The Oklahoma City Bombing Trial Transcripts
Terry Nichols
Friday, November 28, 1997 (morning)
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 95)
Proceedings before the HONORABLE RICHARD P. MATSCH,
Judge, United States District Court for the District of
Colorado, commencing at 8:45 a.m., on the 28th 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, 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
(In open court at 8:45 a.m.)
THE COURT: Be seated, please.
Counsel approach, please.
(At the bench:)
(Bench Conference 95B1 is not herein transcribed by court
order. It is transcribed as a separate sealed transcript.)
(In open court:)
MR. TIGAR: May I just have a moment to let my
colleagues know what --
THE COURT: Yes.
All right. Bring in the jury.
(Jury in at 8:48 a.m.)
THE COURT: Members of the jury, good morning.
JURORS: Good morning.
THE COURT: We're ready to resume our trial and call
for the Government's next witness.
MR. MACKEY: I think Mr. Wilson was --
MR. TIGAR: Mr. Wilson was still being cross-examined,
your Honor.
THE COURT: Excuse me.
Mr. Wilson, you'll return to the witness stand under
the oath earlier taken.
THE WITNESS: Thank you.
(Alton Wilson was re-called.)
THE COURT: All right, Mr. Tigar.
MR. TIGAR: Thank you, your Honor.
CROSS-EXAMINATION CONTINUED
BY MR. TIGAR:
Q. Good morning, Agent Wilson.
A. Good morning.
Q. When we were last together, we were talking about that
Alton Wilson - Cross
parking lot.
A. That is correct, sir.
Q. And we're going to keep on talking about that parking lot
but not much longer.
A. Okay.
Q. I would like to show you now the -- a portion of what's
been admitted as Exhibit E89 -- Defense Exhibit E89. And that,
we were talking about on Wednesday. That's the diagram of the
parking lot. Correct, sir?
A. Yes, sir.
Q. And that diagram has these boxes we established that
represent automobiles; correct?
A. That is correct, sir.
Q. Now, that diagram was prepared by Special Agent Lester. Is
that your understanding?
A. That was not my understanding.
Q. Okay. Well, who is it your -- who, according to your
understanding, prepared the parts of the diagram that did not
include the evidence-recovery numbers?
A. I was not aware of the individual who prepared the diagram.
I didn't look at the author's name on the diagram.
Q. All right. So when you received the diagram without the
evidence-recovery numbers on it, all of these boxes that
indicate cars were already on it. Is that right?
A. That is correct, sir.
Alton Wilson - Cross
Q. And all of this information down here in the legend, RP1,
RP2, RP3: That was already on it. Correct?
A. I believe that would be correct, sir.
Q. And was that handed to you to help you in your search
process?
A. It was, sir.
Q. And from whom did you receive it?
A. I do not recall who that individual was who gave it to me.
Q. Somebody that was in charge of the search teams. Is that
fair to say?
A. Yes, sir.
Q. And then you put on here all of the numbers that are not in
the boxes. Correct?
A. That is correct, sir.
Q. And we established on Friday that there is no number to
Item 06. Correct?
A. That is correct.
Q. Now, when you were doing this evidence-recovery process,
were you wearing gloves?
A. I was not, sir.
Q. Was Mr. Kelly, to your -- as far as you could see --
wearing gloves?
A. Yes, he was, sir.
Q. What kind of gloves were those?
A. I do not recall the exact kind of gloves that Mr. Kelly was
Alton Wilson - Cross
wearing.
Q. Were they -- I'm sorry? Didn't mean to interrupt your
answer.
Were they latex gloves, or cloth gloves?
A. Again, I do not recall the exact kind.
Q. Uh-huh. Did -- during the -- any of the searches that you
conducted, did you wear latex gloves?
A. In this parking lot?
Q. At any time.
A. Yes.
Q. And where did those latex gloves come from that you were
furnished?
A. From the crime scene. In other words, there were supplies
on hand.
Q. And were the gloves that you got out of a box of gloves
that looked like you could buy in a drugstore, or do you know?
A. I really can't recall at this point.
Q. Were the gloves lined; that is to say, did they have a
powder inside them so that they could be taken on and off more
easily?
A. That, I don't recall, sir.
Q. Did you happen to notice the -- do you know what the
difference is between gloves that have a powder inside them and
those that don't?
A. Not really, sir.
Alton Wilson - Cross
Q. So you're not aware of what's placed inside of gloves to
make them easier to get on and off. Is that true?
A. That is correct, sir.
Q. Now, you testified on Friday that you did not take
pictures. Is that correct?
A. That is correct, sir. Actually, I testified on Wednesday.
Q. On Wednesday, that's right. I got my days all goofed up.
There we are.
You testified on Wednesday that you didn't take
pictures. Is that right?
A. That's correct.
Q. Who took pictures?
A. I do not recall the exact identity of the person who took
the pictures.
Q. Now, did you make up -- did you write up a log of the
pictures that were taken?
A. Yes, I did.
Q. Okay. I'm going to show you what has been marked as
Defendant's Exhibit E5 and ask -- I'm going to turn to the
first page inside the cover and ask if that's your handwriting?
A. Yes, it is, sir.
Q. And your signature. Correct?
A. That is correct, sir.
Q. But none of the -- will you just look through there and
make sure that nothing else in there represents either a
Alton Wilson - Cross
picture that you took or your handwriting.
A. Okay. I've reviewed each of these photographs.
Q. And what I've just shown you, that first page there is the
only thing that's in your handwriting. Correct?
A. That is correct, sir.
Q. All right. And you didn't take any of these pictures --
A. That's correct, sir.
Q. -- is that correct?
Now, were you furnished at the time of the search a --
an item location form to fill out?
A. That, I'm not certain. Can you describe it a bit further
for me?
Q. Sure. Let me put it up here. It's marked as page 007 just
with our own Bates' stamp numbering of what's been received as
E89. Do you see that item location form?
Do you remember that being a part of the packet of
materials that you were furnished at the time?
A. No, I don't recall it being a part.
Q. Okay. But you'd agree with me that this one is blank.
Correct?
A. That is correct, sir.
THE COURT: I'm confused. Is that a part of E89?
MR. TIGAR: Yes, it is, your Honor. It is Bates' page
007 of what's been marked as E89.
THE COURT: Thank you.
Alton Wilson - Cross
BY MR. TIGAR:
Q. Now, we did talk on Wednesday about the evidence-recovery
log. Correct?
A. Yes, sir.
Q. This page 003; and this is your handwriting; correct?
A. That is correct, sir.
Q. And there is a column here that says "photo." Correct?
A. That is correct.
Q. And you wrote "yes," "no," and so on and filled in that
column. Correct?
A. That is correct.
Q. Now then, down here, there is an item and there is a "no,"
but there is an asterisk. Correct?
A. That's correct, sir.
Q. And at the bottom, we see "Photo of Object Taken." Do you
see that?
A. Yes, sir.
Q. When were the asterisks put in?
A. On the day I completed this log, sir.
Q. And when was that?
A. During the time of the search, the recovery effort.
Q. So at first you wrote "no" on some and then you put an
asterisk. Correct?
A. That is correct.
Q. Why did you do that?
Alton Wilson - Cross
A. Can I see the form again? That page.
Q. I'll give you your whole form so that you can look at it.
And then what we were looking at, sir, is this Bates'
page 3; and those are our numbers, you know, for evidence
purposes.
A. Okay.
Q. But if you can just look at the yeses and the nos there and
tell us how it was that it got to be a no and then it got to be
a yes.
MS. WILKINSON: Your Honor, could we use a
reference -- for example, one says dry swabbing of metal frame;
that has a no -- so we know which one he's explaining?
THE COURT: You're asking about all asterisks.
MR. TIGAR: Yes. I'm asking him when did he start
making asterisks. I'll be happy to show him the whole
document, but I wanted to give him the whole document --
THE COURT: I understand.
THE WITNESS: I will start with item CT-4/21-07 where
in the description column it reads "dry swabbing of metal
frame." The swabbing itself was not photographed. The metal
frame was.
BY MR. TIGAR:
Q. So that when we see an asterisk, we see that only refers to
the fact that the swabbing wasn't photographed but the metal
frame --
Alton Wilson - Cross
A. That's correct.
Q. -- was. Is that right?
A. That's correct, sir.
Q. Okay. All right. Now, let me put this up so we can
explain to the jury what we've just been talking about.
A. All right, sir.
Q. I'll put back up this page and zoom out. For example, 06
says yes, a picture was taken. Correct?
A. That's correct, sir.
Q. But then 07 says "dry swabbing of metal frame," and it says
"no," but then it says "photo of object taken." That means
that you did take a picture of the object from which you took
the swabbing but you didn't a take a picture of the swab
itself. Correct?
A. That's correct, sir.
Q. And these entries were made at or about the time you were
doing your search; correct?
A. That's correct, sir.
Q. Now, I'm going to show you finally what has been received
in evidence as Government's Exhibit 736 and ask you to take
note of the pink paint around it. Do you see the pink circle
there?
A. Yes, I do, sir.
Q. And in fact, do you recognize one of the people in this
picture?
Alton Wilson - Cross
A. Yes, I do.
Q. That's Linda Vernon; right?
A. That's correct, sir.
Q. Now, does -- were there pink paint, like circles, in the
parking lot on the 21st when you were searching it?
A. I do recall seeing some, sir.
Q. Do you know who placed -- did they appear to be spray
painted circles?
A. That, I cannot tell, sir.
Q. Now, do you know who made the pink, painted circles in the
parking lot when you were searching?
A. I do not, sir.
Q. Did -- were you, in terms of your briefings as to what
evidence to seize, told anything about what you should do about
matters, items that were within those circles or were
designated by those circles?
A. Not that I recall, sir.
Q. So there wasn't anything about that that was of concern to
you as you did your search. Is that fair to say?
A. That's correct.
MR. TIGAR: Thank you very much, Agent. I have no
further questions.
THE COURT: Ms. Wilkinson.
MS. WILKINSON: Mr. Tigar, may I use E89?
Thank you, your Honor.
Alton Wilson - Redirect
REDIRECT EXAMINATION
BY MS. WILKINSON:
Q. Mr. Wilson just to get it straight in everybody's mind, on
Wednesday you were talking about one piece of evidence that you
had seized. Correct?
A. That is correct.
Q. And you marked it on April 21; is that right -- or it was
marked on April 21?
A. That is correct.
Q. Now, when Mr. Tigar was asking you questions, he pointed
out that you had not listed it on E89 on the diagram, location.
Is that correct?
A. That is correct.
Q. But did you list it on your evidence-recovery log?
A. Yes, I did.
Q. Let's show the jury that. Show you page 003 -- your
Honor -- of Government's -- excuse me -- Defense Exhibit E89.
THE COURT: Thank you.
MS. WILKINSON: Let's see if I can focus in a little
bit more.
BY MS. WILKINSON:
Q. Now, let's go down the list here, Mr. Wilson, down to
CT-4/21-06. Is that the item we've been talking about?
A. Yes, it is.
Q. Just to make it easy -- the 4/21 signifies what?
Alton Wilson - Redirect
A. The date.
Q. Of the recovery?
A. That is correct.
Q. So is this the sixth item that you seized that morning?
A. That is correct.
Q. So can we refer to it as 06 just to keep it simple?
A. Yes.
Q. And it's described as what, a wood panel?
A. That is correct.
Q. And right over here, what does that say under "received"?
A. Under "received" is indicated the initials of Ron Kelly.
Q. All right. And next to whether it was photographed or not,
what did you indicate?
A. I indicated yes to indicate that it was photographed.
Q. And that is the piece that you examined, Government's
Exhibit 664 that was in front of you on Wednesday?
A. Yes, it is.
Q. Now, just to assist the jury -- it's not in evidence yet,
but it's going to be described by other witnesses. Can you
describe what 664 looks like?
A. Yes, I can.
Q. Tell us what the front looks like.
A. The front is yellow and red in color. The back is wood,
and it appears to have come from the box panel of the Ryder
truck.
Alton Wilson - Redirect
Q. And on the bag, is there an indication of the number -- the
item number on it?
A. Yes, there is.
Q. What does it say?
A. "CT-4/21-06, 4-21-95," and the initials "RLK" for --
Q. So that's Item No. 6 that's indicated here on your
evidence-recovery log. Is that correct?
A. That is correct.
Q. So the only thing you didn't do was put it on that diagram.
Is that right?
A. That is correct.
Q. And it was photographed in place?
A. Yes, it was.
Q. Now, you were also asked about the photo log. And again
just let me use the Defense Exhibit E5. You just looked at
that. Correct?
A. Yes.
Q. And you said -- if I can show the first page, which is
marked --
MR. TIGAR: Excuse me, your Honor.
THE COURT: It's not evidence.
MS. WILKINSON: I'm sorry, your Honor.
THE COURT: It's not in evidence.
MS. WILKINSON: We'd offer Defense Exhibit E5.
MR. TIGAR: We object to that, your Honor. Portions
Alton Wilson - Redirect
other than what he wrote have not been authenticated, your
Honor.
MS. WILKINSON: I'm just offering the first page,
then, so he can explain, your Honor, which is the page he wrote
on.
THE COURT: Well, we can make that a Government
exhibit then separately.
MS. WILKINSON: That's fine.
MR. TIGAR: I have no objection to that page being
received for that purpose, your Honor.
THE COURT: All right. Let's give it a Government
designation. I assume you have a copy of it somewhere.
MS. WILKINSON: We do.
THE COURT: So we can limit the exhibit to the first
page or single page.
MS. WILKINSON: Yes.
THE COURT: Well, to make it easy, let's just use the
designation number, whatever it is, and you can use that page.
MR. TIGAR: On the understanding with the next witness
it will come into evidence, your Honor, I have no objection to
it being shown in this manner and being referred to by its
exhibit number so we keep it simple.
MS. WILKINSON: I think that will be easier. There is
a page number. I'll say Defense Exhibit E5, page 3.
MR. TIGAR: That's acceptable.
Alton Wilson - Redirect
BY MS. WILKINSON:
Q. With those limitations, Mr. Wilson, let's look at page 3.
This is your handwriting. Is it not?
A. Yes, ma'am.
Q. And up at the top, can you just tell the jury what that
says?
A. Yes. It says "21st April '95, photograph log of search
conducted at parking garage located across from blast site."
Q. Now, you say "parking garage" there. That is the same
parking lot that you've described to the defense and described
to us?
