Oct. 15, 2013
LEBANON, Ind. (WDRB) -- Tuesdays are not your favorite days when you're a member of the Louisville media covering the David Camm trial.
As many of you know, there is *usually* no court on Mondays. We typically only have court from Tuesday through Friday. They do that so the good folks of Floyd County, Ind. can give the good folks of Boone County, Ind. their courtroom back. At least one day a week. They are our hosts, after all.
But when the courtroom is 150 miles away from your home -- and the gavel hits the wood at 9 a.m. -- you've got to be an early riser on Tuesdays. (Cue the violin music.) In fact, the early risers consider you an early riser. Tuesdays mean a 4:30 a.m. wakeup call and a three-hour drive into Boone County. That's okay though, because some of us reward ourselves with a great breakfast on Tuesdays: four slices of bacon, scrambled eggs, toast and black coffee. Really, really black coffee.
But it's quickly coming to an end -- and as pressures mount and tension increases, you can already see it weighing on the shoulders of its participants.
On Friday, the defense team rested its case. Today, the prosecution began one of the last phases of the trial: the presentation of "rebuttal witnesses." Rebuttal witnesses do exactly what the name sounds like. They rebut. Rebuttal witnesses are typically brief -- there usually aren't many of them -- and they are generally limited in their scope. They're there to challenge the testimony of witnesses brought by the defense -- in essence, patching up any holes the defense may have blown in the prosecution's case.
The first witness scheduled for the morning was Nora Rudin, a private DNA consultant with a Ph.D. in Biology from Brandeis University. Special Prosecutor Stan Levco planned to call her in order to "rebut" the testimony of Dr. Richard Eikelenboom, of Independent Forensic Services (IFS), one of the defense team's star witnesses. (Last week, Dr. Eikelenboom testified that he found "Touch DNA" evidence of Charles Boney on the sleeves of Kim Camm's sweater, on the waistband of her underwear and in the stomach area of Jill Camm's shirt.)
But before she -- or the jury -- was brought into the courtroom, defense attorney Richard Kammen was ready to put up a fight.
"We met her last night," Kammen said, complaining that the defense team didn't have adequate time to prepare for her testimony.
Specifically, Kammen was frustrated over evidence Rudin was expected to present regarding an e-mail she received about Promega, the manufacturer of a "Powerplex" DNA testing kit. (Last week, Special Prosecutor Stan Levco criticized Eikelenboom's DNA testing lab after it submitted "unexpected" results in a proficiency test. At the time, Eikelenboom said the problem was not with his lab, pointing the finger instead at the new "Powerplex" DNA testing kit manufactured by Promega.) Kammen said the e-mail Rudin was expected to present would indicate that there were no problems with the line of DNA kits, but he claimed that it was "inadmissible on all number of levels" because 1) it was hearsay, and, 2) prosecutors were unable to produce the entire chain of e-mails because they didn't have it.
Kammen argued that -- because the defense couldn't look at the e-mails -- they were limited as to how they could cross examine Rudin.
"In the absence of more information, this is just patently unfair," he said.
He also accused the prosecution of going through "50,000 pages" of documents and "cherry-picking" information.
"Your honor, it's DNA stuff," a frustrated Kammen said. "I'm not really gonna stand here and say I understand all of it."
"The woman can say almost anything and we're really powerless here," he added a moment later.
Levco responded that, last week, the judge allowed Eikelenboom to testify about conversations he had on the phone with a representative of the kit's manufacturer.
"That was hearsay," he proffered.
Judge Jonathan Dartt said he would allow the testimony to begin, but would ask the attorneys to stop Rudin before she talked about the e-mails. At that point, he said he would make a ruling on their admissibility.
"I'm certainly going to allow you to test her opinions," he assured Kammen.
Witness: Norah Rudin
Private DNA Consultant
Ph.D. in Biology from Brandeis University
At 9:32, the jury was ushered into the courtroom and Judge Dartt briefly explained that they would now be hearing from rebuttal witnesses. Moments later, Norah Rudin took the stand.
In addition to her Ph.D., Rudin testified that -- among other things -- she had served on the scientific advisory committee for the Commonwealth of Virginia's Department of Forensic Sciences, and had published books on the topic of forensic science. She said she considers herself a "DNA consultant."
"You've reviewed Mr. Eikelenboom's work on this case, did you not?" Levco asked.
