A. Yes, sir.
Thomas Brown - Cross
Q. Now, that is a Makita item, or is that a -- something that
was bought in the after market?
A. As far as I know, it would be bought in the aftermarket.
Q. Okay. And when you go to the hardware store, have you seen
collections of drills (sic) like that, packaged in a little
plastic box like that?
A. Yes, sir, I have.
Q. There is nothing about those drills (sic) to your
inspection that looked different from what you saw in an
ordinary hardware store; is that correct?
A. That's correct.
Q. Now, the box that you're holding in your hand, sir, has
some black smudges on it. That wasn't on there when you found
it; correct?
A. That's correct.
Q. And you understand that's from the fingerprinting process?
A. That would be my understanding.
Q. Now, do you know what happened to the drill after you found
it? You said you took it to the locker. Correct?
A. Yes, sir.
Q. Now, when you were looking at it, did you notice any metal
shavings or chips in the chuck of the drill?
A. No, sir.
Q. All right. And would you take out the drill that you have
there and hold it up for the jury. And I'm just doing this for
Thomas Brown - Cross
the record because everybody has seen a drill, but could you
point to the chuck of the drill?
A. It would be this area here towards the front.
Q. And that's a part that has -- that's where the drill bit
goes in and then there is a way to tighten the drill bit;
correct?
A. Correct.
Q. And there is a sort of a gear-type assembly there; right?
A. Yes, sir.
Q. Okay. You can put that back in there. That's all the
questions I had.
Now, when you were with Agent Earl on that date, was
he doing something else other than looking for a drill, on the
3rd of May?
A. Well, we all were together in the house.
Q. Uh-huh.
A. And went through the house together, so . . .
Q. Right. Was he looking for books?
A. On May 3?
Q. Yes, sir.
A. Not particularly. We recovered a book.
Q. Oh, you got -- and some other literature and stuff?
A. Yes, uh-huh.
Q. Okay. Now, had you noticed some books there on the 29th
when you went in?
Thomas Brown - Cross
A. Yes, sir.
Q. And had you noticed a book in a Quaker State cardboard box?
A. I don't recall a Quaker State box, but --
Q. Now, when you went in on the 29th, did you see a number of
books?
A. Yes, sir.
Q. About how many did you see?
A. I have no idea. I just don't recall.
Q. Did you have a discussion on the 29th with the other agents
about whether you wanted to take some of the books that you had
seen?
A. Well, we could not take them under that warrant.
Q. Uh-huh.
A. Because it was outside the scope of the warrant.
Q. I understand that.
A. We thought that they could be important, and so we reported
it back to the supervisor.
Q. Now, did you report back to the supervisor the name of just
one book, or did you report the name of many books?
A. I don't know the answer to that.
Q. Okay. You weren't on book detail. Is that fair to say?
A. I was not specifically looking at the books.
Q. Okay.
A. I was keeping the evidence recovery log.
Q. All right. Now, on the 3rd, you did -- did you keep the
Thomas Brown - Cross
evidence recovery log that reflected the recovery of books and
pamphlets and things like that?
A. Yes, I did.
Q. Okay. Now, at that time, did you have a discussion with
Agent Earl about which books you should take?
A. We discussed each item that we -- we looked at. We
discussed each item amongst ourselves.
Q. Well, what I'm asking you is did you see in Mr. and
Mrs. Nichols' house a large number of books on many different
subjects? Do you remember noticing that?
A. There were books on different subjects in the house. That
would be correct.
Q. Okay. And by number, would you say more than 15 or 20?
A. I would think so. I'm just not certain of that, sir. I
just don't recall.
Q. Right.
MR. TIGAR: Thank you very much, Agent.
I have no further questions, your Honor.
MR. RYAN: May I have just a moment, your Honor?
THE COURT: Yes.
MR. RYAN: We have no redirect, your Honor.
We may recall this witness at later time.
THE COURT: All right. You may step down now, Agent.
Next, please.
MR. MACKEY: Thank you, Judge.
Brett Mills.
THE COURTROOM DEPUTY: Raise your right hand, please.
(Brett Mills affirmed.)
THE COURTROOM DEPUTY: Would you have a seat, please.
Would you state your full name for the record and
spell your last name.
THE WITNESS: My name is Brett, B-R-E-T-T, Ashley,
A-S-H-L-E-Y, Mills, M-I-L-L-S.
THE COURTROOM DEPUTY: Thank you.
THE COURT: Ms. Wilkinson.
MS. WILKINSON: Thank you, your Honor.
DIRECT EXAMINATION
BY MS. WILKINSON:
Q. Good morning, Mr. Mills.
A. Good morning.
Q. Could you tell the ladies and gentlemen of the jury where
you work.
A. I work for the FBI in the FBI Laboratory.
Q. How long have you been with the FBI?
A. Approximately eight-and-a-half years.
Q. When you started, did you start in the FBI Laboratory?
A. No, ma'am.
Q. Where did you start?
A. I started in the mail room.
Q. How long did you stay in the mail room?
Brett Mills - Direct
A. Approximately nine months.
Q. Then did you go on to the lab?
A. Yes, ma'am.
Q. First assignment there?
A. I was a physical science technician in the Firearms/Tool
Marks Unit.
Q. Tell us what the Firearms/Tool Marks Unit is generally?
A. We do cases that have firearms, bullets, cartridge cases,
comparisons of; and then with tool marks we'll compare tools to
known tool marks on a certain item.
Q. Tell us again what your position was when you were in that
unit the first time.
A. I was a physical science technician.
Q. And did you have any training, general training, to prepare
you for that?
A. You mean school?
Q. School. I'm sorry. Can you tell the jury about your
undergraduate degree.
A. My undergraduate degree is in biology. I have a B.S. from
Towson State University, Towson, Maryland.
Q. How long were you in the Firearms and Tool Marks Unit?
A. Approximately a year and a half.
Q. Where did you go then?
A. I went to the Explosives Unit.
Q. What was your position in the Explosives Unit?
Brett Mills - Direct
A. I was still a physical science technician.
Q. Tell the jury what the Explosives Unit does at the FBI.
A. The Explosives Unit will receive evidence from bombing
cases, from a exploded device, or from just what is a
suspicious bomb or a hoax bomb; and then we'll try and
reconstruct it and find out the component parts of it and trace
it back to manufacturers and everything.
Q. Were you a physical science technician in the Explosives
Unit in April of 1995?
A. Yes, I was.
Q. At that time, what were your duties and responsibilities?
A. I would receive evidence, and I would inventory it. I
would check it in, assign it a work sheet, and then assign an
identifier number that we use in the laboratory which we refer
to as a Q or a K.
Q. Okay. Let's break that down a little bit.
A. Okay.
Q. First you get evidence into the laboratory. Is that right?
A. Yes, ma'am.
Q. And how do you receive evidence?
A. I receive evidence that has already been assigned what we
refer to as a laboratory number, specific strictly for the lab.
And it is on the original communication, which is a
communication from the contributor who is submitting the
evidence.
Brett Mills - Direct
The letter will detail, you know, who it's from, who
is the officer; and then it will give us a listing of the
evidence that's being submitted and the exams that are
requested of it.
Q. Okay. So if someone sent you evidence from Herington,
Kansas, it would have a list of that evidence that was supposed
to be in that container or submission or whatever you call it?
A. Yes, ma'am.
Q. All right. And once you receive it, what do you do with
it?
A. I would open up the container and read the incoming, and
then I would see how many items I have; and then I would start
comparing the items in the container to the items listed on the
piece of paper to make sure that all the items did come in.
Q. Okay. So you inventory the items; is that right?
A. Yes, ma'am.
Q. Do you prepare your work space in any way before you do
that?
A. Yes, ma'am. I have a workbench. It's probably about
10 feet by 4 feet.
I'll clean it down with a cleaning solution, dry it
off. And then we go across the hall where we have a wrapping
room, where we send packages back; and I tear off brown
wrapping paper called "craft paper," and I'll bring that out
and lay it out onto the countertop. And then I'll set my box
Brett Mills - Direct
up. And then I'll put my latex gloves on, open the box up and
then start checking in the evidence.
Q. And the purpose of that paper -- is it disposable paper?
A. Yes, ma'am.
Q. So do you use that with that submission or the box you're
talking about and get rid of it after that?
A. Yes, ma'am.
Q. All right. Now, once you open up the box and you see the
evidence, what do you do?
A. As I pull it out of the box, I'll compare it to the items
that are on the list itself; and then once I've seen it's all
there, I'll start generating what I refer to as a worksheet.
It's an internal document in the laboratory.
And as I am checking it in, I will assign it a Q or K
number and then write out a brief description on it.
Q. Let's go back to those terms.
A. Sorry.
Q. Your worksheet: Is that just a way of keeping track of the
evidence in the lab?
A. Yes, it's a short description.
Q. What is a Q number or K number -- or what are Q numbers and
K numbers?
A. A Q number we use in the laboratory refers to a questioned
item. We don't know what it is. And a K number is what we
refer to as a known item, like a firearm or a tool.
Brett Mills - Direct
Q. And do you assign a Q or K number to each item as it comes
into the laboratory?
A. Yes, ma'am.
Q. Let's turn to April of 1995. After the bombing in Oklahoma
City, did you receive an assignment related to the
investigation?
A. Yes, ma'am.
Q. What was your assignment?
A. I would be the technician in charge of the evidence as it
was coming in. I would be handling it and doing my duties with
it.
Q. And did you receive evidence or check in evidence on May 18
of 1995?
A. Yes, ma'am.
Q. Do you recall doing it that day?
A. Yes, ma'am.
Q. And do you see Government's Exhibit 151, 151A -B, and -C in
front of you?
A. May I open it?
Q. Sure.
A. Yes, ma'am.
Q. Did you receive those items on May 18, 1995?
A. Yes, ma'am.
Q. When you received them, what did you do?
A. I was checking the case in, and we were generating our work
Brett Mills - Direct
sheet; and I opened up the box and -- to see what the items
were, gave a brief description for the work sheet, and assigned
it a Q number.
Q. Did you examine all the items in the box when you did that?
A. Yes, ma'am.
Q. Government's Exhibit 151, the drill, is already in
evidence. So could you take that out for a moment.