A. Yes, it is.
Q. Now, starting at the beginning, you have Frame No. 1. Is
that right?
A. That is correct.
Q. You don't recall taking the pictures, do you?
A. I do not.
Q. Do you know whether this was Frame No. 1 on the roll, or
was this the first picture you wrote down?
A. It was the first picture that I wrote down.
Q. So if we were to look through the photographs in here,
would these frame numbers correlate with the actual frame
numbers of the photographs?
A. They would not.
Q. Now, these descriptions that you use: Are these the same
Alton Wilson - Redirect
descriptions that you used in your evidence-recovery log?
A. Yes.
Q. Wood panel and then the CT number?
A. Yes, they are.
Q. And down here for example, Frame No. 5: Do you see that?
A. Yes, I do.
Q. You have metal frame; right?
A. Yes, ma'am.
Q. And it's Item No. 7 that you were -- that's received?
A. That's correct.
Q. If we then go back to the evidence-recovery log, which is
Defense Exhibit E89, page 3, and we try and correlate that,
that's No. 7 -- right -- we were just looking at?
A. That's correct.
Q. Metal frame? And we go back here, we look at No. 7, and it
says "dry swabbing of metal frame." Correct?
A. That is correct.
Q. And in the photo, you have the asterisk with a "no"?
A. That's correct.
Q. And does that mean that there is a photograph of this metal
frame?
A. Yes.
Q. And that's what's indicated on your evidence-recovery log;
is that correct?
A. That's correct.
Alton Wilson - Redirect
Q. So on the item we are interested in, No. 6, we go back to
page 3 of the photo log, E5, and you indicate there is a
photograph of that; correct?
A. Yes, I do.
Q. You indicate it's Frame No. 4?
A. That is correct.
Q. Is that the frame of the photograph?
A. It is not.
Q. You were not responsible for having these photographs
processed, were you?
A. I was not.
Q. And you didn't number the frames, did you?
A. I did not.
MS. WILKINSON: We have no further questions, your
Honor.
THE COURT: Mr. Tigar, any recross?
RECROSS-EXAMINATION
BY MR. TIGAR:
Q. So we have established that it was the parking lot, not the
parking garage. Correct, sir?
A. That is correct.
Q. And then looking at page 3 here, we see the first item that
you recovered was a wood panel, yellow and red. Correct?
A. That is correct, sir.
Q. Now, that item: Was that yellow and red on one side and
Alton Wilson - Recross
wood on the other side?
A. To the best of my recollection, it was, sir.
Q. Now, you've also told us that the item in front of you,
which is 06, is a wood panel that's yellow and red on one side
and wood on the other. Correct?
A. That's correct, sir.
Q. But you didn't put "yellow and red" down on 06 on your
evidence-recovery log; correct, sir?
A. That's correct, sir.
Q. And when you got over to the -- what's -- this is E5, 03 --
you just called these "wood panels" without any identification
as to what color was on them; correct?
A. That is correct, sir.
Q. So with respect to Item No. 01, there is a distinction
between or a difference between the description on the
evidence-recovery log and the description on the photo log;
correct?
A. That is correct, sir.
Q. And that has to do with the fact that one says yellow and
red and the other does not; correct?
A. That is correct, sir.
MR. TIGAR: I have no further questions.
REDIRECT EXAMINATION
BY MS. WILKINSON:
Q. Mr. Wilson, you were just asked about your description of
Alton Wilson - Redirect
Item 01. Is that right?
A. That is correct.
Q. Now, that's a different item from 06. Is that right?
A. That is correct.
MS. WILKINSON: Your Honor, may I show the witness
Government's Exhibit 737?
THE COURT: Yes.
BY MS. WILKINSON:
Q. Mr. Wilson, I'm showing you Government's Exhibit 737. Do
you see that?
A. Yes, I do.
Q. And do you see the marking on here with the CT number?
A. Yes, I do.
Q. What does it say?
A. CT-4/21-01.
Q. Can you compare that, Government's Exhibit 737, which is
01, to 06, which is Government's Exhibit 664A? Are they
different?
A. Yes, they are different.
Q. Are they different shapes?
A. Yes, they are.
Q. Do they both have yellow and red paint?
A. Yes, they do.
Q. And do they have different amounts of the red paint on each
item?
Alton Wilson - Redirect
A. Yes, they do.
Q. Which item -- and use the Government exhibit number,
please -- is bigger?
A. Exhibit No. 737.
Q. Okay. And is there any doubt in your mind that
Government's Exhibit 664A --
MR. TIGAR: Object to that, your Honor.
THE COURT: Yes. Rephrase it.
MS. WILKINSON: That's fine, your Honor. I have no
further questions.
MR. TIGAR: Nothing further, your Honor.
THE COURT: All right. Is the witness to be excused?
MS. WILKINSON: Yes.
THE COURT: Agreed, Mr. Tigar?
MR. TIGAR: Yes, your Honor.
THE COURT: You may step down. You are excused.
THE WITNESS: Thank you, your Honor.
THE COURT: Next witness, please.
MR. MACKEY: FBI Examiner Ron Kelly.
THE COURT: All right.
THE COURTROOM DEPUTY: Would you raise your right
hand, please.
(Ronald Kelly 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: Ronald L. Kelly, K-E-L-L-Y.
THE COURTROOM DEPUTY: Thank you.
THE COURT: Ms. Wilkinson.
MS. WILKINSON: Thank you.
DIRECT EXAMINATION
BY MS. WILKINSON:
Q. Good morning, Mr. Kelly.
A. Good morning.
Q. Could you tell the ladies and gentlemen of the jury where
you work?
A. I work with the Federal Bureau of Investigation.
Q. Are you assigned to the laboratory?
A. Yes, I am.
Q. Are you a chemist there?
A. Yes, I am.
Q. And I want -- are you here today to testify about the
recovery of a piece of evidence on April 21, 1995?
A. That's correct.
Q. Let's turn to that day. Were you sent to Oklahoma City to
assist with the investigation of the Oklahoma City bombing?
A. Yes, I was.
Q. And were you working at the crime scene on April 21, 1995?
A. Yes, I was.
Q. Were you part of a specific search team?
Ronald Kelly - Direct
A. We were on the chemistry team.
Q. Who was on your team with you?
A. I was working with Agent Steve Burmeister.
Q. And did you have other people assisting you?
A. That is correct.
Q. Did Mr. Wilson assist you?
A. Yes, he did.
Q. And were there other individuals that were there with you
at certain times?
A. Yes, there were.
Q. On April 21, did you search the parking lot across from the
Murrah Building?
A. Yes, I did.
Q. What type of items were you looking for on that day,
Mr. Kelly?
A. I was looking for items that may have some significance as
far as chemical residues.
Q. And during your search of the parking lot, did you have
photographs taken of certain items that you were seizing?
A. Yes, there were photographs taken.
Q. And did you, yourself, seize certain items?
A. Yes, I did.
Q. Did you also take swabbings from certain items?
A. Yes, I did.
Q. Did you cause photographs to be taken of those swabbings?
Ronald Kelly - Direct
A. Not of the swabbings, no.
Q. Did you take -- cause photographs to be taken of the items
that were swabbed?
A. That is correct.
Q. Now, if I could, I want to show you the evidence-recovery
log, which is marked Defense Exhibit E89. Turn to page 03.
You did not maintain this log. Is that right?
A. No, I did not.
Q. Who maintained it?
A. Agent Wilson.
Q. Now, this numbering system that's right here, CT-4/21-01:
Is this your numbering system?
A. Yes, I chose to use that system.
Q. What does the "CT" signify?
A. Chemistry Team.
Q. What does the "4/21" signify?
A. The date.
Q. And beginning with "01," what does that signify?
A. The unique item number.
Q. During the search that day, did you recover several items
that you believed were portions of a wood panel?
A. That's correct.
Q. And did you indicate that here on your log or have it
indicated on the log?
A. Yes. There are several notations that include "wood
Ronald Kelly - Direct
panel."
Q. Let's turn to the one that we're all interested in, 06 down
here. Did you recover that item on April 21, 1995?
A. Yes, I did.
Q. And was it marked CT-4/21-06?
A. Yes, it was marked with that number.
Q. Did you, yourself, recover it?
A. Yes, I did.
Q. Where did you recover it?
A. I recovered it from the parking lot on the north side of
the building in the northwest corner.
Q. All right. Do you recall what it looked like?
A. Yes, I do.
Q. What did it look like?
A. The item was a red-and-yellow wood panel.
Q. And was the red and yellow on one side or both sides?
A. There is red and yellow on one side and a woodish color on
the other side.
Q. Did you recover other items that day that had red and
yellow paint on one side?
A. Yes, I did.
Q. Have you compared those items to the one that we've marked
or that you marked as 06?
A. Yes, I have.
Q. And do you recall specifically where 06 was recovered?
Ronald Kelly - Direct
A. Yes, I do.
Q. Did you cause a photograph to be taken of that item before
you seized it?
A. Yes, I did.
Q. Do you recall who took those photographs?
A. No, I don't.
Q. Did you once say that you thought Mr. Wilson took those
photographs?
A. My recollection was that Mr. -- Agent Wilson assisted in
the photography; that is correct.
Q. Did he maintain the photography log?
A. Yes.
Q. Do you know for a fact who took the photographs?
A. I'm not certain with any individual photo, no.
Q. You do recall causing a photograph to be taken of 06?
A. Yes, I do.
Q. Would you recognize that photograph?
A. Yes, I would.
Q. I want to show you Government's Exhibit 665. Do you
recognize that?
A. Yes, I do.
Q. How do you recognize it?
A. I recognize it by several unique items in there.
Q. Did you take swabbings of one of the items in there?
A. Yes, I did.
Ronald Kelly - Direct
Q. And do you also see 06 in this photograph?
You don't have to point it out yet because it's not in
evidence. Do you recognize it?
A. Yes, I do.
MS. WILKINSON: Okay. Your Honor, we offer 665.
MR. TIGAR: May I examine, your Honor?
THE COURT: Yes.
VOIR DIRE EXAMINATION
BY MR. TIGAR:
Q. Mr. Kelly, that photograph you've just been shown is an
enlargement of a photograph that is contained in a book. Is
that correct?
A. That is correct.
Q. And the book is one that contains all of the -- a number of
pictures and then a log that has been prepared and initialed by
Agent Wilson. Is that correct?
A. If I could see that book, I could confirm that, yes.
Q. I show you what has been marked as Defendant's Exhibit E5,
sir, and ask if you would look at that and confirm that.
Good morning. My name is Michael Tigar. I'm helping
Terry Nichols. I'm sorry. I didn't introduce myself.
A. Good morning, sir.
Yes, sir, I recognize this book.
MR. TIGAR: Your Honor, we would oppose the
introduction of that Government exhibit unless it comes in as a
part of the entire book.
THE COURT: Well, are you concerned about the exhibit
as -- the photograph as it is enlarged in 665 as not being the
same as the one in the book?
MR. TIGAR: No, your Honor. The photograph is the
same; but under the rule of completeness, we believe that all
of the photographs that relate to this evidence-recovery
process should be in, your Honor.
THE COURT: Well, I take it you have no objection,
since you offered that exhibit.
MS. WILKINSON: No, I have no objection to both. I
would like to have the individual photograph.
MR. TIGAR: If the Government wants -- fine. If they
want the enlargement and the book E5 comes in at the same time,
then we have no objection.
THE COURT: All right.
MS. WILKINSON: We have another agreement.
THE COURT: Is that okay with you?
MS. WILKINSON: That's fine.
THE COURT: E5 and 665 are received.
DIRECT EXAMINATION CONTINUED
BY MS. WILKINSON:
Q. Okay, Mr. Kelly. Show the jury what 665 looks like,
please. Hold it up for them, please.
All right. Now, why don't I hold it for you so you
Ronald Kelly - Direct
can show them what they're seeing. First of all, start with
this metal fragment here. Tell them what that is.
A. This is an item again -- let me start. This is the parking
lot. This is an item in the corner of the parking lot next to
a wood panel which you can see is yellow and red.
This particular wood panel I recall I labeled as
CT-4/21-06; and I took some swabbings from this metal piece,
and they were labeled 07 and 08.
Q. Now, this is 06 that we've been talking about all morning.
Correct?
A. This item is 06. That is correct.
Q. And how is it situated in this photograph?
A. It's situated on the ground, but it's elevated slightly so
not all the surfaces appear to be touching it.
Q. Could you use this red pen and circle on 665 where 06 is or
what we've now marked in evidence or marked for purposes of
identification as 664A.
MR. TIGAR: He's going to be writing on the exhibit as
received, your Honor?
MS. WILKINSON: Yes. That's why we wanted the
enlargement.
MR. TIGAR: No objection, your Honor.
THE COURT: All right.
THE WITNESS: Specifically this right here.
BY MS. WILKINSON:
Ronald Kelly - Direct
Q. Have you compared this photograph to Government's Exhibit
664A?
A. Yes, I have.
Q. Is it the same item?
A. Yes, it is the same item.
THE COURT: Now, will you show Mr. Tigar the markings,
please.
MS. WILKINSON: Oh, sure.
BY MS. WILKINSON:
Q. Now, on April 21, 1995, when you recovered 06, you told us
you recovered other pieces of the wood panel. Is that right?
A. I recovered several wood panels that day. That's correct.
Q. Okay. And were they photographed and in the photograph
book that we've now admitted I think as E9?
Excuse me. E5?
A. Some of those wood panels were photographed. There were
others that were not photographed.
Q. Okay. Now, you have that photograph log in front of you.
Is that right?
A. I have the entire book in front of me.
Q. And have you compared the log done by Mr. Wilson to the
photographs?
A. Yes, I have.
Q. And does the log match the photographs?
A. No, it does not.
Ronald Kelly - Direct
Q. Do the wood panels, though, that are described in the log
match the photographs?
A. Yes, they do.
Q. Now, let's start with the log. Here at the top we have
wood panel and the first one -- right -- CT-4/21-01?
A. That's correct.
Q. Can you see that in the first photograph of the wood
panels?
A. Yes, I do, and it's labeled No. 5 in this book.
Q. Let's go through the photographs for the jury. This is the
first photograph, is it not?
A. That's correct.
Q. Okay. Is this the second photograph?
A. Yes, it is.
Q. All right. And can you see in this photograph whether this
is 06 or 01?