Rudin said that she had, and that her book had even been cited as a reference in some of his work.
After prompting from Levco, Rudin testified that she charges $275 / hr. for her services, and had been contacted to take a look at this case, "just a few weeks ago." She said she reviewed "a number of items," including the protocols followed by IFS (Dr. Eikelenboom's lab), as well as his PowerPoint presentation.
She testified that she does not have her own lab.
"I ran all of the data through a program on my computer," she testified, adding that she did not do a "detailed analysis."
Levco then turned her testimony toward the proficiency tests taken by IFS in 2011 and 2012.
"They're typically fairly easy and they're intended to determine basic competency," she said.
She pointed out that in 2011, there were anomalies were found in the proficiency test, including the lab's identification of "inconsistent alleles" and the failure to find other alleles. She also pointed out an "incorrect result" in IFS' 2012 proficiency test.
Levco then asked her about the implications that can (and can't) be drawn from the discovery of "Touch DNA."
"Can you determine the amount of contact made based on the amount of DNA found?" Levco asked.
"No," she replied.
"Why not?" Levco asked.
Rudin replied that the amount of DNA found could be caused by "any number of variables," including the amount of time that had passed from the point the DNA was deposited to the point its collection was made, as well as the method of collection used.
"There's really not a direct connection," she said.
Levco then asked the witness about the decision of Eikelenboom and his lab to skip a step in process of DNA analysis, called "quantification" -- the point at which the amount of DNA in a sample is measured. Eikelenboom has said that his lab reports all results of a sample.
Levco wanted to know if qualification was a necessary part of the process.
"Is it important to do?" he asked.
"It's critical," Rudin said, adding that "if you're working with too much DNA, you produce artifacts" which can create unreliable results.
She said that "in many, many of the samples," Eikelenboom had too much DNA.
Rudin also criticized Eikelenboom for doing "insufficient" validation studies and producing "faulty" statistics.
Levco then circled back to the concept of causality, presumably targeting Eikelenboom's inference last week that Charles Boney's DNA was deposited on Kim Camm's clothing as a result of a struggle.
"When DNA is deposited on an item, do you know how it got there?" he asked.
"Why it got there?"
"When it got there?"
Rudin said the work done by IFS was particularly unhelpful.
"Given the way this data is produced, I think it is just inherently unreliable," she said.
At that point, the jury was dismissed from the courtroom for a brief recess. Levco was at a point where he wanted to bring up the aforementioned e-mails, and the dispute between he and Kammen would have to be settled.
Battle behind closed doors
With the jury out of the courtroom, Kammen resumed his effort to block portions of Rudin's testimony.
"How do I say this politely?" he began. "She's not exactly a neutral witness."
He said Camm's defense team had the right to answer Rudin's criticisms -- and that was going to cost Floyd County time and money.
"The only way we resolve this is if we bring Mr. Eikelenboom back," he said, adding that his team had been in touch with representatives of IFS who claimed Rudin's criticisms were wrong.
"This stuff may be the holy grail," Kammen said, referring to Eikelenboom's DNA analysis. "But if she says this is junk, I have no way of saying, 'You're wrong.'"
In the end, Judge Dartt told Kammen he would be allowed to mount whatever defense he felt was needed, although he hoped Kammen could arrange a conference call with Eikelenboom in the jury's presence, rather than have him fly back.
The jury was brought back into the courtroom a few moments later.
Witness: Norah Rudin (cont'd)
Private DNA Consultant
Ph.D. in Biology from Brandeis University
With both the witness and the jury in the courtroom, Levco finally introduced the evidence Kammen was so wary of.
As mentioned before, Eikelenboom last week testified that an erroneous answer on IFS's 2012 proficiency test resulted from a problem with the "Powerplex" DNA testing kit manufactured by Promega.
Levco asked Rudin if she was able to determine if there actually was a problem with the DNA kit.
Rudin replied by producing an e-mail she obtained. The e-mail was from a representative of Promega, and -- among other things -- indicated that errors such as the finding on IFS's proficiency test were "typically not a problem with the kit. It's typically a problem with the laboratory."
"Do you know who sent the e-mail?" he asked.
Rudin stammered and started to indicate the person's position.
But Kammen was determined. Did she know the NAME of the person who sent the e-mail?
Rudin replied that, "I don't remember names well."