And can you tell the jury what kind of drill that is.
A. This is a Makita cordless driver drill.
Q. Is there a battery in the drill?
A. Yes, ma'am.
Q. And was there a battery in the drill when you examined it
back in May --
A. Yes, ma'am.
Q. -- of 1995?
Now, can you put that back in.
Can you look at Government's Exhibit 151C.
Now, when you looked in that box on May 18, 1995, what
did you see in there?
A. I saw a series of drill bits ranging in size from 1/16 to
11/64.
Q. Were there any missing at that time?
A. No, ma'am.
Q. Is there one missing from there now?
A. Yes, ma'am.
Brett Mills - Direct
Q. Can you look at Government's Exhibit 151B.
Do you recognize that?
A. Yes, ma'am.
Q. Now, is that -- can you -- can you recognize what's in the
bag?
A. It is a drill bit.
Q. Okay. Now, is there a marking on that bag, Q number on
that bag?
A. Yes, ma'am. It's "From 2898."
Q. Tell the jury how you marked this whole Exhibit,
Government's Exhibit 151, 151A, -B and -C, with a Q number.
A. This entire box with all the contents were given one Q,
Q2898. And when this was removed out, the designation of "From
Q2898" was assigned to it.
MS. WILKINSON: Your Honor, we offer Government's
Exhibit 151B, which is the drill bit.
MR. TIGAR: No objection, your Honor.
THE COURT: Received, 151B.
BY MS. WILKINSON:
Q. After you examined all the items, did you place them back
in the box?
A. Yes, ma'am.
Q. How did you seal the box after you had examined the items?
A. I placed it in this Ziploc bag here.
Q. Did you mark the bag in any way?
Brett Mills - Direct
A. Yes, ma'am.
Q. How did you mark the bag?
A. I put the laboratory number and the Q number, Q2898, on it.
Q. Now, you have Government's Exhibit 151B in your hand.
A. Yes, ma'am.
Q. That's the drill bit?
A. Yes, ma'am.
Q. Was that sent on to Agent Cadigan for examination by the
Tool Marks and Firearms Unit?
A. Yes, ma'am.
MR. TIGAR: Objection.
If he knows, your Honor.
BY MS. WILKINSON:
Q. If you know. Do you know that it was sent?
A. Yes, ma'am.
Q. And did you receive it back from him after he conducted his
examination?
A. Did I personally? No, ma'am.
Q. Are you aware whether the Explosives Unit received it back?
A. Yes, ma'am.
MR. TIGAR: Your Honor, object. Lack of foundation.
MS. WILKINSON: That's fine, your Honor. We'll
withdraw the question.
THE COURT: All right. We'll strike the answer.
MS. WILKINSON: All right. No further questions.
THE COURT: Mr. Tigar.
MR. TIGAR: Yes, your Honor, move to strike the
answer.
I'm sorry. She's done. I'm about half a step behind,
your Honor.
CROSS-EXAMINATION
BY MR. TIGAR:
Q. Good morning, Mr. Mills.
A. Hi.
Q. I'm Michael Tigar. I'm one of the lawyers appointed to
help Terry Nichols in this case, sir.
You have a degree in biology?
A. Yes, sir.
Q. In 1991, you were transferred to the Explosives Unit; is
that correct?
A. Yes, sir.
Q. And in the Explosives Unit, you were trained by Mr. Davitch
and Mr. Rogers?
A. Yes, sir.
Q. Is that correct? And also by Special Agent David Williams.
Is that right?
A. Yes, sir.
Q. And that was an informal training program that lasted about
six months. Is that correct?
A. No, sir.
Brett Mills - Cross
Q. How long did it last?
A. With Mr. Davitch, it was about six or eight months. He was
going to agents class. Mr. Rogers stayed, and I still learned
under him; and it kept on basically being an ongoing process
with Mr. Williams.
Q. Is that right? So your training period lasted longer than
six months?
A. Yes, sir.
Q. Do you remember giving a deposition in this case?
A. Yes, sir.
Q. Do you remember asking -- being asked the question: "How
long did you train with Williams? Did you have a training
period?"
Question (sic): "Uh-huh."
"Let's see. Approximately six months."
Is that what you're referring to, the Williams
training period, six months?
A. Are you referring to my deposition?
Q. Yes.
A. When I said that it was six months, that was like my
initial trial period.
Q. Okay.
A. And then as time progressed, Mr. Williams would still
review my work and I would still learn new things in this new
school, so it was still an ongoing process.
Brett Mills - Cross
Q. All right. Now, you have a -- you testified to a procedure
for maintaining cleanliness in your laboratory. Correct, sir?
A. Yes, sir.
Q. Do you have a written protocol for maintaining cleanliness
in your laboratory?
A. In the laboratory itself?
Q. Yes, sir.
A. Not that I'm aware of at the moment, sir.
Q. Yes. You've never seen one, in fact. Is that right, sir?
A. Not for the lab.
Q. Okay. Now, the area of the laboratory we're talking about
here where you receive the evidence: Does that have a name or
a designation?
A. Which area? Are you talking about the Evidence Control
Center?
Q. Yes, sir.
A. It's the Evidence Control Center.
Q. I see. And is there something called a 1B area?
A. Yes, sir.
Q. What is that?
A. That was a part of the Explosives Unit area.
Q. Okay. Now, does the 1B area have anything to do with the
evidence that you're testifying about today?
A. Yes, sir.
Q. All right. What does it have to do with it?
Brett Mills - Cross
A. This evidence was stored down there at one time.
Q. All right. Now, prior to its being used to store evidence
in this case, what had the area been used for?
A. For a long period of time, or right before it, or --
Q. Right before.
A. Right before? We had parked our crime scene vehicle and a
box fan in there.
Q. A box fan. Now, was there a time when it was used to store
a case -- evidence from another bombing?
A. Yes, sir.
Q. And the evidence that was stored there from the other
bombing: What kind -- was that a pipe-bomb case?
A. To my knowledge, yes, sir.
Q. All right. Now, after -- prior to getting the evidence in
this case, you did wash the floor and paint it; correct?
A. Yes, sir.
Q. Now, you testified that when the evidence that you're
looking at came in, there was something about Q numbers and K
numbers. Right?
A. Yes, sir.
Q. Okay. Now, a K number -- that means a "known"; correct?
A. That's what we refer to it as, yes, sir.
Q. And a Q number means "questioned"; that is, we don't know.
A. Correct.
Q. And one of the things that people in your business try to
Brett Mills - Cross
do is to figure out if a Q matches a K; right?
A. Yes, sir.
Q. Okay. If we could take a simple illustration of that: If
I touched a piece of paper and left a latent fingerprint and
that were recovered somewhere and processed to bring up the
latent fingerprint, that might get a Q number; correct?
A. Are you talking about the piece of paper?
Q. Yes. The piece of paper might get a Q number.
A. Yes, sir.
Q. Right?
A. Yes, sir.
Q. And then they would go to their records and find out if I
had ever been fingerprinted?
A. True.
Q. So they'd know that somebody named Michael Tigar has got a
set of prints, and that might be the K that they would try to
compare to the Q. Is that right? Is that how it works?
A. I'm not sure about how Latents does. I don't know --
Q. Okay.
A. I don't know if they K their fingerprint cards.
Q. Okay. You don't.
Can you give me an example from your experience of the
comparison so that I can understand how this Q and K business
works?
A. An example would be a bullet. You pull a bullet out of a
Brett Mills - Cross
victim's body.
Q. Okay.
A. And then we get a suspect weapon in.
Q. Ah. And you test-fire it.
A. Test-fire it.
Q. And we know that a -- the bullet out of the suspect's body
is then put under a microscope and somebody looks at the
little --
A. Striations.
Q. -- striations on it?
A. Yes, sir.
Q. And then we test-fire and we compare the striations.
Correct?
A. Yes, sir.
Q. And that's because a bullet spins as it goes out the front
of the firearm. Correct?
A. Yes, sir.
Q. And do you have any idea -- well, we'll ask somebody else
about the details. This is just an example. Okay.
So do you have a written protocol for determining
whether a specimen gets a Q or a K number?
A. It wasn't a protocol. We had papers from our units. If we
received evidence and they would wind up doing their
examinations, we would -- they would like it written up a
specific way. Firearms, for example: They had a specific way
Brett Mills - Cross
of writing up a weapon or a cartridge case or etc. So we did
have paper on that, yes, sir.
Q. Now, you said on your direct examination that the number
Q2898 was assigned. Right?
A. Yes, sir.
Q. Who assigned it?
A. I did.
Q. Okay. So you decided that Q2898 was the whole package, the
box with the drill bits, and so forth.
A. Yes, sir.
Q. Now, there came a time when you took out the quarter-inch
drill; right?
A. Yes, sir.
Q. When was that?
A. I believe July 11. I did not do it personally.
Q. Oh, you didn't do it personally?
A. No, sir.
Q. Who gave the drill bit that separate Q number?
A. The alphanumeric?
Q. Yes, sir.
A. Q2898A or B?
Q. Yes.
A. That would be by Mr. Cadigan.
Q. And Mr. Cadigan is?
A. Is a firearms/tool marks examiner.
Brett Mills - Cross
Q. Special Agent Cadigan, firearms/tool mark examiner: He's
the one that put the number on there. Is that right?
A. Not the number. We do have an alphanumeric. If further
exams are going to be done on a large item like this, then
someone might want to put either an alpha or numeric character
behind it. In this case, Mr. Cadigan put A and B on two drill
bits.
Q. Then that was done by him?
A. Yes, sir.
Q. Now, did -- at that point, did -- were you responsible for
getting the drill bit over to Mr. Cadigan so he could do his
work?
A. Did I personally deliver it to him?
Q. Yes, sir.
A. No, sir, I don't think I did.
Q. Okay. Now, with respect to the drill itself, were you
aware of any metallurgical examinations that were conducted on
the drill or things that were attached to it?
A. I was aware that metallurgy had been assigned to this one
submission, yes, sir.
Q. Now, would you tell the jury, please, what is metallurgy.
MS. WILKINSON: Objection, your Honor.
MR. TIGAR: For these purposes.
MS. WILKINSON: Beyond his expertise and beyond the
scope.