A. I can clearly see labeled on the bag this item in
CT-4/21-01. So that is Item 01.
Q. So there is no way this is 06?
MR. TIGAR: Objection.
THE WITNESS: That item is not 06.
THE COURT: Be careful about the leading.
MS. WILKINSON: Yes.
BY MS. WILKINSON:
Q. Is this 01 or 06, Mr. Kelly?
Ronald Kelly - Direct
A. This item here is 01.
Q. All right. Let's see if we can focus in, and can you take
that black pen and reach underneath on the screen and circle
where it says CT-4/21-01. Are your initials there?
A. Yes, they are.
Q. Have you also compared that Item 01 to 06?
A. Yes, I have.
Q. Are they different?
A. Yes, they are.
Q. This is marked Government's Exhibit 737. Do you recognize
that?
A. Yes, I do.
Q. Does it have your initials on the back?
A. Yes, they are.
Q. Did you seize that item on April 21, 1995?
A. Yes, I did.
Q. Is that a photograph -- is the photograph on the screen a
photograph of Government's Exhibit 737?
A. Yes, it is.
MS. WILKINSON: Your Honor, we'd offer 737 for
demonstrative purposes.
MR. TIGAR: No objection for demonstrative purposes.
THE COURT: Yes. 737 received for demonstrative
purposes.
MS. WILKINSON: Okay.
Ronald Kelly - Direct
BY MS. WILKINSON:
Q. Now, can you hold this up to the jury and tell the jury how
737 -- which is 01, is it not?
A. Yes, it is.
Q. -- how 01 is different from 06?
A. The bagging itself is the first thing I'd start with. Just
the item number, CT-4/21-01, I assigned a unique item number to
each bag of evidence. That's the differentiation.
Second differentiation is the item itself is different
physically. It's slightly larger and it has unique
characteristics. Also has two parts in this particular bag,
also.
Q. Let's go on through the photographs, if we could,
Mr. Kelly. Just push the side of the pen to clear your
markings.
Now, this next item, next photograph, doesn't show any
wood panel. Is that correct?
A. No, it does not.
Q. Okay. Let me zoom back out. All right. We'll go next in
line. Does this show a wood fragment?
A. Yes, it does.
Q. And have you looked at that wood fragment before coming to
court today?
A. Yes, I have.
Q. And do you recall what CT number you assigned to that wood
Ronald Kelly - Direct
fragment?
A. That would be CT-4/21-04.
Q. And have you compared 04 to 06?
A. Yes, I have.
Q. And what are your conclusions?
A. The items aren't anything similar to one another.
Q. All right. Now, this next photograph: Does it focus on
any wood panel?
A. There is no particular focus on any wood panel.
Q. If we zoomed in on a certain portion, would we see a little
bit of a wood panel?
A. Yes. There are what appears to be several small wood
panels in the photo.
Q. Is that one there right in the center?
A. Yes, it is.
Q. Could you circle that for the jury.
And is that item different from 06?
A. Yes, it is.
Q. How is it different?
A. That item is much smaller than 06.
Q. Does it have -- what about the paint?
A. I'm sorry. I'm not sure I understand your question.
Q. Does it have the same red and yellow -- same amount of red
and yellow paint on it?
A. It has red and yellow paint but not the same amount of
Ronald Kelly - Direct
each.
Q. What about the shape?
A. The shape is distinctly different, also.
Q. Come back out. If you could remove the markings again.
Now, here's the next photograph in the series. Does
this show a wood panel?
A. Yes, it does.
Q. And is this anything like 06?
A. No, it is not.
Q. Do you recall what CT number you gave this item?
A. This is CT-4/21-05.
Q. And have you reviewed that item and its bag before coming
to court today?
A. Yes, I have.
Q. And does it have a marking of "CT-4/21-05" on the bag?
A. Yes, it does.
Q. And does it compare at all to 06?
A. Nothing -- there is no similarity whatsoever.
Q. Now, let's go -- the next photo in line. Is this the one
you've already shown us?
A. That's correct.
Q. And what item is depicted in this photograph?
A. Depicted in that item is 06.
Q. Next here we have what's -- what's depicted in this
photograph?
Ronald Kelly - Direct
A. Depicted in that photograph is a metal frame.
Q. Is that the same frame we saw in the earlier photograph?
A. Yes, it is.
Q. And here: What's depicted in this next photograph?
A. A metal piece.
Q. Do you see that pink marking around there?
A. Yes, I do.
Q. Do you know who put that pink marking there?
A. No, I do not.
Q. Did you receive any instructions as to look for items that
were marked with some kind of pink paint?
A. I was informed at one point some items were marked with
pink, and they were items of possible -- some significant
possibilities.
Q. Okay. Let's go on with the next one. This doesn't show
any wood panel, I take it?
A. No, it does not.
Q. And here: Why was this photograph taken?
A. I swabbed that particular item.
Q. Which item?
A. I'm sorry. The yellow item basically in the center of the
photograph.
Q. How did you indicate that on the evidence log and on the
photo log?
A. When I swabbed an item, an asterisk was placed in one of
Ronald Kelly - Direct
the columns on the evidence log.
Q. Do you recall what description you gave this item?
A. I believe it was labeled "cash" -- let me refer to it --
"metal cash box."
Q. Do you know whether that's a metal cash box?
A. Not for certain, no.
Q. Why did you describe it that way?
A. I believe I asked somebody; but again, I don't recall
exactly why.
Q. But you did swab that item?
A. I did swab that item.
Q. Is that indicated on your recovery lab -- log? Excuse me.
A. Yes, it is.
Q. Let's go to the next photograph. What's depicted here?
A. A piece of metal.
Q. Did you swab that piece of metal?
A. Yes, I did.
Q. So if we looked on your log, would that have a "no" next to
the item but an asterisk indicating a photo was taken of the
item?
A. That's correct.
Q. And here, what are we seeing in this photograph?
A. A piece of wood panel and fiberglass wood panel.
Q. And do you recall how these wood fragments were marked?
A. It was labeled Item CT-4/21-14.
Ronald Kelly - Direct
Q. Have you reviewed these items before coming to court today?
A. Yes, I have.
Q. Did you compare them to 06?
A. Yes, I did.
Q. Are they different?
A. They are very different.
Q. And finally, we have this item. Do you recognize that?
A. Yes, I do.
Q. Do you recall what CT number you assigned to that number?
A. Yes. That was 15.
Q. Have you compared 15 to 06?
A. Yes, I have.
Q. And are there differences between those two items?
A. Again, they are very different.
Q. What are the differences?
A. The amount of color on the panels and again the unique --
the size and the unique shapes.
Q. And is CT-4/21-15 shown in this photograph encased in a
bag?
A. The item is in a bag, that's correct.
Q. Is that bagged marked CT-4/21-15?
A. In the photograph?
Q. No, the bag that you reviewed before coming to court today.
A. I'm sorry. Yes, the bag itself was marked after I
recovered it.
Ronald Kelly - Direct
Q. Now, we've showed the jury all your photographs, and some
of these are in plastic bags when you photographed them; is
that right?
A. That's correct.
Q. Was 06 in a plastic bag when you photographed it?
A. No, it was not.
Q. Did you remove it from its location before you photographed
it?
A. No, I did not touch it before I photographed it.
Q. What did you do with it after it was photographed?
A. After I photographed it, I picked it up, it was placed in a
bag, sealed, and then at some point the date, the item number
and my initials were placed on it.
Q. Did you give the item to -- who did you give the item to?
A. I then gave the item to Agent Wilson.
Q. Now, why did you photograph some items in place and
photograph other items in a plastic bag?
A. Normally, I tried to photograph the items in place. There
were some items that were not photographed in place. They were
photographed in bags, and that was incorrectly done.
Q. But Item 06 that we're interested in today was photographed
in place?
A. Yes, it was.
MS. WILKINSON: We have no further questions, your
Honor.
Ronald Kelly - Direct
THE COURT: Mr. Tigar.
MR. TIGAR: May I recover the photograph book that he
has, your Honor?
THE COURT: Sure.
MR. TIGAR: Thank you.
Thank you, sir.
CROSS-EXAMINATION
BY MR. TIGAR:
Q. Mr. Kelly, a moment ago you said that -- my note says
"before I photographed it." You didn't do any of these
photographs; correct, sir?
A. I don't recall if I did any photographs or not.
Q. Did you have a camera?
A. There was a camera present with us, yes.
Q. My question is did you have a camera?
A. I don't recall having my own camera, no, sir.
Q. And you do recall testifying on a prior occasion that the
photographer with you the entire time was Special Agent Wilson;
correct?
A. That's correct.
Q. And is it your testimony now that you were in error on that
prior occasion?
A. I may have been mistaken as far as my recollection of who
took the photographs. That's correct.
Q. And with whom did you discuss the possibility that you
Ronald Kelly - Cross
might have been mistaken about who took the photographs?
A. I have spoke with Agent Wilson about this.
Q. So you and Agent Wilson have, what, compared notes on what
happened that day so that you could try to figure out who took
the pictures? Is that correct?
A. No, sir. We did discuss the issue, though.
Q. And -- well, what discussion did you have?
A. Again, a general discussion of the crime scene and the
events that occurred.
Q. Now, was this after you had previously testified that he
was the one that took the pictures that you had this
discussion?
A. Yes, it was.
Q. Did anybody ask you to have the discussion?
A. No.
Q. You did it on your own?
A. We were present in -- at a time that a conversation
occurred. I don't recall exactly when, sir. I'm sorry.
Q. Do you know where you were?
A. I was here in Denver.
Q. Were you in the courthouse?
A. No, sir.
Q. Were you at the command post?
A. Yes, sir.
Q. And did you know at that time that both you and Agent
Ronald Kelly - Cross
Wilson were going to be witnesses here?
A. Yes, I did.
Q. And did you understand that both you and Agent Wilson might
be asked about who took the photographs?
A. Yes, sir.
Q. Had you received any instructions from anyone as to whether
or not two witnesses who were going to appear in the same
proceeding to discuss the same subject, both Government
employees, should or should not be discussing their testimony
with one another?
A. I'm sorry. We weren't discussing our testimony. We were
reviewing materials that we both acquired at the crime scene or
both utilized at the crime scene.
Q. Did you -- had you had any instructions before this
conversation as to whether you and someone else who was going
to be a witness should have a discussion concerning the subject
matter of the testimony that both of you would be expected to
offer?
A. I was not given instructions that I was aware of, no.
Q. And how long have you been an employee of the Federal
Bureau of Investigation, sir?
A. 19 years.
Q. And during that time, how many times have you offered
testimony in court?
A. Approximately 10 times.
Ronald Kelly - Cross
Q. And are you aware of any rule concerning whether or not
people, two people, who are going to offer testimony on the
same subject should be discussing the subject matter of that
testimony before they come to court?
A. I'm sorry. Would you please repeat the question.
Q. Yes, sir. Are you aware of any rule that deals with
whether or not two people who are going to be giving testimony
on the same subject should be discussing that testimony before
they come to court?
A. No, I'm not.
Q. That's never come up. Is that your testimony, sir?
A. I'm -- my response was I'm not familiar with that rule,
sir.
Q. Okay. Can you recall when you had this discussion with
Agent Wilson?
A. I don't recall the exact date.
Q. Can you give me an approximate date, sir?
A. Approximately a month and a half or two ago.
Q. And was that the only conversation that you had with Agent
Wilson on this subject?
A. The conversation I had with Mr. Wilson concerned -- I'm
sorry. Would you please repeat your question one more time.
Q. Yes, sir. Was the conversation you're telling us about the
only conversation that you have had with Agent Wilson about the
evidence-recovery process of the 21st of April, 1995?
Ronald Kelly - Cross
A. I have -- of course, on the day of the recovery --
Q. Yes, sir.
A. -- of the recovery, I spoke with him then. I have spoke
with Mr. Wilson on several occasions in the past several
months, too; but as far as discussing our testimony, our
conversations did not address our testimonies. Our
conversations addressed our review of evidence that we had in
front of us.
Q. And did that evidence include matters concerning this item
06?
A. 06 may have come up in the conversation. I don't recall
specifically, though.
Q. And did the evidence include photographs that were taken,
evidence that you were reviewing -- photographs that you had
taken?
A. The evidence we were reviewing included photographs.
Q. During those discussions, how many times did you talk about
the issue of who took the photographs?
A. I don't recall how many times, but the matter did come up.
Q. And when was the most recent such conversation that you can
recall in which you were reviewing the evidence with Agent
Wilson together?
A. It would be at least several days ago.
Q. And where were you when you and Agent Wilson were having
this discussion several days ago?
Ronald Kelly - Cross
A. This would have been at the beginning of the week, and it
would have been in the command post.
Q. Was anyone else present other than you and Agent Wilson
when you were having these discussions a few days ago?
A. Not that I recall, no.
Q. During any of the discussions you had with Agent Wilson
after the 21st, was anyone else present other than you and
Agent Wilson?
A. Previous discussions from several months ago may have
involved some other individuals; that's correct.
Q. Who were the other individuals in these previous
discussions several months ago, sir?
A. Again, I reviewed and prepared for this trial at the
command post here in Denver, and that occurred in the -- I'm
sorry. That occurred at the command post. Excuse me.
Q. Well, who was present, sir?
A. Oh, I'm sorry. I don't recall who was present with my
discussions with Agent Wilson about that. It was, again, a
casual conversation with Agent Wilson as we reviewed some of
the material we had.
Q. Do you remember if any Government lawyers were present
during any of these conversations?
A. Not the conversations I had with Mr. Wilson, no. Those
conversations were in -- just between Agent Wilson and I on
those times with no other Government witnesses participating
Ronald Kelly - Cross
that I recall.
Q. Well, what was the purpose of having these conversations
with Agent Wilson?
A. Again, we were reviewing photos and other materials
concerning the recovery.
Q. And was one purpose to see how your recollections differed?
A. No, sir.
Q. Now, sir, you testified that you came to the lot on the
21st. Is that right?
A. That's correct.
Q. And during this recovery process, were you wearing gloves?
A. Yes, I was.
Q. What kind of gloves were you wearing?
A. Disposable latex-type gloves.
Q. And are those provided by the FBI, or are they provided
by -- were they provided by other people on the scene?
A. They were provided by the FBI, and those are gloves that I
brought with me.
Q. And are -- do they have a powder substance in them, or --
to help you get them on and off easier, or are they powderless?
A. The ones I use are powderless.
Q. Were you aware that other people at the crime scene had
gloves that had powder in them?
A. I was not aware of that.
Q. Do you know that there are latex gloves that have powder in
Ronald Kelly - Cross
them?
A. I know that's a type of latex glove; that's right.
Q. Are you familiar, based on your 19 years of experience,
what substance is used to powder the inside of latex gloves?
A. Talc, I believe.
Q. Are you aware that calcium carbonate is also used to powder
the inside of disposable latex gloves?
A. I'm not aware of that.
Q. Now, when you arrived at the parking lot, you saw some pink
paint on the ground. Is that fair?
A. Yes.
Q. And you had been told something about that pink paint. Is
that right?
A. Yes.
Q. What had you been told about the pink paint?
A. I was told the pink paint was marking some items, some
significant items that may be recovered at a later time.
Q. Who told you that?
A. I don't recall who I heard that from.
Q. Where did you hear it?
A. At the crime scene itself.
Q. That is to say, right at the parking lot?
A. I don't recall -- I don't recall where again. It was just
in the -- at the crime scene.
Q. Now, you arrived in Oklahoma City, sir, the morning of the
Ronald Kelly - Cross
20th of April. Correct, sir?
A. That's correct.
Q. You spent the night of the 19th in Little Rock, Arkansas.
Is that right?
A. Yes, I did.
Q. And why did you -- what was it that happened that caused
you to stop in Little Rock, Arkansas, overnight?
A. Bad weather.
Q. Weather that prevented your aircraft from landing at Will
Rogers Airport, Oklahoma City; correct?
A. Prevented us landing at Oklahoma City; that's correct.
Q. Yes. And Will Rogers Airport just happens to be the name
of the airport. You knew that?
A. Thank you.
Q. All right. Well, I wasn't trying to mislead you, sir.
So what time did you all get there on the 20th?
A. In the a.m. I don't recall exactly what time.
Q. And was it clear from what you could see on your way
downtown that it indeed had been raining the night before?
A. I'm not sure I follow your question.
Q. Well, was it wet, the ground? That's what I mean.
A. I don't recall if it was still wet or not.
Q. But in any event, whatever the weather was, your plane
wasn't able to get into Oklahoma City. Correct?
A. That is correct.
Ronald Kelly - Cross
Q. Now, did you then start attending some briefings about what
you were to look for and how you were to do it?
A. There was a morning briefing; that's correct.
Q. That was done by Special Agents Williams and Hahn; is that
right?
A. I don't recall who gave the briefings any particular
morning.
Q. Well, the morning of the 21st. You don't remember who gave
the briefing?
A. No, I don't.
Q. Were you briefed on the 20th or the 21st by Special Agents
Williams and/or Hahn?
A. Not that I recall by date, no.
Q. Now, Mr. Burmeister was with you; is that right?
A. Yes, he was.
Q. And Mr. Burmeister is a chemist from the -- he's a special
agent. Right?
A. Yes, he is.
Q. And he is from the FBI Laboratory; right?
A. Yes, he is.
Q. And was it he that asked you to go with him to help him?
A. My supervisor directed me to go, and I accompanied
Mr. Burmeister there.
Q. And who was your supervisor, sir?
A. Roger Martz.
Ronald Kelly - Cross
Q. Mr. Martz. Okay. Now, you came prepared to take
swabbings; correct?
A. That's correct.
Q. Both dry and wet. You've testified about that on direct
examination; right?
A. Yes.
Q. And the purpose of those was to identify potential residues
and to identify background levels. Is that right?
A. It would be more accurate to say to collect residues and
collect background, yes.
Q. Okay. To collect residues and to collect background.
Okay. And the residue -- that means, what, residue of a blast?
Right?
A. Chemical residues.
Q. And when you got to that parking lot, did you see that a
number of automobiles had caught fire and burned?
A. Yes. That was quite evident.
Q. And what does it mean to swab for background levels?
A. Swabbing for background levels would be taking samples away
from your area of interest to see what levels of chemicals
would be present.
Q. Now, you testified on direct examination that you used a
technique where you collected evidence and put it into a
plastic bag. Do you remember that?
A. I'm sorry. Please repeat the question.
Ronald Kelly - Cross
Q. Yes. You collected evidence and put it into a plastic --
into plastic bags. Is that right? Ziploc bags?
A. On the day of the 21st?
Q. Yes, on the day of the 21st. Is that right?
A. Yes, I did.
Q. And who made the decision to use plastic bags?
A. I discussed that with Agent Burmeister, and it was his
decision.
Q. Yes, sir. Are you aware of any chemical -- those are
polyethylene bags?
A. Ziploc polyethylene bags.
Q. Now, Ziploc is permeable to certain items that are found in
commercial explosives -- correct -- or do you know that one way
or another?
A. Yes, I do.
Q. And what is the answer?
A. Yes, there are some.
Q. And how did you learn that?
A. Through my --
Q. Pardon?
A. Through my experience at the laboratory.
Q. Now, you kept a diary, did you not, of your work while you
were in Oklahoma City. Is that correct?
A. I kept personal notes in my day planner; that's correct.
Q. And you also took some -- you also made some notes, did you
Ronald Kelly - Cross
not, concerning the photographs that were taken?
A. I'd have to see what notes you are referring to there, sir.
Q. All right, sir. I'm going to show you what's been marked
as Defendant's E53.
MR. TIGAR: May I stand next to the witness, your
Honor?
THE COURT: Yes.
BY MR. TIGAR:
Q. Page 1, and I'm referring to these Bates' stamped pages.
That's from your Daytimer. Correct?
A. That's correct.
Q. Page 2 is from your Daytimer; correct?
A. Yes.
Q. The writing on these pages is yours; correct?
A. Yes, it is.
Q. Page 3 is from your Daytimer?
A. Yes.
Q. The writing is yours?
A. Yes, it is.
Q. Page 4 from your Daytimer, the writing is yours?
A. Yes, it is.
Q. Page 5 from your Daytimer, the writing is yours; correct?
A. Yes, it is.
Q. Pages 6, 7 and 8: Do you -- do you know what those are?
A. Yes, I do.
Ronald Kelly - Cross
Q. They're typewritten versions of what's on your Daytimer.
Correct?
A. That is correct.
Q. Now, page -- the next, 9, 10, 11, 12, 13, 14, and 15 are
copies of the evidence-recovery log; correct?
I'm just down to 15, sir.
A. Okay.
Q. Is that right? That's what that is?
A. Those are, yes.
Q. Okay. And what -- and page 16, the circled numbers: Is
that your writing?
A. Yes, it is.
Q. And do you know who made the marks down here: F number, so
forth and so on?
A. I did that, also.
Q. Okay. So that's yours.
MR. TIGAR: We offer E53, your Honor.
MS. WILKINSON: We have no objection.
THE COURT: E53.
MS. WILKINSON: Your Honor, I'm sorry. We do, because
it contains notes -- portions of it contains notes about other
testimony he's not testified to, other days of what he did in
Kansas and things like that; so I would object to those pages.
MR. TIGAR: All right. Your Honor, we'd be happy to
redact whatever the Government wants, provided we could have in
Ronald Kelly - Cross
the pages 1, 2 --
MS. WILKINSON: 2 has some of those materials we're
talking about.
MR. TIGAR: And 16.
MS. WILKINSON: We'd object to page 2 because it
has -- let me show Counsel.
THE COURT: All right.
MR. TIGAR: Then, your Honor, we would redact, then --
I see what Government Counsel is talking about -- the entries
that begin with -- on page 2 with the words "flew to."
MS. WILKINSON: It's the 22d in his Daytimer. We'd
object to anything from the 22d down.
MR. TIGAR: From the 22d on, we'd agree to redact
those and redact out all of page 3, all of page 4, all of page
5, all of page 6, because the writing is legible. We don't
need the typewritten version, and then --
MS. WILKINSON: All of page 7 and 8.
MR. TIGAR: Excuse me. All of page 7 and 8.
MS. WILKINSON: And the rest is fine.
MR. TIGAR: And then the rest is fine, your Honor. So
with those changes, which I can make immediately, your Honor,
with -- if Counsel and I can have a moment with a pair of
scissors, then the exhibit as it comes in would be exactly what
we've agreed to.
MS. WILKINSON: We don't need to do the cutting right
Ronald Kelly - Cross
now.
MR. TIGAR: I'm not going to show any of it to the
jury, your Honor. That has not been agreed to.
MS. WILKINSON: Okay.
THE COURT: Then E53 is received with agreement on
redaction.
MR. TIGAR: Thank you, your Honor.
BY MR. TIGAR:
Q. Now, sir, I'm going to show you page 16 of what's been
received now as E53.
Now, this is a copy of the evidence-recovery log or a
page from it; correct, sir?
A. That is a document I prepared their a copy of the evidence
log.
Q. Right. And you went through, then, and got Frame No. 5 --
well, let's just look. Here's the top. Here's Item 01 --
correct?
A. Yes, it is.
Q. -- that we've been talking about. Wood panel, yellow and
red; correct?
A. Yes.
Q. And you put F No. 5. What does F No. 5 refer to?
A. Actually, that's corrected. That should be F1. The 1 is
not very clearly stroked through the 5, but that should be F1.
Q. Oh, that's F1?
Ronald Kelly - Cross
A. Yes.
Q. And then is a 5 written over the 1?
A. I believe I wrote the 5 first, realized I was in error,
then wrote the 1 on top.
Q. All right. And what does the 5 mean then?
A. The 5 is the frame number from the back of the photograph
in the book.
Q. And now down here, 04, I see an F, and what is that entry
there? F something?
A. 2.
Q. F No. 2?
A. Yes.
Q. And you wrote that?
A. Yes, I did.
Q. And what did you intend to designate when you wrote F No.
2?
A. The F2 is the -- excuse me -- photo log entry for that
item.
Q. So F2, we're supposed to understand, refers to what Agent
Wilson had prepared showing you now, E5, F2. Correct? I can
zoom in and see Frame No. 2, wood panel, and that's No. 04.
Correct?
A. That is correct.
Q. So the F2 refers to Frame No. 2; correct? Is that right?
A. The F2 on my -- on the evidence log refers to Frame 2 from
Ronald Kelly - Cross
this photo list.
Q. From this photo list that is signed by Agent Wilson;
correct?
A. That is correct.
Q. All right. Then after you wrote F2, you went across and
you wrote a 7 with a circle. Correct?
A. Yes, I did.
Q. Well, what does 7 with a circle refer to?
A. That refers to the frame number on the back of the
photograph.
Q. So that these numbers 5, 2, 3, 4, 5, 6 -- well, this -- up
here, the top, you wrote a 1 first and then -- or a 5 first?
I'm sorry.
A. I wrote the 5 first and then struck through with a 1.
Q. So 1, 2, 3, 4, 5, 6, 7, 8, 9, 10 refers to the numbers on
Agent Wilson's log; right?
A. On the photo log.
Q. On the photo log that we've just taken a look at; correct?
A. Yes.
Q. And then you went back and correlated that to the actual
frame numbers as shown on the pictures themselves. Is that
right?
A. I'm not sure of the exact sequence, but the column to the
right are the frame numbers from the back of the photographs.
That is correct.
Ronald Kelly - Cross
Q. And is it fair to say, sir, that there is simply no
rational correspondence between Agent Wilson's listing of the
frame numbers at the beginning of his photo log and the way in
which the frames here, as you've circled them, actually appear?
A. There is an obvious error on his photo log, yes.
Q. And again, you don't remember who took the pictures;
correct?
A. I don't recall who took all the pictures. My recollection
was that Agent Wilson was the photographer.
Q. Your recollection is that he was the photographer?
A. I'm sorry. The best my recollection is that he was the
photographer, but I could be mistaken, yes.
Q. So -- all right. Now, in a prior proceeding, you testified
under oath he was the photographer? Right?
A. Yes, I did.
Q. And then you came in this morning and testified that you
weren't sure; correct?
A. That's correct.
Q. And now you're saying that to your best recollection, he
was the photographer; rights?
A. No, I'm still saying I'm not sure. The best my aging
memory can tell me, it was Agent Wilson, but again, I could be
incorrect. There could be other persons that took photographs.
Q. All right. Now, I want to start with these pictures. And
this is, I represent to you -- it's got a 4 on it. That's a
Ronald Kelly - Cross
Bates' number, but it's also the frame number that's on the
back. Right?
A. I'd have to see the book to make that correlation, sir.
Q. Okay. Do you see it there?
A. Yes, I do.
Q. I'm going to turn it back over. So this is 4. Correct?
What are we looking at here?
A. There is a yellow object in the center of a frame, picture.
Q. Okay. Did you recover that object?
A. No.
Q. Okay. So this object does not appear on any evidence log;
is that right?
A. No, it does not.
Q. Okay. And do you know why a picture was taken of it and
preserved in a book if it didn't appear on an evidence log?
A. No, I did not.
Q. Do you remember directing the picture be taken?
A. I don't recall directing that picture, no.
Q. Going to turn the page. Here is something that's marked on
the front 005. Watch. I'm going to turn over. This is Frame
No. 5. See that?
A. Yes, I do.
Q. Now, this, you testified, is a picture of the item 01.
Correct?
A. That is correct.
Ronald Kelly - Cross
Q. And that is called -- it's called Frame 5 on here and it's
called Frame 1 on Agent Wilson's log; correct?
A. Correct.
Q. Now, here are some of this pink spray we've been talking
about before; correct?
A. Could you move the photograph up a little, please?
Q. Sure.
A. There we go.
Q. Does that appear to be the pink spray?
A. That appears to be pink paint, yes, sir.
Q. All right. Does it appear to be spray can paint?
A. I can't tell that from the photograph.
Q. All right. It doesn't -- well, does it appear to be
sprayed on, or brushed on, or can you tell?
A. I can't tell from the photograph.
Q. That day when you were in the photograph, could you tell
whether the paint you saw, the pink paint, appeared to be
sprayed on, or brushed on?
A. I can't recall.
Q. Okay. We'll look at some others in a bit.
Here is the item, and we can see 01. Correct?
A. Yes.
Q. We can see the initials "RLK." Is that right?
A. Yes, sir.
Q. Now, why did you choose to put this one into the bag and
Ronald Kelly - Cross
write your initials on it and then put it down to be
photographed? What made you choose that method of recovery?