Brett Mills - Cross
THE COURT: Well, you're not asking for a dictionary
definition.
MR. TIGAR: No, I'm just asking what he understood
that was in his office, your Honor. I'm not asking for a
metallurgical opinion. I just want to know what it is.
THE WITNESS: From my understanding is -- is when we
have a metallurgical exam is they're comparing basically, I
guess, like a Q and a K. I'm not sure if they do, but to see
if the metals match.
BY MR. TIGAR:
Q. Okay. Now, was it your understanding that they were going
to find out what kind of metal the drill was made of, or the
particles that adhered they wanted looked at?
MS. WILKINSON: Objection, your Honor.
THE COURT: Overruled.
THE WITNESS: That, I'm not sure of. I didn't take it
over.
BY MR. TIGAR:
Q. Okay. When did the -- this item leave your custody to be
taken over, as you say, for this metallurgical work, whatever
it was?
A. I believe that was June 2.
Q. And did you ever have a conversation with Agent Cadigan
about his work on the drill bit? Just yes or no?
A. Yes.
Brett Mills - Cross
Q. Whether you did -- you did. Okay.
A. Yes.
Q. When was that conversation?
A. After I transferred back over to the Firearms/Tool Marks
Unit. He was my training instructor.
Q. Oh, all right. And did you ever have a conversation with
Special Agent Williams about the metallurgy?
A. About the metallurgy? No, sir.
Q. Okay. Did you ever have a conversation with anyone about
the metallurgy?
A. Not the metallurgy, no, sir.
Q. Did there -- did there ever come a time when the drill was
sent to the Oak Ridge Laboratory, to your knowledge?
A. Not to my knowledge.
Q. You don't know one way or the other. Is that right?
A. I had heard later on, but I don't think we sent it.
Q. Okay. No -- not -- in other words, of your personal
knowledge, you were not responsible for sending it to the Oak
Ridge Laboratory if indeed that happened. Is that right?
A. No, sir.
MR. TIGAR: All right. Your Honor, I have no further
questions with respect to the scope of this witness'
appearance.
THE COURT: All right.
MR. TIGAR: On this subject.
MS. WILKINSON: He will be recalled, your Honor, for
other purposes.
THE COURT: Okay. You may step down for now.
THE WITNESS: Thank you.
THE COURT: Next witness.
MR. MACKEY: Your Honor, we would call James Cadigan.
THE COURT: All right.
THE COURTROOM DEPUTY: Raise your right hand, please.
(James Cadigan affirmed.)
THE COURTROOM DEPUTY: Would you have a seat, please.
Would you state your full name for the record and
spell your last name.
THE WITNESS: James J. Cadigan, C-A-D-I-G-A-N.
THE COURTROOM DEPUTY: Thank you.
MR. ORENSTEIN: May I proceed, your Honor?
THE COURT: Yes.
MR. ORENSTEIN: Thanks.
DIRECT EXAMINATION
BY MR. ORENSTEIN:
Q. Good morning, Mr. Cadigan.
A. Good morning, sir.
Q. Where are you employed, please.
A. I am a special agent of the Federal Bureau of
Investigation, and I'm assigned to the Firearms and Tool Marks
Unit of the FBI Laboratory in Washington, D.C.
James Cadigan - Direct
Q. What are your responsibilities there?
A. As a member of that unit, I have three areas of
responsibility. I do serial number restoration examinations, I
do firearms identifications, and I also do tool mark
examinations.
Q. How long have you been doing tool mark examinations?
A. For 20 years.
Q. Now, can you tell the ladies and gentlemen of the jury
basically speaking what a tool mark examination is.
A. Tool mark examination deals with the comparison of marks
that are left at the scene of a crime with a particular tool in
order to determine whether or not that particular tool made
that mark.
For instance, in a burglary in which a screwdriver is
used to pry open the window of a residence, tool mark
identification or tool mark examination would look at the marks
on the window sill and compare them to marks made by the
screwdriver to determine whether or not that screwdriver made
the marks on that window sill.
Q. Now, when you do that kind of examination, are there
different types of marks that can be examined?
A. Yes, sir.
Q. Can you describe the different types of marks?
A. Well, basically, there are two different types of marks.
One would be called a compression or impression, where the
James Cadigan - Direct
screwdriver blade would be pushed in and then pressed down.
That would leave a depression or impression on the window sill.
The second type or general type of tool mark would be
called a striation or scratch, and that would be from the blade
of the screwdriver dragging across the window sill and leaving
scratches on the surface.
Q. Now, did you conduct any tool mark comparison in this case?
A. Yes, I did.
Q. And did it involve a padlock and a drill bit?
A. Yes, it did.
Q. Before I ask you about that examination, let me ask you:
Could you describe your educational background?
A. Yes, sir. I have a bachelor of science degree in chemistry
from the University of Maryland in College Park.
Q. What year did you graduate?
A. 1971.
Q. How long after your graduation did you join the FBI?
A. Five months.
Q. And can you describe for the jury what you've done with the
FBI since joining?
A. Well, after I was -- after training school, I was assigned
to the Savannah, Georgia field division for a year, where I did
general criminal work; and then I was assigned to the Newark,
New Jersey field division for approximately three-and-a-half to
four years, and I did stolen-car investigations in Newark. And
James Cadigan - Direct
then I was assigned to the FBI Laboratory in 1977.
Q. When you were first assigned -- is 1977 when you became an
examiner, or when you were assigned to the laboratory?
A. Yes. I was assigned to the laboratory in 1976 and then
became a qualified examiner in 1977.
Q. In that interim, did you receive some training?
A. Yes, sir.
Q. Can you describe the training that you received during that
year?
A. Upon my assignment to the Firearms Unit, I underwent a
training program that included reading of literature available
in the field of firearms and tool marks identification,
instruction in the types of equipment used by the laboratory
for these kinds of examinations. Also, I went to manufacturing
plants to observe firsthand the marks -- the machining
processes that go into the production of tools; and I also
received on-the-job training, which included thousands of
examinations.
Q. Now, in this on-the-job training, did you have just one
person who was training you, or is there more than one?
A. No, there was more than one.
Q. And did that on-the-job training involve the examination of
evidence from actual cases?
A. Yes, sir, it did.
Q. When you did that, were you actually making reports or
James Cadigan - Direct
testifying in court?
A. No. I was just examining the evidence.
Q. Just so you could learn?
A. Yes.
Q. Now, during any period of your training, were you
testifying in court?
A. During my training? No, sir.
Q. Now, at the end of that training, did you become qualified
within the FBI and allowed to conduct examinations on your own?
A. Yes, sir.
Q. And since then, have you become involved yourself in
training others to become firearms and tool marks examiners?
A. Yes, sir, I have.
Q. We just met someone named Brett Mills a few minutes ago.
Is he one of the people you trained?
A. Yes, sir.
Q. Doing the same thing now that you did 20 years ago?
A. Yes.
Q. Now, in addition to helping to train new examiners, have
you done any teaching or lecturing in your field?
A. Yes. In the field of tool mark identification, I've given
hundreds of lectures on various aspects of tool mark
identification to federal, state, and local law enforcement
agencies as part of courses of study that involve the
identification of automobiles and the identification of stolen
James Cadigan - Direct
automobiles and other aspects.
Q. Have you also lectured at training seminars at the FBI
training academy?
A. Yes. I conduct one in-service training class at Quantico a
year for our agents in stolen-car investigations, a significant
portion of which involves tool mark identification.
Q. Now, earlier you mentioned that you have several areas of
responsibility in your current work, tool mark examination,
firearms, and serial number restoration?
A. Yes, sir.
Q. When you first completed your training back in 1977, did
you have any area in particular that you specialized in?
A. Yes. For the first approximately 11 years of my stay in
the laboratory, I did nothing but tool-mark-identification-type
examinations.
Q. And in the course of those 20 years since you first became
an examiner with the FBI, approximately how many tool mark
comparisons have you done?
A. Thousands.
Q. Have any of those involved the comparison of marks left by
a spinning drill bit?
A. Yes.
Q. On more than one occasion?
A. Yes.
Q. So this is not the first case in which you've done that
James Cadigan - Direct
kind of examination?
A. No, sir, it's not.
Q. Now, you were explaining earlier that there are two types
of marks that a tool can leave. You mentioned impressions and
striations. Is that right?
A. Yes, sir.
Q. "Striations" is just a fancy word for scratches?
A. They can be.
Q. Are there -- what kind of marks does a spinning drill bit
leave?
A. It would leave striations or scratches from the cutting of
the blade of the screwdriver -- I'm sorry -- did you say
screwdriver?
Q. I'm sorry. I may have. If I did, I meant to say drill
bits. What kind of marks does a drill bit leave?
A. A drill bit would leave striations left by the cutting of
the blade and the tip of the drill bit.
Q. Now, you mentioned striations when I asked the wrong
question about screwdrivers and other tools. Are there other
tools that leave striations?
A. Certainly. There would be screwdrivers, a crowbar, if a
crowbar was used, among others.
Q. Is there anything particularly different or difficult about
examining the mark left by a spinning drill bit?
A. No. It's just another one of the kinds of examinations
James Cadigan - Direct
that fit in under the umbrella of tool mark identification.
Q. You apply the same practices and ideas in doing your
examination?
A. Yes, sir.
Q. Now, you've testified in court before today. Is that
correct?
A. Yes, sir.
Q. About how many times have you testified in court as a tool
marks examiner?
A. Approximately 250 times.
Q. When I say "tool marks," I should say including tool marks
and the other areas of specialization.
A. Yes, sir.
Q. Now, earlier in your testimony, you gave an example of a
tool mark examination involving a window sill that had been
pried open or a window that had been pried open by a
screwdriver. Using that example, could you explain a little
more about how you would go about doing your analysis?
A. Yes. In the case in which a window sill was pried open by
a screwdriver tip or screwdriver itself, I -- the best way to
examine that particular case would be if you could remove the
portion of the window sill that had the impression on it and
then taking the particular screwdriver in question, make test
impressions, normally in lead, because lead is very soft, but
scraping test impressions of the screwdriver to see what kinds
James Cadigan - Direct
of striations and marks the screwdriver blade would leave and
then compare, using a comparison microscope, the tool marks
left by the screwdriver blade with the marks left on the window
sill.