A. I don't really recall, sir.
Q. Was that the correct method of recovery?
A. That was not the correct method.
Q. And at that time you had been in the FBI how many years,
sir? 17?
A. 19 years. I'm sorry. At that time?
Q. At that time.
A. Your math sounds about right. About 17.
Q. And was Mr. Burmeister present with you that day in the
parking lot?
A. Not during the collection of these items. No, he was not.
Q. Now, I'm going to turn. And this is labeled 006 there.
Turn it over on the back. See the number 6?
A. You have your -- I'm sorry. There you go. Yes.
Q. 6. Okay.
Now, what's this?
A. You have your zoom on right now.
Q. I'm sorry. Let me pull my zoom -- the zoom out. See what
this is.
A. I'm sorry. Could you repeat your question.
Q. Yes. This is Frame 6. Correct?
A. Yes, it is.
Q. And what is it?
Ronald Kelly - Cross
A. There are bricks present, metal frames, wood block, appears
to be a small piece of plastic, some other miscellaneous items.
Q. And did you collect any pieces of wood panel from this
area? Did you see any pieces of wood panel there?
A. There are no pieces of wood panel in the photograph.
Q. Now I'm going to show you what's been received as page 16
of E53. Is that your circled No. 6 there?
A. Yes, it is.
Q. Does it correspond to this item "pieces of wood panel"? Is
it in the same line as "pieces of wood panel"?
A. It's on the same line, yes, sir.
Q. Well, do you see any pieces of wood panel in the frame
that's numbered 6?
A. No, there are not.
Q. Can you tell the jury, please, how the number 6 in your
writing came to be on this log if the frame numbered 6 doesn't
have any pieces of wood panel on it?
A. Omitted on the line entry was the item of plastic, which is
also contained in 02 and that is pictured in the photo.
Q. Are you telling the jury that this evidence log, when it
says "pieces of wood panel" actually should "read piece of wood
panel and piece of plastic"?
A. I did not maintain this; but yes, that would be a more
accurate description.
Q. Well, you agree with me there are no pieces of wood panel
Ronald Kelly - Cross
visible in this photograph; correct?
A. Not in the photograph, sir.
Q. All right. And the pieces of plastic are where? Is this a
piece of plastic? Where is --
A. I'm sorry. I don't see you pointing at anything. Would
you like me for me to circle it?
Q. With the light pen, just show me where the plastic is.
That's that piece right there; correct?
A. That is correct.
Q. Now let's take a look at the next one. And this is -- I'm
going to show you the back of it, sir. You can verify. That's
No. 7. Correct?
A. That's correct.
Q. Okay. And we're looking here, and we should find that
there is a picture of a wood panel there. Correct?
A. Yes, there is.
Q. On your log. Okay. Now, this is another piece of wood
panel that's in a bag; right?
A. Yes, it is.
Q. Now, this piece of wood panel doesn't have any writing on
it. The bag doesn't have any writing on it. Correct?
A. Not as pictured on the photograph. I see no writing on it.
Q. All right. And is it your memory that for this one, you
picked it up, put it in a bag, set it back down on the ground
but didn't put any writing on it? Is that what happened? Is
Ronald Kelly - Cross
that what happened?
A. I can only tell you what's evident in the photograph.
There is no writing on the bag.
Q. Do you have any independent memory of what you did that
day?
A. I don't have an independent recollection of that action.
Q. Is this the proper way to document the recovery of evidence
at a crime scene?
A. Again, no, it is not.
Q. And in terms of a scale, is it -- is it more improper to
have a picture of it without any writing on the bag, or not, or
the same?
MS. WILKINSON: Objection, your Honor.
THE COURT: Sustained.
BY MR. TIGAR:
Q. Now, sir, I'm going to turn to No. 9, Bates' stamp No. 9.
And we can see that that is photograph No. 9. See that, sir?
A. Yes, I do.
Q. Now, here, the item is a piece of wood panel; correct?
A. Yes, it is.
Q. And this one is not bagged; correct?
A. No, it is not in the photograph.
Q. All right. And why did you decide to change from
photographing after bag to photographing before bag?
A. This is the proper procedure to photograph an item in place
Ronald Kelly - Cross
before it's recovered.
Q. I asked you why did you decide to change.
A. I'm sorry. There is --
Q. I'll take this off now. I just want to look through it
some more.
Why did you decide to change from bagging to not
bagging?
A. Again, the previous instances you pointed out were
mistakes.
Q. And you didn't want to be making that mistake anymore;
correct?
A. That would be a logical assumption, yes.
Q. Okay. Well, let me show you photograph No. 17. Let's
verify. There we are, and here on the back is 17. Correct?
A. Yes, it is.
Q. Now, here, does 17 indicate that this is the very last
picture that was taken; that is to say, that this picture was
taken after the picture of 06?
A. Yes, it is.
Q. But here, we have it in a bag; right?
A. That's correct.
Q. So did you decide to recover some and put them in a bag and
then changed your mind that that wasn't the right procedure,
and then took the pictures of them without the bag for a while
and then put them back in the bag?
Ronald Kelly - Cross
MS. WILKINSON: Objection to compound question, your
Honor.
THE COURT: Overruled.
THE WITNESS: If I could address, there were several
questions --
BY MR. TIGAR:
Q. Sure. What is it that you decided to do about changing the
way in which you were photographing these items?
A. There may have been reasons why items were not photographed
in place. One reason would be if I had --
Q. Excuse me, sir. Not what may have been. Okay? I want you
to give us your memory as you sit there today.
A. I have no --
Q. What do you remember about why you changed?
A. I have no independent recollection of why I would have
changed or why a particular item was photographed before or in
a bag.
Q. Now, have you had discussions with anyone about why the
changes took place?
A. No.
Q. Now, sir, I'd like to show you what's been marked here as
defendant's -- excuse me -- as page 15. And I'll turn it over.
You can verify that that's Frame 15. Correct?
A. Yes, it is.
Q. Is that right? Okay. Now, here we see an item that was a
Ronald Kelly - Cross
metal frame. You took a swabbing somewhere in here. Correct,
sir?
A. I took a swabbing on the metal piece. Yes, sir.
Q. And was it the metal piece that had the paint on it, or
another metal piece?
A. If I may circle the piece, I can indicate to you.
Q. Yes, please do.
Now, we see on here this paint. This paint on the
ground. Correct?
A. Appears to be paint.
Q. Can you tell from this picture whether that was painted on,
or sprayed on?
A. No, I do not know.
Q. And do you have a memory from that day as to whether it
appeared to be painted on, or sprayed on?
A. No, have I no independent recollection of that.
Q. All right. Now, this -- you see this Pennzoil can up here.
Right? See the Pennzoil bottle?
A. Yes, sir.
Q. And that was in that position at the time that you took
your swabbing; correct?
A. I don't have an independent recollection of that.
Q. Now, sir, this is the Frame 10. Do you remember that, or
do you want me to show you the back?
A. If you'd show me the back so I could clarify that.
Ronald Kelly - Cross
Q. This says 10. I'm going to show you -- there. You see the
10?
A. Yes, I do.
Q. Okay. Now, that, you've told us, is what you identified as
a picture of 06, the wood panel. Correct?
A. Yes, sir.
Q. And the wood panel is off over here to the side where my
finger is pointing. Right?
A. Yes, it is.
Q. Now, would it be fair to say, sir, that for every other
wood panel of which you have a picture, the item that you're
photographing is in roughly the center of the picture?
A. Not necessarily.
Q. All right. Here's 12. Item is in the center; correct?
A. Well, sir, if you'd start at the beginning and we could
review each one.
Q. All right. Let's start at the beginning.
This we established, No. 4, we don't know what this
is. Right?
A. No, we don't.
Q. Here's No. 1; correct?
A. Yes.
Q. In the center?
A. Yes, that's the way -- I had that -- I effected that
picture to be taken with the item in the middle.
Ronald Kelly - Cross
Q. Here is a picture that is labeled "wood panel" but has no
wood panel on it; correct?
A. That is correct.
Q. But it does have a piece of plastic; correct?
A. Yes, it does.
Q. Here is 07. There is the wood panel and it's in the
center. Correct?
A. That one, it is.
Q. Do we know what this is?
A. That's a general shot which encompasses several wood
panels, and they are throughout the photo.
Q. Right. And in this general shot, you didn't recover any of
those wood panels, did you?
A. Actually, there is one wood panel pictured in there that I
did recover.
Q. And what evidence number in your 01 through 15 is that?
A. I'd need to refer to the log, I believe. It is --
Q. All right. I'll put the log up. Go ahead.
A. I'm having a hard time reading it at that magnification.
MR. TIGAR: May I approach, your Honor?
THE COURT: Yes.
THE WITNESS: I'd request to check the item itself,
but I believe you'll find that item in CT421-10.
BY MR. TIGAR:
Q. CT421-10. All right?
Ronald Kelly - Cross
A. If I could see that, I could confirm that for you.
MR. TIGAR: Well, I certainly don't have it.
MS. WILKINSON: We have it. We can mark it as a
Government exhibit for demonstrative purposes.
MR. TIGAR: For demonstrative purposes, yes.
BY MR. TIGAR:
Q. And we'll put the picture back up in the meantime, sir.
MS. WILKINSON: It's Government's Exhibit 2118 for
demonstrative purposes.
BY MR. TIGAR:
Q. You're testifying, sir, that that which is CT-4/21-10 is
what we're seeing in Frame No. 8; is that right?
A. There is an item in your photograph that can be found in
10. That is correct.
Q. All right. Now -- now I'm going to show you your log
again; and there is no Frame 8 on here, is there, sir?
A. No, there is not.
Q. So whatever it is that's depicted here in Frame No. 8, your
accounting of Frame No. 8 didn't make its way onto your
identification system that you prepared; is that correct?
A. That's correct.
Q. All right. Here's Frame No. 9, sir. Wood panel, piece in
the center. Correct?
A. That is right.
Q. Here's -- now, here's No. 10. Right?
Ronald Kelly - Cross
A. Yes, it is.
Q. And our wood panel, No. 10, which is 06 -- right -- is
06 -- right?
A. That's correct.
Q. And that's over at the side; correct?
A. Yes, it is on the side -- in the side on that photograph.
Q. And the center -- the item that appears to be centered is
this metal piece; correct?
A. That appears to be more in the center, yes.
Q. Now, 11: Is that a picture of that same metal piece we
were just looking at?
A. Yes. In that one, that's centered in the photograph.
You're correct.
Q. Here's 12. That's the piece of evidence -- correct -- I'm
pointing to?
A. That's the item I swabbed. That's correct.
Q. And that's centered. Right?
A. Yes, it is.
Q. Now, 13 is a general shot; correct?
A. I'm not sure why that photograph was taken.
Q. Well, whether or not it -- that's why it was taken. You
labeled it as "gen. shot." Correct?
A. Yes, I'm sorry. That's a correct label for that
photograph.
Q. So that's correct, general shot.
Ronald Kelly - Cross
Then 14 is what you call the cash box, and you took
swabs from it; right?
A. That is correct.
Q. And that's centered; correct?
A. Yes, it is.
Q. And in 15, it's this metal piece we're interested in.
Correct?
A. That's correct.
Q. And that's centered; correct?
A. Yes, it is.
Q. And 16: It this metal piece or this metal piece -- or
excuse me -- wood piece. Which one are we thinking about for
frame 16?
A. I believe both those pieces are recovered.
Q. All right. And the shot -- this piece here I'm looking at
is in the center; right?
A. Yes, it is.
Q. And the other one is right next to it; correct?
A. Above it, yes.
Q. Finally, No. 17, and that's centered. Correct?
A. Yes, it is.
Q. Now, looking back at No. 10, do you see the pink color over
on these bricks, sir? Do you see a pink color?
A. I can't clearly see that on the monitor, no.
MS. WILKINSON: Mr. Tigar, would you like to use this
Ronald Kelly - Cross
one?
MR. TIGAR: Oh, good. Thank you.
BY MR. TIGAR:
Q. We can hold this up for the jury.
Is that pink coloration there? Can you see that on
the picture?
A. Appears to be pink color there, yes.
Q. Okay. And is this pink color also that's on the ground
there?
A. Yes, I can see the pink color.
Q. You can see it. And did that resemble the pink -- thank
you -- does that resemble the pink that you had been told would
mark items of evidence as you saw it that day?
A. I don't recall that they referred to a pink color; just
that items would be marked.
Q. Be marked. Okay. So you weren't told about a pink color;
correct?
A. Not necessarily about color. I don't recall that.
Q. As you walked to the crime scene on the 20th, had you
observed a lot of pink circles?
A. Yes. That was quite evident.
Q. That was. For example --
THE COURT: Excuse me just for the record. 665 was
what was just now displayed?
MS. WILKINSON: Yes, your Honor.
Ronald Kelly - Cross
THE COURT: Okay.
MR. TIGAR: Yes. Thank you, your Honor.
I'm sorry, your Honor. My records show that
Government's Exhibit 736 is in.
THE COURT: Well, we'll check.
THE COURTROOM DEPUTY: No.
MR. TIGAR: Not in?
THE COURTROOM DEPUTY: No, it is not.
THE COURT: I don't show it from the official record.
MR. TIGAR: I've already showed it to one witness by
error, your Honor. I apologize. May I show it to the witness?
MS. WILKINSON: May I just ask Mr. Ryan? I believe
this is the item recovered from Mr. Sprague.
We have no objection. If it's not marked --
MR. TIGAR: My recollection is it came in through
Mr. Sprague. 736.
THE COURT: It's in now.
MR. TIGAR: Thank you, your Honor.
BY MR. TIGAR:
Q. Is this sort of pink line here the sort of thing you
remember seeing?
A. Yes, I do.
Q. There were a lot of those at the crime scene; right?
A. There were a number of them.
Q. And -- and you recognize that person; correct?
Ronald Kelly - Cross
A. That's blurry on my monitor.
Q. Okay. Well, doesn't matter.
Now, then, let's look at 06. Now, your testimony,
sir, is that when you recovered it, it was lying like this and
one edge of it was resting on that piece of metal; correct?
A. I don't recall mentioning the metal, but I recall saying it
was resting.
Q. Well, was it resting on a piece of metal?
A. I don't have an independent recollection of that; just what
I can observe from the photograph there.
Q. So you don't remember. Is that correct?
A. Not an independent recollection; correct.
Q. All right. And this scene here that we're seeing around
here: What is -- what is that on the ground? That's not the
natural condition of the parking lot, is it?
A. I'm not aware of what the natural condition is, sir.
Q. Now, the portion of the parking lot that you were searching
that day where this was recovered is adjacent to a restaurant
called the Athenian; correct?
A. I'm not aware of that.
Q. Was it adjacent to or next to a brick building?
A. I do recall that.
Q. And as you looked up, could you see that bricks had tumbled
down from a wall of the building and that a portion of the roof
had caved in? Do you remember that?
Ronald Kelly - Cross
A. I recall some building damage and a pile of bricks near
that location.
Q. And is -- from your recollection, what is this stuff on the
ground here? Is it dirt? Is it rubble? Is it cement? Is
it -- what is it?
A. I don't know.
Q. Did you care?
A. Again, the purpose of the photograph would help me
recognize some things there; but again, at the time, that did
not cross my mind, no, sir.
Q. Well, you -- did you intend at the time you collected this
item that it was going to be tested for any chemical residues
that might be present on it?
A. Yes.
Q. Did you take any samples from the ground upon which a
portion of it was resting -- or was a portion of it resting on
the ground?
A. It appears so, yes.
Q. Do you have an independent recollection as to whether a
portion was resting on the ground?
A. Yes, I do.
Q. Good. Now, did you take any tests or -- did you take any
samples from the portion of the ground on which it was resting
to determine what chemical substances might be present in the
environment where it had been?
Ronald Kelly - Cross
A. No.
Q. Had you been given any instructions from Mr. Burmeister or
others about the wisdom or necessity of taking samples from
places where things were found in order to make comparisons
about background levels of chemicals?
A. In general directions, yes. Specific directions on this
particular item of evidence, no.
Q. For this particular item of evidence, you used your own
judgment and discretion as to how you would recover it;
correct?
A. Yes.
Q. Nobody else told you; right?
A. Other than the general instructions I had received from
Mr. Burmeister earlier.
Q. All right. Mr. Burmeister gave you general instructions?
A. That is correct.
Q. What general instructions did Mr. Burmeister give you about
recovering items and preserving any traces of chemicals that
might be present in the environment from which they came?
A. On that particular -- on that particular day, none.
Q. You're talking about the 21st?
A. Yes, sir.
Q. Had you ever worked a crime scene before in which you had
had to recover items that had been resting on some other medium
or substance that might be a place where chemical residues
Ronald Kelly - Cross
would be present?
A. Could you repeat the question one more time.
Q. Yes. Have you ever worked a crime scene before where you
were collecting things that were going to be tested for
chemical residue?
A. Not that I recall offhand.
Q. So as of the 21st of April, had you had any training at all
or instructions at all about how to recover items of evidence
to determine what chemical residues might be present in the
environment from which they came?
A. I detect a couple questions there. I did receive training,
yes.
Q. All right. And did you receive training in how to collect
items from an environment or a place where there might be
chemical residues that would get onto things that were in that
place?
A. I'm not quite sure if I understand your question. I've
received training in the collection of evidence. I'm not sure
that answers your question, though.
Q. Did the training you received in the collection of evidence
include training about establishing background levels?
A. I don't recall that being in the training, no.
Q. You know what background levels are, don't you, sir?
A. Yes, I do.
Q. So you didn't have any training in that?
Ronald Kelly - Cross
A. I don't recall my training involving that right now.
MR. TIGAR: May I have a moment, your Honor?
THE COURT: Yes.
Perhaps this would be a good time to take a recess.
Would it?
MR. TIGAR: Thank you, your Honor. I just have a few
more minutes, if I can collect my notes.
THE COURT: All right. You may step down now.
Members of the jury, we'll take our recess, during
which, just as with all recesses, please avoid discussion about
the case or anything connected with the trial with other jurors
and all other persons and continue to avoid anything outside of
our evidence that could relate to the issues to be decided.
We'll -- we're going to go till 1:00 today, as has
been our Friday custom. This is Friday. We remember that.
And we'd like to go forward without another break; but if we
need to, we'll take another break, so we'll just see how it
goes.
You're excused now, 20 minutes.
(Jury out at 10:27 a.m.)
MR. TIGAR: May I approach, your Honor.
THE COURT: Yes.
(At the bench:)
(Bench Conference 95B2 is not herein transcribed by court
order. It is transcribed as a separate sealed transcript.)
(In open court:)
THE COURT: All right. We'll recess. 20 minutes.
(Recess at 10:29 a.m.)
* * * * *
INDEX
Item Page
WITNESSES
Alton Wilson
Cross-examination Continued by Mr. Tigar 11179
Redirect Examination by Ms. Wilkinson
Recross-examination by Mr. Tigar
Redirect Examination by Ms. Wilkinson
Ronald Kelly
Direct Examination by Ms. Wilkinson
Voir Dire Examination by Mr. Tigar
Direct Examination Continued by Ms. Wilkinson 11205
Cross-examination by Mr. Tigar
PLAINTIFF'S EXHIBITS
Exhibit Offered Received Refused Reserved Withdrawn
665 11204 11205
736
737 11209 11209
DEFENDANT'S EXHIBITS
Exhibit Offered Received Refused Reserved Withdrawn
E5
E5, page 3
E5 11205 11205
E53 11230 11232
* * * * *
Proceedings before the HONORABLE RICHARD P. MATSCH,
Judge, United States District Court for the District of
Colorado, commencing at 10:50 a.m., on the 28th 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 11264
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, 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 10:50 a.m.)
THE COURT: Be seated, please.
Counsel, will you approach.
(At the bench:)
(Bench Conference 96B1 is not herein transcribed by court
order. It is transcribed as a separate sealed transcript.)
11269
(In open court:)
(Jury in at 10:54 a.m.)
THE COURT: All right. Members of the jury, we'll
proceed; and as I indicated, we'll see how it goes. And if you
feel a need for another recess at some point, or an early
recess, we'll do so.
So let's return the witness.
All right. You may continue your examination,
Mr. Tigar.
(Ronald Kelly was recalled to the stand.)
CROSS-EXAMINATION CONTINUED
BY MR. TIGAR:
Q. And, Agent -- Mr. Kelly, excuse me. Mr. Kelly, it is the
case then that you did not take any soil samples or other
samples of any kind from the ground underneath or around what
you have numbered as 06; is that correct?
A. Yes.
Q. Now, I have these photographs out of order. But do you
remember looking at the back of each frame? Do you remember
looking at the backs of these photographs?
A. Yes.
Q. And will you tell the jury who is designated as the
photographer on the back of each of these.
A. Agent Wilson.
Q. And that when we see each of these, we mean each of those
11270
Ronald Kelly - Cross
that are in E5 that's now been received in evidence; is that
correct, sir?
A. That's correct.
MR. TIGAR: I have no further questions, your Honor.
THE COURT: All right. Any redirect?
MS. WILKINSON: Yes, your Honor.
Could I have the ELMO, please.
REDIRECT EXAMINATION
BY MS. WILKINSON:
Q. Mr. Kelly, you were reviewing the photographs with defense
counsel, and you were shown the photograph which is marked
Frame No. 6 on the back. Do you recall this photograph?
A. Yes, I do.
Q. And you told us there was a piece of plastic there?
A. Yes, there is.
Q. On your log, you just -- or on the log, it was described as
what?
A. Wood panels.
Q. Did you recover wood panels from this area?
A. Yes, we did.
Q. Were they large or small?
A. They were various sizes.
Q. Okay. And did you place them in a plastic evidence bag
with that plastic piece there in the photograph?
A. Yes, I did.
11271
Ronald Kelly - Redirect
MS. WILKINSON: Your Honor, we'd offer Government's
Exhibit 2117 for demonstrative purposes.
MR. TIGAR: No objection, your Honor.
THE COURT: All right. It will be received for
demonstrative purposes.
MS. WILKINSON: Thank you.
BY MS. WILKINSON:
Q. Mr. Kelly, you reviewed this Government's Exhibit 2117
before coming to court today; is that right?
A. I'm sorry. I can't see that from here.
Q. Did you review this before coming to court today?
A. Yes, I did.
Q. And does that tell you the CT number?
A. Yes, it does.
Q. What does it say?
A. CT-4/21-02.
Q. Was this the second entry on the log of Mr. Wilson's
photograph log? Do you need to see that to refresh your
recollection?
A. I -- yes, please. You asked me if it was the second entry?
Q. Yes.
A. No, it is not.
Q. Okay. Is it entered on that photographic log?
A. No, it is not.
Q. Okay. So this wasn't entered on the original log by
11272
Ronald Kelly - Redirect
Mr. Wilson; is that right?
A. No, it was not.
Q. Okay. But the photograph was taken?
A. Yes, it was.
Q. Have you compared Government's Exhibit 2117 to look for
that piece of plastic in the photograph?
A. Yes, I have done that.
Q. Is it in there?
A. Yes, it is.
Q. Why don't you pull it out and show it to the jury, and I'm
going to put the photograph back up. Let me see if I can zoom
in. Can you circle for the jury again that piece of plastic.
Is that the item you're showing the jury?
A. Yes, it is.
Q. You can put it back in the bag.
THE COURT: You want to make it clear to the jury I
think that that's not being offered as evidence in the case.
MS. WILKINSON: Yes, your Honor. Just to show to --
to correspond to the photograph.
THE COURT: Right.
BY MS. WILKINSON:
Q. Mr. Kelly, it's fair to say that you and Mr. Wilson made
some mistakes on the log back on April 21st, 1995?
A. Yes, we did.
Q. But let's get back to the piece of evidence that we're
11273
Ronald Kelly - Redirect
interested in, 06. You see that in front of you --
MR. TIGAR: I object to the sidebar remark about the
piece "we're interested in."
MS. WILKINSON: I'll withdraw that, your Honor.
BY MS. WILKINSON:
Q. Let's focus on 06. Can you see the Government exhibit
there, 665, in your hand?
A. Yes.
Q. Is that it?
A. Yes, it is.
Q. Does it have 06 marked on it?
A. Yes, it does.
Q. Does it have a Q number marked on it?
A. Yes, it does.
Q. What is the Q number?
A. Q507.
Q. Now, can you look at the exhibit number again? I think I
might have said 665 and I meant 664. On the actual item
itself, not the bag. On the item. On the item, not the bag.
A. 664.
Q. Okay. I'm sorry. I misspoke.
Is that the item you recovered on April 21, 1995, and
marked as 06?
A. Yes, it is.
Q. What is the Q number assigned to it?
11274
Ronald Kelly - Redirect
A. Q507.
Q. When you seized it, what did you do with it?
A. I picked it up, placed it in a plastic bag, sealed the bag.
The bag was labeled with the 06, date, and my initials, and
then I handed it to Agent Wilson.
Q. Was the bag sealed when you handed it to Agent Wilson?
A. Yes, it was.
Q. And is Government's Exhibit 664, or what we've been
referring to as 06, the item itself -- not the bag, the item --
is it in the same or similar condition to when -- as to when
you saw it back on April 21, 1995?
A. The item is substantially in the same condition.
MS. WILKINSON: We have no further questions, your
Honor.
THE COURT: Mr. Tigar.
MR. TIGAR: Limited, your Honor.
May I retrieve 2117, your Honor?
THE COURT: Yes.
MR. TIGAR: And 664.
RECROSS-EXAMINATION
BY MR. TIGAR:
Q. Mr. Kelly, you told us about 2117; correct, sir?
A. We just spoke about that.
Q. Yes.
A. Correct.
11275
Ronald Kelly - Recross
Q. And that is a bunch of wood fragments and one piece of
plastic; correct?
A. Yes.
Q. Now, what made you decide to put the wood and plastic
fragments in the same bag, sir?
A. We just collected several items and bagged them. No
particular reason.
Q. Now, all of the other wood fragments that you collected,
the large ones were put in separate bags?
A. Not necessarily, no. There's other items with multiple
items in them.
Q. 664 was put -- Government Exhibit 664 was put in its own
bag; correct?
A. That's correct. Some items were.
Q. And -- and the other items we looked at on these -- this
picture book, they were put in separate bags; correct?
A. Many items were put in separate bags; that's correct.
Q. And we saw pictures of them?
A. Yes, we did.
Q. Now, were you aware that what you -- what was going to
happen to things that you collected was that they were going to
be tested to see if they contained any residues? Right?
A. Yes.
Q. And do you know that residues, these things left, are
present in minute quantities at bombing crime scenes?
11276
Ronald Kelly - Recross
A. Yes.
Q. Are you aware of that?
A. Yes.
Q. And did you know that on the 21st of April?
A. Yes.
Q. Did you get any instructions about separately bagging items
recovered from the scene so that there was no
cross-contamination?
A. That's a two-part question.
Q. Okay. Do you know what cross-contamination is?
A. Yes, I do.
Q. Did you receive any instructions before your recovery on
the 21st of April about minimizing the risk of
cross-contamination?
A. No specific instructions.
Q. Okay. What is cross-contamination?
A. Cross-contamination would be when one item would transfer
material to another item and that transfer would not be a
desirable transfer.
Q. And you had been warned prior -- you had been told prior to
the 21st of April that that phenomenon happened; right? Before
the 21st of April, you'd been told about cross-contamination,
what it was; correct?
A. I was aware of what cross-contamination was that day, yes.
Q. Now, sir, you testified that item -- the item in 664 is in
11277
Ronald Kelly - Recross
the same or similar condition to when you saw it; correct?
A. Those weren't my exact words.
Q. Well, the question you were asked was is it in the same or
similar condition and you said yes. Do you remember that?
A. I said the item was substantially in the same condition.
Q. Substantially. And you know that in fact, between the time
that you picked it up and today, many, many chemical tests have
been performed on it; correct?
MS. WILKINSON: Objection, your Honor, to his
knowledge.
THE COURT: Well, do you have knowledge of that
testing?
THE WITNESS: I have some limited knowledge.
BY MR. TIGAR:
Q. And you know that -- that with respect to one of the -- at
least one of the chemicals that -- that was thought to be on
there once, that it's not there anymore. Do you know that?
A. Yes, I do.
Q. So it is not correct, sir, that this is in the same or
similar condition as when you found it, is it?
MS. WILKINSON: Objection.
THE COURT: Well, perhaps it ought to be broken down
to differences between appearances and otherwise --
MR. TIGAR: Yes, your Honor.
THE COURT: -- similar condition.