Q. Let me ask you a couple of questions about that. You
mentioned that you look at the marks left by the blade in this
test impression. First of all, why do you make a test
impression, rather than just look at the blade itself and
compare it to the mark left on the window sill?
A. Well, as part of your examination, of course, you would
look at the blade to see if there was any trace evidence and
other considerations. And then you would make the test
impressions so that you could compare like items, the
impression of the screwdriver blade with the impression on the
window sill.
Q. Sort of like looking at a photograph with a photograph,
rather than a negative?
A. Yes.
Q. Now, you also mentioned that -- you mentioned a few times
already these striations or scratches that are left behind that
you look at. What produces those scratches?
A. Well, there can be two sources for the scratches for the --
or actually one source for the scratches. That would be left
by the screwdriver blade as it scraped across the surface, the
tip of the blade going across the top of the window sill.
James Cadigan - Direct
Q. Are you talking about just if the blade has a chip in it?
A. Right. In order to know whether or not a particular
screwdriver blade was individual, as opposed to a class
characteristic, class characteristic being the same size -- for
instance, a screwdriver bit (sic) that was 1/4 of an inch wide.
That would be a class characteristic, because a whole class of
screwdriver blades would have that same width.
Then there are individual tool marks that the examiner
looks at, and that usually comes from the manufacturing
processes that go into the production of the screwdriver blade
and also the subsequent use and abuse of the tool. For
instance, a chip in the blade would make it very unique.
Q. Now, are all of these things that can happen to a blade --
you mentioned the manufacturing process, subsequent use and
perhaps a chip coming out -- are all of those things visible to
the naked eye?
A. No, not always.
Q. So in the course of your work, do you use a microscope?
A. Yes, sir.
Q. Does that help you see the tiny scratches that can also be
left behind by a blade?
A. Yes, sir.
Q. Now, you told us earlier that you did tool mark analysis in
this case. Can you in general terms first explain to the jury
what it is that you did?
James Cadigan - Direct
A. Yes. I received a padlock that had some drill-bit
impressions in it, and I was given two drill bits; and the
request was to determine whether or not either one of the two
drill bits made the impressions contained on the padlock.
MR. TIGAR: Your Honor, may I approach the bench?
THE COURT: Yes.
Members of the jury, feel free to stand and stretch
when we're up here at the bench.
(At the bench:)
(Bench Conference 68B2 is not herein transcribed by court
order. It is transcribed as a separate sealed transcript.)
James Cadigan - Direct
(In open court:)
THE COURT: I will give you these chances to stretch
when we have these little conferences, which won't be very
often. But please don't talk while you're doing that.
Proceed.
MR. ORENSTEIN: Thank you, sir.
BY MR. ORENSTEIN:
Q. Now, when you received the padlock, did you measure any
parts of it?
A. Yes. There were two drill-bit impressions in the padlock,
and I measured the diameter of them to determine what class of
drill bits might have produced the marks on the padlock.
Q. When you refer to "class," what are you referring to?
A. As I mentioned before, in a -- examining a case in which
drill bits are used, one of the first class characteristics, if
you can determine it, that you would be interested in would be
the diameter of the drill bit, because if you had -- for
instance, if the impression was 1/4 of an inch and you had
drill bits that were 1/2 inch in diameter, you would
immediately know they couldn't have done it, and then you would
move on to your next case.
Q. What did you find when you measured the holes in the
padlock?
A. They were 1/4-inch in diameter.
Q. So you knew you didn't have to bother with drill bits of
James Cadigan - Direct
other sizes; is that correct?
A. Yes, sir.
Q. Now, what -- what, if anything, did you observe about the
holes in the padlock?
A. Well, there were two of them. There was one that was a
very shallow in depth, and then there was a second one that was
much further and deeper into the lock cylinder of the padlock
itself.
Q. And from those observations, did you see anything that you
would characterize as a tool mark worth examining?
A. Yes. In both impressions.
Q. Mr. Cadigan, I'd like you to look on the table in front of
you and see if you can find Government's Exhibit 126 in
evidence, which is a padlock.
Do you have it, sir?
A. Yes, sir, I do.
Q. Do you recognize what that is?
A. Yes, I do. This is the padlock that I was given to examine
in this case.
Q. Now, did you do anything to the padlock upon receiving it
to facilitate your examination?
A. Yes. I did two things to the lock. There was a hasp
portion that was attached. I had that removed to facilitate my
examinations; in other words, to allow me to put it under a
comparison microscope. And then I also cut off six portions or
James Cadigan - Direct
several portions of the lock to allow me to look at and remove
the lock cylinder.
Q. Now, why were you interested in looking at the lock
cylinder?
A. Because the lock cylinder, which is the portion of the lock
that I am indicating here with my pen, where the key goes into
the lock that turns the -- to open the padlock -- that is where
the two impressions that I saw from the drill bit were
contained. And I needed to look at those very closely under
the microscope.
Q. Did you prepare a series of photographs to illustrate your
testimony about how you disassembled that lock to remove the
lock cylinder?
A. Yes.
MR. ORENSTEIN: If I may ask Agent Tongate to assist,
your Honor, I would like to show the witness Exhibit 246,
Government's Exhibit 246.
THE COURT: Yes, you may assist.
MR. ORENSTEIN: If you could first show the witness
the exhibit.
BY MR. ORENSTEIN:
Q. Agent Cadigan, do you recognize that?
A. Yes, I do.
Q. That is the chart that you prepared?
A. Yes, it is.
James Cadigan - Direct
MR. ORENSTEIN: Your Honor, we'd move the admission
for demonstrative purposes of 246.
MR. TIGAR: No objection, your Honor.
THE COURT: All right. 246 is received and may be so
used.
BY MR. ORENSTEIN:
Q. Now, Agent Cadigan, actually, it's not very large. Perhaps
you could just hold it up -- Agent Cadigan, if you could hold
it up and just explain to the jury what's depicted in these
photographs and what it shows about your work here?
A. These are three photographs that I had made of the padlock
and its various stages of disassembly as it was taken apart.
The first one to your far left is the lock in its
unremoved condition.
The second one shows how many of the -- how much of
the lock I had to remove in order to expose the lock cylinder,
which again is that separate portion which accepts the key
which turns and opens the lock itself. That's this area in
here.
And then a much closer photograph of the lock cylinder
itself showing the -- one of the impressions as you can see,
the drill bit went all the way into the lock almost, breaking
through but not quite, at the bottom of the lock.
Q. So specifically in Photograph No. 3 on that chart, where is
the tool mark that you're referring to?
James Cadigan - Direct
A. One of them was contained in the bottom here, the bottom of
the lock cylinder, where the -- As the drill bit went through,
it then, as I mentioned, almost broke through but not quite.
And there is a second one which is not immediately
apparent in this particular photograph in the shallow portion
up in the top of the lock cylinder.
Q. Now, the shallower mark is not apparent in that photograph.
Is that correct?
A. Yes, sir, that is correct.
Q. You could just put that back on the easel for the time
being.
Let me show you on your screen, Agent Cadigan -- I'd
like to use the computer, please -- Exhibit 1841. Have you
seen that before?
A. Yes, sir.
Q. What is that in that photograph?
A. Government's Exhibit 1841 is another photograph that I had
taken of the lock cylinder, the top portion of it.
Q. Does that show the shallow mark that you referred to?
A. Yes, sir, it does.
MR. ORENSTEIN: Government offers 1841.
MR. TIGAR: May I examine, your Honor?
THE COURT: You may.
VOIR DIRE EXAMINATION
BY MR. TIGAR:
James Cadigan - Voir Dire
Q. Agent Cadigan, my name is Michael Tigar. I'm one of the
lawyers appointed to help Terry Nichols.
You're showing us here -- you're looking at, the
Government has offered, something that shows some marks on a
lock. Is that correct?
A. Yes, sir.
Q. And is it your understanding that that lock was recovered
at a quarry in Marion, Kansas?
A. I'm not exactly sure where it came from, but I know it was
recovered.
Q. And do you know where it was kept in between the time it
was recovered and the time it came to the FBI Laboratory?
A. No, sir.
Q. Do you know whether or not the sheriff who investigated put
that lock onto a property report?
MR. ORENSTEIN: Objection, your Honor.
THE COURT: What's the objection?
MR. ORENSTEIN: Relevance to the voir dire.
THE COURT: Overruled.
THE WITNESS: No, I have no idea where it was before I
got it.
BY MR. TIGAR:
Q. Well, is it important to you as a tool marks examiner to
know who has had the opportunity to change, tamper with, or
alter material that you're looking at before you look at it?
James Cadigan - Voir Dire
A. The concern that I have when I receive evidence is whether
or not I can identify or compare the marks that are contained
on that evidence.
Questions as to where those -- how those marks could
have gotten there are not my ability to resolve.
Q. I understand you can't resolve them, sir. I'm asking you
as a man with this experience in the FBI, do you care whether
somebody else has had the opportunity to change or alter the
thing before you do your examination?
A. Care?
Q. Does it matter to you in your expertise, sir?
A. It wouldn't affect my examination.
Q. All right. Because in other words, what you're prepared to
do -- what you do is you take it in whatever state it is when
it arrives in your laboratory and then compare it with
something else that's also arrived in your laboratory. Is that
right?
A. Yes, sir, that's what I can do.
Q. And it's your testimony that it's somebody else's business
what happened to it before it got to you. Is that right?
A. Certainly.
MR. TIGAR: With that understanding, I have no
objection to this picture, your Honor.
THE COURT: All right. Then we may proceed. And the
exhibit is?
James Cadigan - Voir Dire
MR. ORENSTEIN: 1841, your Honor.
THE COURT: 1841?
MR. ORENSTEIN: Yes, sir.
THE COURT: Received.
MR. ORENSTEIN: Perhaps we could move the easel out of
the jury's way while this is up.
Thank you.
DIRECT EXAMINATION CONTINUED
BY MR. ORENSTEIN:
Q. You mentioned that this photograph shows the shallower --
well, actually, does it show both of the areas of tool marks
that you saw?