11278
Ronald Kelly - Recross
MR. TIGAR: I was only responding to that one
question.
BY MR. TIGAR:
Q. In terms of physical appearance -- right -- it looks the
same; is that your testimony?
A. Yes.
Q. You're testifying to that. In terms of whatever chemicals
might or might not be on it, you don't know, do you?
A. No, I don't.
MR. TIGAR: Okay. No further questions. Your Honor.
THE COURT: Okay.
MS. WILKINSON: This witness -- we don't need this
witness right now. We'll hold him.
THE COURT: All right. You may step down.
Next, please.
MR. MACKEY: We'll call FBI Agent Steve Burmeister.
THE COURT: All right.
THE COURTROOM DEPUTY: Would you raise your right
hand, please.
(Steven Burmeister 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: Steven G. Burmeister,
B-U-R-M-E-I-S-T-E-R.
11279
THE COURTROOM DEPUTY: Thank you.
DIRECT EXAMINATION
BY MS. WILKINSON:
Q. Good morning, Mr. Burmeister.
A. Good morning.
Q. You are here this time to testify just about the chain of
custody of a certain item of evidence; is that right?
A. Yes.
Q. Do you see Government's Exhibit 664 in front of you?
A. Yes, I do.
Q. Do you recognize that item?
A. Yes, I do.
Q. Did you receive that item on April 21st, 1995?
A. Yes, I did.
Q. Okay. If we could turn to that date. Were you at the
Oklahoma City bombing crime scene on April 21st, 1995?
A. Yes, I was.
Q. And were you working on a chemical Evidence Recovery Team
with other people?
A. Yes.
Q. With whom were you working?
A. The other individuals of the team were Mr. Ron Kelly and
Special Agent Alton Wilson.
Q. At some time, did you receive evidence from Mr. Wilson?
A. Yes.
11280
Steven Burmeister - Direct
Q. On what day?
A. The 21st of April of 1995.
Q. Did you receive Government's Exhibit 664?
A. Yes.
Q. In what condition was it when you received it?
A. The condition was in a sealed plastic bag.
Q. Is that the same sealed plastic bag marked 664A?
A. Yes, it is.
Q. How do you recognize that bag?
A. I recognize it based on my initials on the plastic bag.
Q. Do you recognize some of the other writing on there?
A. The other writing, the -- basically, the numeric numbers
and Mr. Kelly's initials and the date.
Q. Do you see the date of recovery on there?
A. Yes, I do.
Q. What does it say?
A. It's April 21st, 1995.
Q. Was that bag -- or was that Item 664 sealed in Government's
Exhibit 664A when you received it?
A. Yes, it was.
Q. And what did you do with the bag once you received it and
the item?
A. Once I received the item, I transported it to the Evidence
Control Center in Oklahoma City where I entered it into the
Evidence Control Center.
11281
Steven Burmeister - Direct
Q. Okay. Was it sealed when you turned it in?
A. Yes, it was.
Q. Did you receive that item again back in the FBI Laboratory?
A. Yes.
Q. Do you recall what day you received it?
A. Yes, I do.
Q. What day was that?
A. That would be April 28, 1995.
Q. Approximately seven days later?
A. Yes.
Q. And from whom did you receive it at that time?
A. I received it from a Mr. Brett Mills.
Q. In what condition was it when you received it?
A. It was sealed in a plastic bag.
Q. And can you tell the jury today, is Government's Exhibit
664 in the same or substantially the same condition as when you
saw it in (sic) April 21st.
A. Yes, it is.
Q. All right. Is it in the same or substantially the same
condition as when you saw it on April 28th?
A. Yes.
Q. Now, we're not going to have you testify about this right
now, but did you open the bag on April 28?
A. Yes, I did.
Q. Did you perform chemical testing on Government's Exhibit
11282
Steven Burmeister - Direct
664 at that time?
A. Yes.
MS. WILKINSON: We have no further questions, your
Honor.
THE COURT: Mr. Tigar.
CROSS-EXAMINATION
BY MR. TIGAR:
Q. Hello again, Mr. Burmeister.
A. Good morning.
Q. My name is Michael Tigar, and I'm one of the lawyers
appointed to help out Terry Nichols. I think we met -- I don't
know, more than a year ago -- right -- very briefly?
A. I believe so, yes.
Q. Well, I'm only going to ask you about the custody things.
You're going to be giving a lot more testimony about the
chemical tests you did; right?
A. Yes.
Q. You expect to. And I'll ask you about that then. Just
want to know about custody now.
You told -- you were the one directing Agent Kelly --
excuse me -- Mr. Kelly and Agent Wilson as to how to collect
evidence; correct?
A. I was instructing them as to the general location for the
collection of evidence that day.
Q. And did you give them any instruction about how -- what
11283
Steven Burmeister - Cross
they were to recover?
A. We had a -- discussions as to the types of evidence, as far
as the evidence that we would recover would be items that we
could retrieve and take back to the laboratory for chemical
testing. We wanted to capture that in that point in time.
Q. Okay. And who made the decision to use polyethylene bags
as an evidence-collection mechanism?
A. That would have been the evidence bags that we had on hand,
and those would have been the ones that Mr. Kelly and I had
with us at the time.
Q. And did you instruct Mr. Kelly to wear gloves while he was
doing his collecting?
A. That was an understanding, of course, that we would wear
gloves throughout the evidence-collection process, yes.
Q. And were these gloves lined with some sort of powder to
make them easier to get on and off, or were they unlined?
A. I don't know.
Q. You do know the difference; right?
A. Yes, I do.
Q. You've used both kinds in your work; correct?
A. I have, yes.
Q. Okay. Now, you say that you got -- the item was -- was
transported to the Evidence Control Center. Now, help me. Did
somebody give you the item in the field, out there at the
parking lot?
11284
Steven Burmeister - Cross
A. I received several items of -- one of which is this item
here that's before me, Item 664, which I received from Special
Agent Wilson.
Q. All right. And where did you receive it?
A. I received it in the parking lot area that particular day.
Q. All right. And did you then take it to the Evidence
Control Center?
A. Yes.
Q. All right. You did that yourself?
A. Yes.
Q. And when you took it to the Evidence Control Center
yourself, did you sign it in there?
A. Yes.
Q. And sign it in with Mr. Elliott?
A. No.
Q. Who was -- who was the person you signed it in with?
A. It was a June Buckner who was at the Evidence Control
Center at that time.
Q. And do you know where it was between the time you signed it
in there and the time it arrived in Washington, D.C.?
A. I don't know exactly where it was at the Evidence Control
Center.
Q. Okay. Do you know how it was transported to Washington,
D.C.? By air, or by surface?
A. Not directly, no.
11285
Steven Burmeister - Cross
Q. Well, given -- as a scientist, you would be interested in
knowing how things got to your lab; right? So if there's no
objection to it, can you tell us what you understood to be the
transportation method.
A. Based on my reviews of the custody logs, it had been
transported to the FBI Laboratory with a -- an aircraft.
Q. Okay. And -- did you -- and once you signed it in at the
Evidence Control Center, you didn't have anything further to do
with it; correct?
A. That's correct, yes.
Q. And just to clarify, when you say it's the -- the same or
substantially similar, you did a lot of tests on it; right?
A. I did numerous testing once I received it on the 28th, yes.
Q. And just to be clear, the appearance of it is the same as
the appearance of the item you remember, but we're going to
find out later that there are some chemical differences -- is
that fair to say -- between the item as you got it and the way
it is now?
A. Well, I don't know if there's chemical differences. I
don't agree with that. There were chemicals that I removed off
the surface of this that I did some testing on.
Q. In other words -- but there were changes that took place --
I'm not attempting to suggest anything other than to point out
there are some changes that took place in the testing process;
right?
11286
Steven Burmeister - Cross
A. After I initially looked at it, it went to other
individuals for further testing. I was the first person to
receive it for testing.
Q. Yes. Yes, sir. I'm -- but as -- as it sits there today,
there are some other processes that happened to it; correct?
A. Yes. After I looked at it.
MR. TIGAR: No further questions. Thank you, sir.
MS. WILKINSON: Your Honor, just to make the record
clear.
REDIRECT EXAMINATION
BY MS. WILKINSON:
Q. Mr. Burmeister, without telling us your findings as to what
items you found on Government's Exhibit 664, are you able to
tell us whether the chemicals that you found on there could
permeate a plastic bag?
A. They would not permeate a plastic bag. That's correct.
MS. WILKINSON: That's all.
MR. TIGAR: No questions, your Honor.
THE COURT: All right. You may step down now, and
we'll hear from you later.
Next, please.
MR. MACKEY: Your Honor, we would recall Mr. Brett
Mills.
THE COURT: All right. If you'll please resume the
stand under the oath you took with us before.
11287
THE WITNESS: Yes, sir.
(Brett Mills was recalled to the stand.)
DIRECT EXAMINATION
BY MS. WILKINSON:
Q. Mr. Mills, this is your last appearance, isn't it?
A. I hope so.
Q. You've told the jury that you're responsible for logging in
the evidence; right?
A. Yes, ma'am.
Q. And did you receive Government's Exhibit 664 at sometime
during this investigation?
A. Yes, ma'am.
Q. That plastic piece?
A. Yes, ma'am.
Q. Do you recall what day you received it in the laboratory?
A. April 27, 1995.
Q. And do you recall how it was -- was it in that plastic bag,
Government's 644A, when you received it?
A. Yes, ma'am.
Q. Okay. Was there another plastic bag on top of it when you
received it?
A. Yes.
Q. Or it was in another plastic bag, I should say?
A. Yes, ma'am. 664B.
Q. Okay. So it was double-wrapped by the time you got it?
11288
Brett Mills - Direct
A. Yes, ma'am.
Q. Okay. And did you examine it?
A. Yes, ma'am.
Q. Did you open the interior bag, 664A?
A. I didn't open either bag.
Q. Okay. Did you mark 664A, the interior bag?
A. No, ma'am.
Q. Look at 664A, the bag.
A. Right.
Q. Did you put a Q number on there?
A. No, ma'am.
Q. Did someone put a Q number on there?
A. Yes, ma'am.
Q. What's the Q number?
A. Q507.
Q. Okay. You did not put that Q number on there?
A. No, ma'am.
Q. Okay. What did you do with Government's Exhibit 664 when
you received it into the laboratory?
A. When I was checking it in to make my worksheet, 664B, the
outer bag, I wrote my lab number and the Q507 on there.
Q. I'm sorry. So you didn't even take it out of the first
bag. You put the Q number on the outside?
A. Yes, ma'am.
Q. Okay. So you didn't do any of the writing on the interior
11289
Brett Mills - Direct
bag?
A. No, ma'am.
Q. Did someone do that at a later time?
A. Yes, ma'am.
Q. Okay. You marked the -- the exterior, which is 664B --
A. Yes, ma'am.
Q. -- with Q507?
A. Yes, ma'am.
Q. And you put the laboratory number on it?
A. Yes, ma'am.
Q. What did you do with it after that?
A. I put it back into the box, finished checking in my case.
Q. And did you deliver Government's Exhibit 664 and the two
plastic bags to an examiner for testing?
A. Yes, ma'am.
Q. To whom did you deliver it?
A. Agent Burmeister.
Q. And was it sealed at that point when you delivered it to
him?
A. Yes, ma'am.
Q. Had you delivered it to anyone else for testing before you
gave it to Agent Burmeister?
A. No, ma'am.
Q. Did you personally take it to Agent Burmeister?
A. Yes, ma'am.
11290
MS. WILKINSON: We have no further questions.
THE COURT: Mr. Tigar.
CROSS-EXAMINATION
BY MR. TIGAR:
Q. We have to stop meeting like this.
Mr. Mills, when you checked the evidence into the
laboratory, you -- you wrote that number on it using the same
procedure you've described before; correct?
A. Yes, sir.
Q. Using the DW initials?
A. Yes, sir.
Q. And that was because Mr. -- Agent Williams was the
principal examiner; correct?
A. Yes, sir.
Q. And so if we looked at that, we'd see a number and the
initials DW; correct?
A. Yes, sir.
Q. And you say -- you assigned the Q number; correct? Q507?
A. Yes, sir.
Q. That was your next Q number in order; correct?
A. That's correct.
Q. That's your standard procedure; is that right?
A. Yes.
Q. Now, it arrived -- this arrived in your laboratory in a
box; correct?
11291
Brett Mills - Cross
A. Yes, sir.
Q. A box that had been air-freighted?
A. No, sir.
Q. Where had the box been?
A. The box was hand-carried back by another agent.
Q. I see. And carried on an airplane or surface
transportation, do you know?
A. It was an airplane.
Q. Okay. And it was just a regular, old cardboard box; right?
A. Yes, sir.
Q. And hand-carried back from Oklahoma City to Washington,
D.C.; correct?
A. Yes, sir.
Q. And then directly to your offices in the J. Edgar Hoover
Building on Pennsylvania Avenue?
A. Yes, sir.
Q. That's where your laboratory is; right?
A. Yes, sir.
Q. And from the time that you got it to the time that you took
it to Agent Burmeister, how much time elapsed?
A. I took it to Agent Burmeister on the 28th, and I received
it on the 27th.
Q. Where was it overnight?
A. It was in my office.
Q. And that's an office in that space there in the J. Edgar
11292
Brett Mills - Cross
Hoover Building; correct?
A. That's correct.
MR. TIGAR: Nothing further, your Honor.
THE COURT: Anything else?
MS. WILKINSON: Yes, your Honor.
REDIRECT EXAMINATION
BY MS. WILKINSON:
Q. To clear up one thing, Mr. Mills. You've been telling all
along that you put "Dave Williams" on there; is that right?
A. Yes, ma'am.
Q. When you put down DW there, are you indicating that he
himself reviewed it?
A. No, ma'am.
Q. Okay. Have you reviewed other evidence in this case that
Mr. Williams has reviewed?
A. Yes, ma'am.
Q. And has he initialed that evidence?
A. Yes, ma'am. He puts DRW.
MS. WILKINSON: No further questions.
MR. TIGAR: No other questions, your Honor.
THE COURT: All right.
MS. WILKINSON: Oh, I do, your Honor. I -- we've
completed the chain. We'd move in Government's Exhibit 664.
MR. TIGAR: No objection, your Honor.
THE COURT: All right. 664 is received.