A. Yes, sir, it does.
Q. Can you point out each of them?
A. Yes. This area here and this area here is the shallow
portion. In the photograph you can see striations or lines
that were left by a drill bit.
Then the second area of my concern is in this area
down here, in which the drill bit almost went all the way
through the lock cylinder, down in this fashion and then -- but
did not go all the way through.
Q. Now, this particular photograph, the focus is on the
shallower mark? Is that correct?
A. Yes, sir, the shallower mark, which is this area here.
Q. Did you also take photographs of the mark left in the
James Cadigan - Direct
deeper area?
A. Yes, sir, I did.
Q. Did you prepare a series of photographs to show how you can
follow on where you're going?
A. Yes, sir.
MR. ORENSTEIN: I'd like with Agent Tongate's
assistance, please, to show the witness Exhibit 152.
BY MR. ORENSTEIN:
Q. Agent Cadigan, do you recognize that?
A. Yes, sir, I do.
Q. You're turning it right side up?
A. Yes, sir.
Q. Is that a chart that you prepared showing photographs that
you had taken of the deeper area in the drill -- in the drilled
lock?
A. Yes, sir, it is.
MR. ORENSTEIN: Government offers Exhibit 152, please.
THE COURT: Do you want to approach?
MR. TIGAR: No. I can just see it from here, your
Honor.
No objection.
THE COURT: All right. 152 is received, may be
displayed.
MR. ORENSTEIN: Thank you, sir.
Will you put that up on the easel, please.
James Cadigan - Direct
BY MR. ORENSTEIN:
Q. Now, for the record, Agent Cadigan, there are four
photographs on that chart. Is that correct?
A. Yes, sir.
Q. Would you start with the photograph on the far left side of
the chart and describe for the jury what it is that these
photographs show.
A. These photographs show -- first photograph on the far left
shows the lock as it's still in its assembled condition.
The second one to its right is a picture of the lock
cylinder taken at 10 power.
The third picture, as it's labeled, is at 20 power.
And then the fourth picture is a picture -- is part of
the lock cylinder taken at 40 power.
And what this does is that the second picture or the
one labeled 10 power shows the shallow mark; and then as we
travel further into the lock cylinder, we see the marks that
were contained at the bottom of that lock cylinder.
Q. So this is a progression of photos that shows you how to
get down to the bottom of that lock cylinder and see the deeper
tool mark impressions?
A. Yes, sir.
Q. Let me show you on your screen, if I may, Government's
Exhibit 1842. Do you recognize that?
A. Yes, sir.
James Cadigan - Direct
Q. Is that simply a single photo that is the same photo as on
the chart on the far right?
A. Yes, sir.
MR. ORENSTEIN: Government offers Exhibit 1842 just
for purposes of discussing that photo with the witness.
MR. TIGAR: No objection, your Honor.
THE COURT: All right. 1842 is received.
MR. ORENSTEIN: And, Agent Tongate, if I could ask you
to move the easel once again.
Thank you.
BY MR. ORENSTEIN:
Q. Now, using the Photograph 1842, can you describe for us
what the tool marks are that you looked at?
A. Yes. In examining the bottom part of this lock cylinder, I
noticed that there were marks left in this area here and a
portion of the lock cylinder here and also over here.
As you can see and as I mentioned before, when the
drill bit went deep into the lock cylinder, it almost broke
through but not quite; and that's why there is no continuity
between this portion here and this portion here and this
portion here. They're slightly fractured and pushed away from
each other from the action of the drill bit going into the lock
cylinder.
Q. Now, in addition to the fracturing or the discontinuity
that you just described, did the pressure from the bit cause
James Cadigan - Direct
this not to be a flat surface?
A. Yes, that's correct.
Q. Now, you described before that you compared this mark to a
drill bit. Is that correct?
A. Yes.
Q. And which drill -- do you have Exhibit 151B in front of
you?
A. Yes, sir, I do.
Q. By the way, does that have a Q number on it, 151B?
A. Yes.
Q. Did you assign -- when you received the bit, did it already
have a Q number as part of a larger group of evidence?
A. Yes, sir.
Q. And was that Q2898?
A. Yes, sir.
Q. Did you assign a sub-number to this particular bit?
A. Yes.
Q. Is that 2898B?
A. Yes, sir.
Q. Now, did you examine the tip of that drill bit, Exhibit
151B?
A. Yes, I did.
Q. And was -- let me show you, if I may, Exhibit 155 on your
computer screen. Do you recognize that?
A. Yes, sir.
James Cadigan - Direct
Q. What is that?
A. This is a picture of the drill bit.
Q. And that is a picture of 151B?
A. Yes, sir.
MR. ORENSTEIN: Government offers Exhibit 155.
MR. TIGAR: May I inquire?
THE COURT: You may inquire.
VOIR DIRE EXAMINATION
BY MR. TIGAR:
Q. Once again, sir, do you know when the drill that is
pictured in Government's Exhibit 155 was recovered?
A. No, sir. Exactly when it was recovered, no, I do not.
Q. Do you have some general idea?
A. Well, it would have had to have been before I received it,
which was in July.
Q. Yes, it was. You got it in July?
A. Yes, sir.
Q. And did -- were you told that it had been recovered
sometime in May?
A. I don't recall if I was told when it was recovered.
Q. Certainly recovered after April 19, 1995. Correct?
A. Yes, sir.
Q. All right. And when you -- when you first looked at the
drill that's pictured there, was it in a box with other drills,
other drill bits?
James Cadigan - Voir Dire
A. No, sir.
Q. It had been taken out and given to you; correct?
A. Yes, sir.
Q. To be sent to you. Now, do you know the date on which the
lock, the pictures of which we're looking, was first recovered?
A. No, sir.
Q. Do you understand it to be the fall of 1994?
MR. ORENSTEIN: Objection to the relevance of the
questions about the lock.
THE COURT: Sustained.
BY MR. TIGAR:
Q. When was this picture taken?
A. It would -- I'm not exactly sure the exact date that it was
taken; but it was taken after I received the drill bit.
Q. All right. Now, when -- in a little while -- you're here
today to show us some other comparison pictures; right?
A. Yes, sir.
Q. Now, when you do a comparison of pictures like you're going
to do, is it important to you how much time elapsed between the
time a tool mark was left and the time the tool that might have
made the mark is recovered?
MR. ORENSTEIN: Objection to the relevance to this
exhibit.
THE COURT: Overruled.
THE WITNESS: Okay. I'm sorry. Could you repeat
James Cadigan - Voir Dire
that.
BY MR. TIGAR:
Q. Yes, sir. When you're going to look at some pictures,
comparing the mark made by a tool and a tool that might have
made the mark, it is -- is it important to you to know how much
time has elapsed between the time the tool mark was made and
the time the tool that might have made the mark was recovered?
A. Well, first of all, I don't do comparisons by pictures. I
look at actual -- the actual marks. I take the pictures after
I do the comparisons to refresh my recollection.
Q. Yes, sir. My question was asked deliberately because of
the way you're going to do that. I understand what you do. My
question is very simple: Is it important to you, the time?
A. Is it important to know what time? Not necessarily, no.
Q. Okay. When you say "not necessarily," is it ever important
to you to know how much time has elapsed between the time a
mark was left and the time that a tool that might have made the
mark that you're going to look at was recovered? Is it ever
important to you?
A. I can't think of a time when it would be.
Q. All right. Well, let me suggest: Is it important to you
to know how much use the tool that might have made the mark has
had between the time that a mark was left somewhere and the
time you get the tool?
MR. ORENSTEIN: Your Honor, I object.
James Cadigan - Voir Dire
THE COURT: Your objection is overruled. This is
foundational. I'm going beyond voir dire because we haven't
gone through the foundational pattern for the witness to be
able to do it. I thought you would understand that.
Proceed.
THE WITNESS: I'm sorry. The question is?
BY MR. TIGAR:
Q. Yes, sir. If -- this is an example. If a tool mark is
made on a window sill by a screwdriver in October of a certain
year and somebody -- and you can preserve that window sill so
it -- you know, so it can't be altered and then sometime six
months later somebody finds a screwdriver that might have made
that mark, is it important to you to know what use that
screwdriver has had in between October and the time that you
recover it?
A. No.
Q. You don't consider the fact that somebody might have used
the screwdriver in the meantime and altered it in some way?
A. Well, the --
Q. Do you, or don't you?
A. If that was the case, then that would change the mark left
by that tool, and then you couldn't make a conclusion one way
or another.
Q. I understand. But you understand that over time, tools get
used; right?
James Cadigan - Voir Dire
A. Certainly. That's what gives them their individuality and
allows you to identify them, yes, sir.
Q. And in the time that tools get used, they get changed in
different ways; right?
A. They can. Yes, sir.
Q. All right. Now -- and it's your testimony that other than
knowing when -- it had to be sometime after April 19. You
don't know when this particular drill that we're going to see a
picture of was recovered; is that right?
A. That's correct.
Q. And you don't know what use it had between, let's say, the
fall of '94 and the time that you took this picture. Correct?
A. That is correct.
Q. All right.
MR. TIGAR: Subject to that understanding, your Honor,
no objection.
THE COURT: All right. The exhibit is received. 155.
MR. ORENSTEIN: Excuse me. Now that -- if we could
display that to the jury, please.
DIRECT EXAMINATION CONTINUED
BY MR. ORENSTEIN:
Q. Now that Exhibit 155 is on the screen, can you point out to
us what you were looking at in conducting your examination when
you looked at that drill bit and the impressions it made?
A. Yes. In examining the tip of this drill bit, the cutting
James Cadigan - Direct
edges are found here and here. And as I looked at it, I
noticed that there was wear on both blades.
Q. Is that the kind of wear that produces the striations you
were talking about before?
A. Yes, sir.
Q. Now, you marked before you had just put them away -- you
had marked two separate lines there?
A. Yes. Here and here. Those are the two cutting edges of
the drill bit.
Q. And does each cutting edge produce a different pattern of
striations?
A. Yes, it does.
Q. Now, did you do anything with this drill bit itself to
conduct your examination?
A. Yes, sir, I did.
Q. What did you do?
A. Upon receiving the drill bit, I made impressions in lead to
determine what kind of tool marks that this particular drill
bit left and to enable me to compare those tool marks left by
this drill bit, Government's Exhibit 151B, with the tool marks
that were present on Government's Exhibit 126.
Q. And 126, you were just holding it up. That's the lock?
A. Yes, sir.
Q. Let me ask you if you have in front of you Exhibit 244?
MR. ORENSTEIN: May I approach to assist, your Honor?
James Cadigan - Direct
THE COURT: Yes.
MR. ORENSTEIN: I thought I could assist, your Honor.
Oh. Thank you.
BY MR. ORENSTEIN:
Q. Do you have 244 before you right now?
A. Yes, sir, I do.
Q. Do you recognize it?
A. Yes, I do.
Q. What is Exhibit 244?
A. 244 is one of the -- is an impression I made with
Government's Exhibit 151B. It's the lead that I actually made
the impression in and that I used in my comparisons.
Q. Do you recognize that in particular as the particular piece
of lead in which you made an impression from Exhibit 151B?
A. Yes, sir.
Q. And how do you recognize it?
A. It bears my initials, and also on the -- the item itself,
it has the designation "rusty bit."
Q. Is that because you had more than one bit and this one
happened to have some rust on it?
A. Yes, sir.
MR. ORENSTEIN: Government offers Exhibit 244.
MR. TIGAR: I'm sorry, your Honor. May I just see it?
THE COURT: You may, yes.
MR. TIGAR: May I inquire?
James Cadigan - Direct
THE COURT: Yes.
VOIR DIRE EXAMINATION
BY MR. TIGAR:
Q. How many drill-bit impressions did you make with the tool
151B?
A. I think it was approximately three or four.
Q. All right. And is this the only one you brought with you?
A. It's the only one that I have with me right now, yes, sir.
Q. And in connection with making your comparison, did you make
other impressions?
A. Yes, did I.
Q. In lead?
A. Yes, I did.
Q. And did you do that with 151B, or -- you did that with
other drill bits. Is that right?
A. Yes, sir.
Q. How many other drill bits?
A. One other drill bit.
Q. All right. How many drill bits did you have for purposes
of making impressions?
A. Two.
Q. Didn't you have 75 others?
A. I was given two.
Q. I understand you were given two. Did you have at the time
you were working on this project 75 other drill bits?
James Cadigan - Voir Dire
A. No, sir.
Q. It's your testimony you never had 75 drill bits that you
had obtained for purposes of working on this matter that you're
testifying about today? Is that your testimony?
A. I obtained 75 drill bits later, after I conducted this
examination.
Q. You did.
A. Yes, sir.
Q. Well, did you make any impressions in lead with the 75
other drill bits?
A. Not in lead. They were in brass and aluminum.
Q. And did you bring those today?
A. No, sir.
Q. Why did you make them in brass -- well --
THE COURT: This is voir dire.
MR. TIGAR: This is voir dire.
Your Honor, I just realized that I was about to get
into my cross-examination. I'll save it.
We consent to the admission of this with that
understanding.
THE COURT: All right.
MR. TIGAR: Sorry.
THE COURT: 244 is received.
DIRECT EXAMINATION CONTINUED
BY MR. ORENSTEIN:
James Cadigan - Direct
Q. Now, it's a small item. Could you just hold it up to the
jury to indicate what you're looking at?
A. Yes. This piece of lead.
Q. And that's right now encased in a Baggie that has the
exhibit sticker?
A. Yes, sir, it is.
Q. Obviously it's too small for the jury to look at it up
close. Did you take any photographs of that impression?
A. Yes, sir.
Q. And did you prepare a similar chart showing varying
magnifications of that impression?
A. Yes, sir, I did.
Q. With Agent Tongate's assistance, I'd like to show you
Exhibit 153. Is that the chart that you prepared?
A. Yes, sir.
Q. Does it show varying magnifications of the drill bit that's
just been introduced into evidence?
A. Yes, sir.
Q. I'm sorry. The drill-bit impression?
A. Yes, sir.
MR. ORENSTEIN: Government offers Exhibit 153.
MR. TIGAR: No objection, your Honor.
THE COURT: Received. May be displayed.
BY MR. ORENSTEIN:
Q. Now, Mr. Cadigan, starting with the photograph -- and for
James Cadigan - Direct
the record, there are four of them on that chart -- starting
with the one on the extreme right-hand side, would you describe
for the jury what is displayed in this chart?
A. This is a photograph of the piece of lead that I used to
make my drill-bit impression.
Second one at slightly higher magnification, then a
third and then a fourth at the listed magnifications, showing
you the drill-bit impression that I used to make my comparison
in this case.
Q. So again, we're just getting a closer and closer view of
the test impression?
A. Yes, sir.
Q. Are these the same magnifications that you used in the
photographs of the padlock hole?
A. Yes, sir.
Q. Now, let me show you on your screen Exhibit 1843. Is that
just a single copy of the photo at the far left side of the
chart that we were just looking at?
A. Yes, sir.
Q. That's once again the 40-power magnification of the test
impression?
A. Yes, sir.
MR. ORENSTEIN: Government offers Exhibit 1843.
MR. TIGAR: No objection, your Honor.
THE COURT: Received.
James Cadigan - Direct
BY MR. ORENSTEIN:
Q. Now that the photograph is before the jury, can you
describe the striations that you looked at on the test
impression?
A. Yes. In that particular photograph which shows the
drill-bit impression I made with Government's Exhibit 151B, the
comparisons I did looked at these striations that are all along
here that are going in a circular fashion and also the
striation marks that are here that are also going in a circular
fashion and comparing those with the ones that were found in
the lock cylinder.
Q. Now, when you made Exhibit 244, which is the photograph in
this item, was that on a flat surface?
A. This was, yes, sir.
Q. Now, once you had made these photographs -- and these are
just for illustrative purposes -- did you compare the padlock
and the test impression?
A. Yes, sir, I did.
Q. How did you go about comparing them?
A. I placed the lock cylinder under the comparison microscope
and looked at the tool marks that were present in that lock
cylinder and compared them to the marks that I had produced
with Government's Exhibit 151B to determine whether or not that
drill bit made the impressions contained on that lock cylinder.
MR. TIGAR: Your Honor, may that answer be stricken?
James Cadigan - Direct
THE COURT: Yes. It is stricken.
MR. ORENSTEIN: Your Honor, may I approach for a
moment?
THE COURT: No.
BY MR. ORENSTEIN:
Q. Now, in conducting your comparison, did you use an
instrument?
A. Yes, I did.
Q. What instrument did you use?
A. I utilized a comparison microscope.
Q. Can you describe what a comparison microscope does?
A. Simply a comparison microscope is just two microscopes
joined optically by a series of lenses and mirrors. Also, it
has a stereoscopic viewer, which means an examiner can use both
of his items to look at two items that are side by side, and
what he sees when he looks into the microscope is a circle --
circular area that has a dividing line in the middle of it.
And on one side of that area is -- would be marks from the left
side of the microscope, and the other side of the hairline
would be the marks from the right side of the comparison
microscope.
Q. Did you do that with the test impression on one side and
the tool mark in the lock on the other side?
A. Yes, sir.
Q. Did you prepare a chart or photograph to illustrate what
James Cadigan - Direct
you saw when you looked through the comparison microscope?
A. Yes.
Q. Do you have before you Exhibit 157?
A. Yes, I do.
Q. And what is 157?
A. 157 is a photograph that I had prepared that showed what I
saw under the microscope when I examined the impression on the
lock cylinder and the test impression that I made with
Government's Exhibit 151B.
MR. ORENSTEIN: Your Honor the Government offers
Exhibit 157.
MR. TIGAR: I don't see it on my screen, your Honor.
If I could just look at it.
THE COURT: Yes, you may.
MR. TIGAR: Yes, your Honor, it's what I've seen. No
objection.
THE COURT: 157 is received, may be used.
MR. ORENSTEIN: And may I retrieve it to display on
the ELMO?
THE COURT: Yes.
MR. ORENSTEIN: Thank you.
BY MR. ORENSTEIN:
Q. Now, Agent Cadigan, this photo has two halves. Is that
correct?
A. Yes, sir.
James Cadigan - Direct
Q. Let me first show you the half -- the right-side half. And
I'll zoom out here.
What do we see on the right-hand side of this
photograph?
A. On the right-hand -- on this particular portion of the
photograph that's exposed is a portion of the tool marks made
by the Government's Exhibit 151B, by the drill bit that I made
in the test impression in lead.
Q. So that's the test impression; correct?
A. Yes, sir.
Q. All right. Now, if we open up the left side -- let me zoom
in a little bit there. Does that show the -- what you saw on
the other half of the comparison microscope?
A. Yes. This portion of the photograph shows tool marks that
were -- that are at the bottom of the lock cylinder from the
padlock.
Q. Now, if we open up both sides of this exhibit, do we see
what you saw when you looked through the comparison microscope?
A. You see a portion of it, yes, sir.
Q. And is that -- does that illustrate what you saw when you
looked through the comparison microscope?
A. Yes, sir.
Q. Now, do you see any areas of similarity from one side to
the other?
A. Yes, sir, I do.
James Cadigan - Direct
Q. And can you point out the similarities that you saw?
A. Certainly. As we can see from the striations that are left
by the drill bit -- continue over onto the lock cylinder in
these areas. And those are tool marks that are contained on
the lock cylinder again on the left side and the drill-bit
impression on the right side.
Q. So these striations on one side from the test impression
you see is also reflected on the other side in the impression
in the lock; is that correct?
A. Yes, sir.
MR. ORENSTEIN: Thank you, Agent Cadigan.
Your Honor, I have nothing further on direct.
THE COURT: All right. Mr. Tigar?
MR. TIGAR: Your Honor, we would respectfully
request -- I made a motion to strike most inartfully. Would
the Court instruct the jury as to the significance of that?
THE COURT: Well, what the motion to strike was about
was the witness giving an opinion with respect to comparison,
and I struck that because what is permitted here is to show
what he saw through the microscope and the comparison
microscope and then with his experience and training the
similarities that he pointed out.
MR. TIGAR: Thank you, your Honor.
CROSS-EXAMINATION
BY MR. TIGAR:
James Cadigan - Cross
Q. Agent Cadigan, you have been a special agent for how many
years, sir?