11293
MS. WILKINSON: Thank you. He can now -- if defense
will agree --
MR. TIGAR: No objection subject to the matter we
discussed at the bench, your Honor.
THE COURT: All right.
MS. WILKINSON: Your Honor, Mr. Mackey says to be --
just to be sure, we'd like to admit the bag 664A and 664B so
there's no question on the chain of custody.
MR. TIGAR: May I just look, your Honor?
THE COURT: Yes, you may.
MR. TIGAR: Thank you. May I just ask briefly, your
Honor, so that I understand?
THE COURT: Yes.
VOIR DIRE EXAMINATION
BY MR. TIGAR:
Q. The item is 664; correct?
A. Yes, sir.
Q. Okay. The bag -- then we've got a bag here that's 664A;
correct?
A. Correct.
Q. And when you first got this, was 664A inside of 664B?
A. Yes, sir.
Q. And when you logged it in, you did the writing that's on
the outside of 664B; correct?
A. Yes, sir.
11294
MR. TIGAR: All right. Subject to the discussion at
the bench, your Honor, no objection.
THE COURT: All right. We'll receive 664A, 664B,
664 -- 664. All right.
MS. WILKINSON: And I think we can finally dismiss
Mr. Mills.
MR. TIGAR: Yes, your Honor. No -- no problem with
that.
THE COURT: All right.
THE WITNESS: I can leave?
THE COURT: You're not dismissed. You're excused.
THE WITNESS: I'm excused. All right. Take care.
THE COURT: All right. Are you prepared to go forward
with Mr. Burmeister?
MR. MACKEY: We are, your Honor.
THE COURT: Let me just ask: Members of the jury,
we're going to go into an area that is going to be technical in
nature and require careful attention, technical in the sense of
scientific or laboratory type; and I know it's the day after a
holiday, and I -- I'm not suggesting anything by that, but just
wondering whether you're prepared to go forward, all of you, to
listen to some technical testimony.
All right. We'll do so. Bring in Agent Burmeister
again.
If you want to take a recess any time during this,
11295
just let me know and we'll do it. I mean any of you. You
don't have to do a majority vote on it.
If you would please resume the stand under the oath
you just took with us.
(Steven Burmeister was recalled to the stand.)
Ms. Wilkinson.
MS. WILKINSON: Thank you, your Honor.
DIRECT EXAMINATION
BY MS. WILKINSON:
Q. Mr. Burmeister, let's start at the beginning. Tell us what
your title is at the FBI.
A. My current title with the FBI is supervisory special agent,
but I'm serving as the acting unit chief for the Chemistry
Unit.
Q. What does the Chemistry Unit do in the FBI Laboratory?
A. The Chemistry Unit has numerous functions. Our principal
duty is to conduct chemical analysis of evidence that's
submitted to the laboratory. It's a wide variety of materials,
from toxicology samples to drugs to explosive samples.
Q. Have you in your career focused on one particular area?
A. Yes.
Q. In what area have you focused?
A. The areas in the -- the field of the explosives analysis
and explosive-residue analysis.
Q. Okay. Now, we'll get into this a little bit later, but
11296
Steven Burmeister - Direct
you're describing two different types of analyses; am I right?
A. Yes.
Q. Can you tell us what they are and distinguish them for the
jury, please.
A. There would be an area of explosives analysis, and this is
the examination of bulk, solid samples of explosives as well as
the area of explosives residue analysis; and that is once an
explosive goes off, it produces by-products and materials. The
explosive-residue analysis is the examination of those
particular materials themselves.
Q. When you examine an item in your laboratory for residue, is
it visible to the human eye?
A. A residue is typically invisible to the -- to the naked
eye.
Q. And would it be visible under a microscope?
A. Usually, it's not.
Q. And is that different from what you have described to us as
explosives analysis?
A. Yes. Explosives analysis would be the physical material
that I would look at a surface and be able to physically pick
off of a surface an item and take it over for testing.
Q. Could it be a very large item?
A. Yes, it could.
Q. Could it be a small item that you see under a microscope?
A. Yes.
11297
Steven Burmeister - Direct
Q. Did you find items like that on Government's Exhibit 664?
A. Yes.
Q. So when you describe for us your analysis of that item, are
you going to be describing explosives analysis or
explosives-residue analysis?
A. I will be describing explosives analysis, but
explosive-residue analysis is certainly parts that I would have
taken with that particular specimen.
Q. Okay. Now, how long have you been working for the FBI?
A. I started working in March of 1987.
Q. And when you came on, were you -- were you trained as a
special agent?
A. Yes.
Q. And after that, did you serve somewhere in the field?
A. Yes. I was assigned to the field.
Q. At some point, were you assigned to the FBI Laboratory?
A. Yes.
Q. At what point was that?
A. In January of 1992, I was assigned to the FBI Laboratory.
Q. Could you tell the jury a little bit about your educational
background, please. Where did you go to college?
A. I hold a bachelor of science degree in chemistry from
Susquehanna University as well as a master's of science degree
in chemistry and forensic chemistry from the University of
Pittsburgh.
11298
Steven Burmeister - Direct
Q. And have you ever taken any other advanced organic
chemistry courses?
A. Yes, I have.
Q. When did you do that?
A. That was after graduating from Susquehanna University, I
took several advanced organic chemistries -- chemistry courses
at Villanova University.
Q. After you finished your education and your master's, did
you go right into the FBI?
A. No, I did not.
Q. Did you work in the private sector?
A. Well, yes, I did.
Q. Okay. Tell us, in describing that for the jury, how long
you've been working in the field of explosives and explosives
residue.
A. Probably since the early 1980's. That was when I started
working in the area of explosives analysis.
Q. When was the first time that you held a job where you
worked in that area?
A. That would have been with the Allegheny County crime
laboratory for a short period of time in Pittsburgh,
Pennsylvania, and that would have been in the -- just shortly
after 1984.
Q. What did you do after that?
A. I then went to work for a company called Pharmacon,
11299
Steven Burmeister - Direct
Incorporated, in Pittsburgh, Pennsylvania. In this particular
company, I served as the laboratory manager as well as the
supervisor of their forensic division.
Q. What type of laboratory is Pharmacon?
A. Pharmacon is a private forensic laboratory.
Q. And what type of work did you do there specifically?
A. My specific duties, of course, like I said, is the -- as
the laboratory manager, I basically reviewed all of the work
that was coming in for toxicology as well as forensic cases
that were going out, as well as the supervisor of their
forensic division. So forensic samples that came in, these
were samples of accelerant cases, drug analysis, as well as
explosives analysis that were handled by the laboratory.
Q. When you worked for that private laboratory, were you ever
asked to testify regarding examinations?
A. Yes.
Q. Did you testify on -- on behalf of both the prosecution and
the defense?
A. Yes, I did.
Q. And would that alter your results in any way?
A. No.
Q. Now, you worked for Pharmacon for how long?
A. I worked for Pharmacon up until 1987 when I entered into
the FBI Laboratory -- or, I'm sorry. Into the FBI.
Q. If we could --
11300
Steven Burmeister - Direct
A. Excuse me.
Q. If we could, let's go back to your master's field of study.
Could you tell the jury a little bit about your area of
concentration when you worked on your master's degree.
A. The area that I concentrated with the master's degree was
in the area of microcrystal analysis; that is, taking the
crystalline nature of explosives and explosive residues and
analyzing their crystalline formation.
Q. During that time, did you analyze the crystalline structure
of ammonium nitrate?
A. Yes.
Q. And are you familiar with the crystalline structure of
ammonium nitrate from your work at that time?
A. Yes.
Q. Can you tell us in laymen's terms what it means to do that
kind of microcrystal analysis.
A. Well, it's a broad-ranged area. There's numerous ways of
looking at the crystalline formation of particular samples,
explosive samples. One, you can add a chemical to form new
chemicals, new crystalline shapes; and those crystals can be
examined using microscopes and other techniques, or you can
actually recrystallize the actual explosive itself and analyze
its crystalline formation, its structure, its shape and size
and how light penetrates it. And so all of these would be
examined using microscopic techniques.
11301
Steven Burmeister - Direct
Q. Now, during your time working on your master's and your
subsequent experience in the FBI Laboratory and in private
laboratories, have you determined or are you aware that there
are certain unique structures for each crystalline explosive
material?
A. There are unique formation, unique physical shapes of
various crystals, yes.
Q. And does that help you identify certain explosives?
A. It's one thing that you will look at in the identification
phase.
Q. Does ammonium nitrate have a unique crystalline formation
or structure?
A. It has a unique shape and size, yes.
Q. And if you looked at a crystal, could you, through various
forms of testing, identify it as an ammonium nitrate crystal?
A. You could determine that it is consistent with ammonium
nitrate. You -- as an experienced examiner of that particular
crystal, some may say that they could identify it. For myself,
I would just say that it's consistent with. I would require
further testing.
Q. And if you conducted that further testing, could you
actually identify the substance as a crystal of ammonium
nitrate?
A. Yes.
Q. And are you familiar with the crystalline structure and the
11302
Steven Burmeister - Direct
ions and other portions of that ammonium nitrate crystal that
you could use to identify it?
A. Yes, I am.
Q. Now, in addition to being -- to being interested and
educated in explosives and explosives residue, do you have any
experience in arson investigations?
A. Yes, I do.
Q. Have you ever been a firefighter?
A. Yes.
Q. Can you tell the jury a little bit about your expertise in
arson investigations.
A. I have approximately 12 years' experience as a volunteer
firefighter, during which that period of time, I was also
working with the Pennsylvania state police fire marshal's
office and received training from the Pennsylvania state fire
school in the area of arson and accelerant examination; and
I've also subsequently taken varied courses on accelerant
identification and examination in this area.
Q. Do you belong to any associations -- associations that are
connected to those areas of expertise?
A. Yes, I do.
Q. What association do you belong to, or what associations?
A. Would you like all the associations or just in the area
of --
Q. Why don't you give us the ones in the area of arson first.
11303
Steven Burmeister - Direct
A. Okay. The one primary organization is the International
Association of Arson Investigators.
Q. And through that and through your subsequent research, are
you familiar with the types of fires suppressants used by
arson -- used by firefighters?
A. Yes, I am.
Q. And is the -- to your knowledge, is ammonium nitrate used
in -- as a fire suppressant by firefighters?
A. No.
Q. Now, let's turn to your time at the FBI. When you joined
the FBI and were assigned to the laboratory, were you qualified
at that point to be an examiner?
A. No.
Q. What did you have to do?
A. Initially, when I first came on board into the FBI
Laboratory, I was assigned to work a particular area, and I was
assigned a particular individual as my training supervisor, if
you will, and began the studies for the area of explosive
residue and explosives analysis.
Q. During that time, did you take any courses in the use of
certain instruments?
A. Yes. That was part of my training.
Q. What type of courses did you take?
A. I took courses in various techniques of chromatography,
x-ray powder defraction, other instrumental techniques that
11304
Steven Burmeister - Direct
would be used during the course of my employment.
Q. All right. And during that time, at some point, did you
become qualified to be an examiner on explosives and explosives
residue for the FBI Laboratory?
A. Yes.
Q. At what time did you become familiar -- did you become
qualified?
A. It's January of 1993.
Q. And after that, did you work on numerous explosives
examinations?
A. Yes.
Q. Now, have you ever attended any conferences or symposia in
your field of explosives and explosives residue?
A. Yes, I have.
Q. And have you talked to other experts in the field?
A. Yes, I have.
Q. And have you ever discussed with them the properties of
ammonium nitrate?
A. Yes, I have.
Q. Have you participated in the investigation of other bombing
crime scenes?
A. Yes.
Q. Now, let's turn to April 19, 1995. Were you in your
laboratory on that day?
A. Yes, I was.
11305
Steven Burmeister - Direct
Q. And do you recall learning about the bombing in Oklahoma
City?
A. Yes.
Q. Were you asked to go to the crime scene?
A. Yes.
Q. What was your purpose in going to the crime scene that day?
A. The purpose to go to the crime scene was to examine the
entire scene and to collect physical evidence that could be
brought back to the FBI Laboratory for testing to determine
what possible explosive was used.
Q. Now, when you did that, were you in charge of that
collection of the explosive residue and explosives evidence?
A. Yes, I was.
Q. And did anyone direct you as to what to do when you got to
the crime scene?
A. No.
Q. Were you in charge of that team?
A. Yes, I was.
Q. On what day did you arrive?
A. I arrived on April 20th, 1995.
Q. And why did you arrive on April 20th?
A. Because of inclement weather that was in the Oklahoma City
area, we, as a group, had to sit (sic) down our plane in Little
Rock, Arkansas, and wait the storm out.
Q. And do you recall -- were you in a hotel on the night of
11306
Steven Burmeister - Direct
the 19th?
A. Yes, I was.
Q. Did you see pictures of the bombing crime scene?
A. Yes, I remember watching it on the television.
Q. And do you recall what you thought when you heard about the
rain and you saw the pictures of the bombing crime scene?
A. Yes. I remember looking at the pictures, seeing the rain
coming down and thinking that much of it was being washed away.
Q. All right. Well, let's tell the jury a little bit about
that. Why is it -- why were you concerned, looking at the
crime scene and seeing the rain, that some of the evidence
might be washed away?
A. Well, as part of the overall examination, various
explosives and explosive residues are, in fact, water soluble;
and so anytime you come in contact with the water, direct
water, it could potentially be washed off of a particular item.
Q. Is that true for different types of explosives?
A. Well, some explosives will be absorbed into a surface and
held in and captured there, even though you have water washing
over the surface. And so in certain cases like that, you will
retain it and it will still be captured. But some surfaces --
for example, a piece of glass, or a piece of metal -- it could
readily be washed off of that particular item.
Q. Now, to start with, let's talk about the different kinds of
explosives you could look for at a crime scene. Are there
11307
Steven Burmeister - Direct
different categories of explosives that you refer to in your
field?
A. Yes.
Q. Is there such a thing as high explosives?
A. Yes, there are.
Q. Can you tell the jury generally what a high explosive is.
A. Generally, a high explosive is in a material that will
detonate. Once it goes off, it has very high speeds. It will
cause things to go into small fragments and do extensive
damage. But classically, they are in the area of what we call
in chemistry organic chemistry, and they are usually
carbon-based materials. These particular explosives usually
have a high velocity of detonation, which is a -- a term for
how fast the material will function.
Q. Can you give us some examples of what high explosives are.
A. Certain examples of these materials would be t