A. 26 years tomorrow.
Q. 26 years. I'm going to show you something that's been
furnished to us in discovery, if I may.
Is that a biography of you, sir?
A. It is one of the CV or curriculum vitae that I prepared,
yes, sir.
Q. Yes, sir. And in there you list the fact that you have a
bachelor of science from the University of Maryland. Is that
correct?
A. Yes, sir.
Q. And you list that you have testified in 250 court cases.
Is that correct, sir?
A. Yes, sir.
Q. And you say that you're a member of the AFTE?
A. The Association of Firearms and Tool Marks Examiners, yes,
sir.
Q. And the 250 court cases in which you've testified: Are
those in the areas of -- all the areas of tool marks?
A. No, they are in tool mark identification, firearms
identification, and serial number restoration only.
Q. Okay. In terms of spinning drill bits, how many cases have
you testified in?
A. None.
James Cadigan - Cross
Q. This is your first time out?
A. This is my first time testifying about the identification
of a drill bit. It's not the first identification I've made
with a drill bit.
Q. I understand that. You testified you made others. This
case is your first testimony. Now, in that case you list that
you did the firearms work in the Branch Davidian case; is that
correct, sir?
A. That is correct.
Q. And that was -- that involved a great deal of very
elaborate ballistics work on your part; correct?
A. It involved firearms identification work, yes, sir.
Q. Are there similarities between firearms identification and
drill-bit identification?
A. Firearms identification is one subset of the general
umbrella term "tool mark identification."
Q. So the answer to my question are there similarities: Is
the answer yes, or is the answer no?
A. Certainly, it's part of it.
Q. Thank you. Now, in your biography there, you do not list
your participation in the Ruby Ridge case. Is that correct?
A. That is correct, I guess.
Q. Will you look at it?
A. No, I don't.
Q. Why did you leave it off?
James Cadigan - Cross
MR. ORENSTEIN: Objection to relevance.
THE COURT: Sustained.
BY MR. TIGAR:
Q. When you first got this drill bit in, you said that you had
examined other drill bits in the past. Is that right?
A. Yes, sir.
Q. Now, you told us earlier on the voir dire that you had gone
out and gotten 75 other drill bits; is that correct?
A. It's more than 75, but 75 from one manufacturer, yes, sir.
Q. Oh, 75 from one manufacturer. And how many total drill
bits did you get?
A. Approximately 150.
Q. Now, the purpose of that was to help you in your analysis;
correct?
A. What was?
Q. To get all the 150 drill bits.
A. No, sir.
Q. What was the purpose of it?
A. The purpose was to -- it was part of initiating a study in
the area of drill-bit manufacture and the tool marks left by a
drill bit.
Q. And did you think it was necessary to initiate that study?
A. I thought in reading the literature that is available in
the field of tool mark identification, I noticed that there
were not many studies concerning tool mark identification
James Cadigan - Cross
utilizing drill bits, and I thought that this would be a good
area to initiate a study.
Q. All right. So you -- and in fact, you made some notes that
you thought that you were going to purchase a Microsoft program
called Mathematica. Correct?
A. I didn't make, no, sir.
Q. Oh, didn't make that note? Did you make notes concerning
the use of a Poisson figure, Poisson equation?
A. No, sir.
Q. Did you attempt to -- well, let me make -- let me ask you
some about some differences here. A ballistics case involves
looking at striations, doesn't it?
A. If you mean a firearms identification as opposed to
ballistics, ballistics being the study of the motion of
projectiles or projectiles in motion, firearms identification
would be the study of striations left on a bullet from the
barrel of a firearm.
Q. Exactly. And in order to make the striations -- in order
to understand the striations, you have to understand how the
striations get made in the firearm; correct?
A. Yes, sir.
Q. And in a 4-inch barrel, Smith & Wesson revolver, if you get
a bullet that is a projectile that's fired from that and you
put it under a microscope, you can see striations; correct?
A. Yes, sir.
James Cadigan - Cross
Q. And how many turns or twists does the projectile make as
it -- as it travels the 4-inch length of the barrel of the
Smith & Wesson?
A. Well, that would depend on the rate of twist of the barrel.
Some barrels turn the -- the bullet would turn once every
8 inches, once every 12 inches, once every 16. It depends on
the manufacturer.
Q. All right. But in any case, it would be very rare for a
bullet coming out of a Smith & Wesson revolver to have made
more than one complete revolution before it leaves the end --
the business end of the gun. Right?
A. I don't know, but --
Q. Well, you said if it turns once in 8 inches or once in
12 -- those are reasonable numbers, aren't they?
A. They are some of the rates of twist that are utilized by
manufacturers, yes, sir.
Q. All right. And so that in those cases, at any rate, the
bullet would not have made one complete revolution by the time
it gets out the barrel. Correct?
A. That is correct.
Q. Now, how fast is the bullet being fired from a typical
Smith & Wesson revolving? How many rpms?
A. I don't know.
Q. All right. And we could compute that, couldn't we, by
asking ourselves what the speed was, if we knew the speed at
James Cadigan - Cross
which it left the barrel --
A. Correct.
Q. Yes, sir and then if we knew how many revolutions it would
make in an 8-inch or 12-inch area, then we could compute that.
Right?
A. I guess so.
Q. Okay. But you've never done it?
A. No, sir.
Q. Now, that Makita drill that's in front of you -- how fast
does the drill rotate -- that is the right term? Is it
"rotate" or "revolve"? I never know. But spin. How about
that?
How fast does the drill bit spin on that drill when
it's being used in the -- at the rated capacity?
A. I don't know.
Q. Well, would you agree with me, sir, that a drill-bit
impression -- let's take these one at a time. When a
screwdriver or crowbar is placed against a window to jimmy it,
the usual thing is that you'll see a mark made by the
application of the force of the crowbar or screwdriver to the
window. Correct?
A. You would see one of either that -- the impression that was
made as it pressed against the window or striations as it slid
across the window sill.
Q. And the drill bit that you analyzed, here, however, the
James Cadigan - Cross
hypothesis is that it was applied -- that the lock you had, a
drill was applied to it like a spinning tool. Correct?
A. Yes, sir.
Q. And the impressions that are left are not left by any
single contact of the drill but rather by a process of spinning
at the rated speed of the drill. Correct?
A. Well, the impressions that are left if -- depends -- it
depends on what happens as the user utilizes the drill.
Q. Right.
A. If he goes all the way through, no marks are left.
Q. Of course. The end of the drill doesn't leave any marks?
A. But if in this case in which there was a shallow impression
and a deeper impression, the impression that is left would be
the last turn of that particular drill bit before it was pulled
away.
Q. That's right. Before it was pulled away.
A. The last sweep.
Q. You use electric drills, don't you?
A. Yes, sir.
Q. And sometimes if you're drilling a hole in a little ways,
do you run the drill bit back in to smooth out the partial hole
that you've made and to have the process of the drill remove
any chips?
A. Sometimes.
Q. Okay. And so you're familiar with that process; right?
James Cadigan - Cross
A. Yes, sir.
Q. Well now let's look at the two parts of the equation.
Let's look first at a drill bit. All right? How is a drill
bit manufactured?
A. Well, it's a several-step process that goes into the
production of the drill bit, starting out with bar stock that
can be of different diameters.
Q. Okay. Let's start with that. A quarter-inch drill bit
starts out its life as a piece of bar stock a quarter inch in
diameter. Correct?
A. Not necessarily. It can be wider than that, and then it's
manufactured down to a particular diameter.
Q. Could be machined down; correct?
A. Yes, sir.
Q. So it starts out life as a piece of bar stock. Now, bar
stock is not a casting, is it? It's an extrusion of some kind?
A. It usually is, yes, sir.
Q. Because a casting wouldn't have the strength that's
necessary to do the work that a drill is supposed to do. Is
that your understanding?
A. That's my understanding.
Q. Now, this piece of bar stock is then machined to make a
pointed end -- that's the -- the pointy end of the drill.
Right?
A. Yes, sir.
James Cadigan - Cross
Q. The pointed part. And then there are -- the little things
you can see around those are called the flutes. Correct?
A. That's what they're called.
Q. Now, the drill as it's manufactured has two types of
cutting edges, does it not? One is the cutting edge at the end
of the drill, if you looked at it end on, like that picture you
and I were looking at, and you see those two little edges
there; correct?
A. Yes, sir.
Q. In addition to that, the flutes are sharp; is that correct?
A. The flutes are sharp, yes, sir.
Q. In order to get sharp, they have to be sharpened?
A. Yes, sir.
Q. You don't find them in nature sharpened.
A. No.
Q. That's what I'm saying.
Now, the manufacturer makes drill bits, the
quarter-inch drill bits according to specifications; correct?
A. Yes, sir.
Q. That is to say, if I go to the hardware store and buy
something out of a bin that says a quarter-inch drill bit and
I'm going to drill a hole in my boat to put lag bolts, I want
to make sure that it's a quarter inch and not 17/32. Right?
A. That is correct.
Q. So they have tolerances in the manufacture that are
James Cadigan - Cross
designed to make the drills identical at least with respect to
size. Is that correct?
A. That is correct.
Q. Now, in addition to making them identical with respect to
size, the manufacture of drill bits in today's world is
automated, isn't it?
A. Yes, sir.
Q. Did you visit any drill-bit plants in your preparation for
your debut as a testifier about drill bits?
A. I visited drill-bit manufacturing facilities both during my
training and before coming to testify here, yes, sir.
Q. Okay. So you've watched them make them. Right?
A. Yes, sir.
Q. Now, the automated process involves the use of a lathe of
some kind -- is that fair to say -- to machine this bar stock
into drill bits of the requisite size? Is that fair?
A. A lathe is used in part of the process. There is also a
cutter that cuts the flutes, and there is also a grinder that
sharpens the tips of the blades to allow them to cut.
Q. Okay. Now -- and again, these processes are designed to
produce drill bits that meet the manufacturers' specifications;
correct?
A. That is correct.
Q. Now, metal that is extruded as bar stock has certain
strength characteristics that are along its longitude; that is,
James Cadigan - Cross
along the long way. Is that right?
A. Yes, sir.
Q. That is to say, if you cut -- if you cut through metal --
and I don't know the answer to this. Could you help me? If I
cut through a piece of bar stock and looked at it very closely
under a microscope, would I see things that looked fibrous?
A. I don't know.
Q. You don't know the answer to that.
A. No, sir.
Q. Okay. Now, in this machining process, is it your belief
that every drill bit that comes off the line is unique when it
leaves the factory?
A. In the production, once it's sharpened.
Q. Yes, sir.
A. Yes, sir.
Q. All right. And the -- now, when you say that it's unique,
you're taking account of the fact that, what, every time a
cutting tool cuts something, it changes; right?
A. It's based on the fact that as the tool is sharpened, it is
sharpened using a wheel that presents in a random-pattern grit
that removes metal; and each time that wheel turns, grit falls
off, pieces of metal fall off and leave a unique pattern on the
tip of that screwdriver blade or drill bit.
Q. Talking about drill bits?
A. Drill bit. And those unique patterns on the tip of that
James Cadigan - Cross
screw -- drill bit are left when that drill bit is used on a
surface.
Q. Now, we're talking about the manufacturing process, sir.
We've gone a little bit beyond.
When the -- let's look at the place where the pointy
end of the drill is being made. Right? That pointy end makes
contact with a wheel. Correct?
A. Yes, sir.
Q. All right. And the wheel is spinning very fast. Right?
A. Yes, sir.
Q. Now -- and that's the same -- if I make -- if the
manufacturer makes a thousand drill bits in one day, every
single one of the ends of those drill bits is going to come in
contact with that same wheel; correct?
A. Yes.
Q. All right. And if you were at the factory and you took
that wheel, would you be able -- at the end of a day's run,
would you be able to identify the 1,000 drill bits that were
made that day using that wheel?
A. I don't understand that question.
Q. Well, you testified, sir, that in our hypothetical example
a thousand drill bits are going to be made by a manufacturer.
Correct? We understand that. That's our hypothetical?
A. Yes, sir.
Q. Let's assume they're a thousand quarter-inch drill bits.
James Cadigan - Cross
A. Yes, sir.
Q. And you told us that the way those drill bits get made is
that the -- what's going to become the pointy end comes into
contact with a grinding wheel sometime during the production
process. Correct?
A. Yes, sir.
Q. All right. Now, if you were able at the end of the
production day to take that grinding wheel and look at it under
your microscope, would you be able to correlate that to the
thousand drill bits that were manufactured that day?
A. Would I be able to match the grinding wheel?
Q. Yes.
A. With the drill bits?
Q. Yes, with the drill bits.
A. I don't think so.
Q. All right. Well, a grinding wheel is a cutting tool, isn't
it?
A. Yes, sir.
Q. And a drill bit is a thing that receives an impression from
a cutting tool. Correct?
A. Yes, sir.
Q. And it's your testimony that in that instance you would not
be able to make a match between the thing that cuts and the
thing that's being cut. Right?
A. Well, in the case --
James Cadigan - Cross
Q. You can explain in a minute, but I need you to answer my
question. Is it your testimony that you would not in that case
be able to make a match between the thing that cuts and the
thing that's being cut? Yea, or nay?
A. It's sharpened, as opposed to being cut, but there wouldn't
be any pattern on the grinding wheel that you could compare to
the drill bit.
Q. Okay. And you say, "sharpened, as opposed to being cut."
The -- a grinding wheel has little bits or flecks of diamond or
emery or something like that. Right?
A. Yes, sir.
Q. So when we say "grind," all we mean is cut -- that's a
series of little cuts rendered by the little pieces of grit
that are on the wheel; right?
A. "Sharpened" is a more accurate term for me.
Q. All right. Now, in this manufacturing process that we're
talking about, you said you collected, you know, 150 or so
drills. Right? Now, is -- have you read any of the literature
about drill-bit comparison?
A. Yes, sir.
Q. Okay. Have you read a book called Modern Scientific
Evidence, The Law and Science of Expert Testimony?
A. I don't know that I have.
MR. TIGAR: May I display it to the witness, your
Honor?
James Cadigan - Cross
THE COURT: Yes.
BY MR. TIGAR:
Q. Do you know this book?
A. No, sir.
Q. Have you read any work on firearms and tool marks by Alfred
Biasotti and John Murdock?
A. Yes, sir.
Q. Do you recognize Alfred Biasotti and John Murdock as
experts in the field of tool mark identification?
A. They have written several articles in the field, yes, sir.
Q. I didn't ask that, sir. Do you recognize them as experts
in the field of tool mark identification?
A. I recognize them as people that have expertise.
Q. Now, are they members of this AFTE? Do you know?
A. Mr. Biasotti was a member of it and Mr. Murdock is.
MR. TIGAR: Okay. Your Honor, I am about to change
subjects. If I could have the Court's indulgence and leave
five minutes early, I would appreciate it. If not, I'll
continue.
THE COURT: How long do you expect to go?
MR. TIGAR: Your Honor, I have another hour and a half
or so with this witness.
THE COURT: All right. We'll recess.
MR. TIGAR: Thank you, your Honor.
THE COURT: You may step down.
Members of the jury, we will recess now until Monday
morning, at which time we expect to start at 8:45. And, of
course, as I already told you, Tuesday we're going to recognize
the holiday of Veterans Day.
So between now and Monday morning when you come back
to the courthouse is a short time in one way you look at it,
your way; it's a long time in the way I look at it, which is
how much opportunity there is for you to come into contact with
things that you ought not during that time.
And, you know, I just repeat what I said here when you
were going through the jury selection process in assuring you
or reassuring you that we do not anticipate having you kept
separate and apart from other people -- "sequester," as we call
it, the jury during the course of the trial. And I still, of
course, adhere to that.
But that all depends on you and it depends upon your
willingness to and your exercising the discipline to, first of
all, keep open minds, remembering that, of course, you've heard
a lot in this case but you're going to hear a lot more,
remembering also that you must avoid discussing any impressions
or even coming to impressions about what all this means. Let
us go through the whole trial process, meaning all of the
evidence, the arguments, and the instructions on the law, all
of the phases of the trial that I discussed with you or
mentioned to you when you were first selected.
So please wait for that with respect to your own views
of the case.
But, you know, you have to be extremely careful about
all things that you might come into contact with in newspapers,
magazines, radio, television, books, whatever, because you're
going to get a lot more evidence in this case; and it's the
evidence in the case that you're going to have to rely on when
you decide the case and only that.
I do want to mention one thing about exhibits. You
hear these exhibits being referred to with numbers like 2000
and all that. I don't want you to leap to the conclusion that
you're going to get thousands of exhibits. The numbering
system we use here is not, as you've already learned,
sequential. We don't go from 1 to X number or infinity. So
bear with us on that.
And also, when it comes time to deliberate in the
case, the exhibits will be there in a room for you to handle
and deal with. You don't have to remember each photograph that
you see or each physical piece of evidence that you see.
You'll have all of that at the time of deliberation. So don't
be concerned with, Gee, I don't remember what that photograph
was, or something. That will all be there for you.
But the important thing, of course, is that you must
be extremely careful in talking with other people or letting
other people talk to you or in your presence about anything
connected with the case.
Obviously, as you can appreciate, there is some public
comment about our trial and I'm sure will be. But, you know,
your understanding of the case has to be based on what happens
in this room and on nothing else. And I have to rely on you
for that because, you know, to put it to you in just plain old
terms, if somebody violates that, I'd have to change my
approach in this case and then sequester you.
So I'm sure you don't want that to happen; and I
don't, either. But it depends on every one of you following
this instruction and being very careful about it.
Now, we -- you know, in all other respects, of course,
you're free to go and do as you will this weekend. I can't
guarantee you good weather all the time. I don't have any
jurisdiction over that, so we'll see what happens. We kind of
hope for good weather on Monday.
But with these cautions, then, I'm going to excuse you
until the usual time when we'll gather you up on Monday and
have you come to the courthouse.
So please continue to be very careful, as I am sure
you will, recognizing what your responsibility is in the case.
And I'm not going to be able to tell you now how long you can
expect this trial to take because we still don't know. I mean,
we're well under way here, but I'm not going to be able to give
you a prediction about the length of the trial; so don't ask
me. I can't answer it.
With these cautions, members of the jury -- and also
we do, on a more positive side, hope for you to have a pleasant
and restful weekend. You're now excused till Monday morning.
(Jury out at 1:02 p.m.)
MR. TIGAR: May we approach, your Honor?
THE COURT: Yes.
(At the bench:)
(Bench Conference 68B3 is not herein transcribed by court
order. It is transcribed as a separate sealed transcript.)
(In open court:)
THE COURT: Well, we had a little discussion here at
the bench concerning a couple of matters respecting the
evidence and then also scheduling.
8:45 -- we'll be in recess until 8:45 Monday morning.
(Recess at 1:08 p.m.)
* * * * *
INDEX
Item Page
WITNESSES
Thomas Brown
Direct Examination by Mr. Ryan
Cross-examination by Mr. Tigar
Brett Mills
Direct Examination by Ms. Wilkinson
Cross-examination by Mr. Tigar
James Cadigan
Direct Examination by Mr. Orenstein
Voir Dire Examination by Mr. Tigar
Direct Examination Continued by Mr. Orenstein 7634
Voir Dire Examination by Mr. Tigar
Direct Examination Continued by Mr. Orenstein 7643
Voir Dire Examination by Mr. Tigar
Direct Examination Continued by Mr. Orenstein 7647
Cross-examination by Mr. Tigar
PLAINTIFF'S EXHIBITS
Exhibit Offered Received Refused Reserved Withdrawn
151-151A 7581 7585
151B 7600 7600
152 7635 7635
153 7648 7648
155 7639 7643
157 7652 7652
244 7645 7647
246 7630 7630
1841 7631 7634
1842 7637 7637
1843 7649 7649
2010 7577 7578
2011 7578 7578
2012 7579 7579
* * * * *
REPORTER'S CERTIFICATE
I certify that the foregoing is a correct transcript from
the record of proceedings in the above-entitled matter. Dated
at Denver, Colorado, this 7th day of November, 1997.
_______________________________
Paul Zuckerman