At one point, Kammen asked her if she had the e-mails and Rudin readily admitted that, yes, she did. When Kammen heard that, he angrily threw his pen down on the defense table and approached Judge Dartt's bench for a private sidebar with both the judge and Levco. During the sidebar, Kammen's animated voice could be heard discussing something with both men.
A few moments later, the sidebar ended and Kammen began his cross examination.
"You are aware, are you not, that testimony by IFS has been admitted in other courts?" he asked.
Rudin said that she had learned this through hearsay.
At one point, Kammen asked Rudin a question and she hesitated.
"I actually don't know how to answer that," she told Kammen.
"Try TRUTHFULLY," Kammen said. There were gasps from some members of the courtroom. Levco objected.
"I do apologize," Kammen said, quickly. The jury was asked to ignore Kammen's remark. A moment later, Kammen added, "Perhaps we got off on the wrong foot."
"As you told us last night," Kammen began a short time later, "you haven't worked in the lab doing cuttings since 1996."
Rudin admitted this was true, telling Kammen that she had "moved on" with her career.
Kammen pointed out that it's Rudin's job to "review the work of others" on behalf of a party "that hires you," rather than conduct actual lab work.
On one occasion, Kammen interrupted Rudin's answer. Levco objected and Kammen told him to "Relax, relax" because he would let her finish.
"It would helpful -- yes -- to be able to finish the answer," Rudin said.
"You wrote a book, did you not?" Kammen asked a short time later.
"I wrote several books," Rudin said.
But the book Kammen was referring to was "Principles and Practice of Criminalistics: The Profession of Forensic Science (Protocols in Forensic Science.)"
He referenced a quote from the book that read as follows: "Nevertheless, a lack of validation on some level does not, a priori, invalidate a particular analysis." Kammen offered the quote as proof that Rudin's low opinion of IFS's validation techniques did not detract from the results of their DNA analysis.
"You read the sentence correctly," Rudin replied. "It's completely out of context...if I were to read the rest of the paragraph, you would understand why."
"I'm sure you'll have that opportunity," Kammen said.
He then addressed Levco's assertion that the amount of DNA deposited on an object lends insight into how the DNA got there. Kammen proposed that if his DNA was on a cup, it was reasonable to assume that he touched the cup.
"That would be one influence," Rudin said. "That would not be the only influence."
Kammen said that if there was a strong DNA profile on the cup, then it was even more likely that he touched the cup.
"No," Rudin replied, proposing that there "is no connection" between the strength of the profile and the likelihood that he touched it.
"So the DNA fairy put my DNA on the cup?" Kammen mocked.
"Another word for DNA fairy is secondary transfer, or tertiary transfer," Rudin said.
Kammen then began questioning her about the case facts. Under repeated questioning, Rudin admitted that she hadn't looked at the details of the case. She wasn't familiar with Charles Boney. She didn't know that he admitted to being in the Camm family garage on the night of the murders. Kammen ticked off fact after fact that Rudin admitted she knew nothing about.
After several questions, Levco objected, arguing that Kammen was becoming repetitive and was using his cross examination of Rudin to "go over final arguments."
"I was about done," Kammen said, tartly.
"Oh, if you're about done, I will withdraw my objection," was Levco's sarcastic reply.
Kammen then asked if Rudin felt that one cause of multiple DNA contacts on an item of clothing could be a fight.
Rudin replied that one cause could be simply a person putting the clothes on and taking them off multiple times.
"Right," Levco said. "Or a fight."
"I don't know," Rudin said.
"If there is a fight with force being applied, there is a chance DNA might be left, right?" Kammen asked.
Rudin replied that this was "one example."
Upon further questioning, Kammen got Rudin to admit that she reviewed Charles Boney's DNA profile, but didn't look closely enough to know that Boney had two rare alleles (i.e. DNA characteristics) and she didn't know that probabilities of someone else sharing those alleles. She also admitted that she never looked closely at the DNA results on Kim Camm's sweater or underwear.
Rudin also testified that she never bothered to review communications between IFS and Promega -- communications Kammen insinuated would have outlined the supposed problems with the Powerplex DNA kit and what was done to resolve them.
"Unfortunately, in the rush, I did not get a chance to ask for it," Rudin said.
At the end of her testimony, the jurors asked Rudin a handful of questions. One of the questions prompted her to summarize her testimony with the claim that, after reviewing IFS's DNA analysis of the clothing in the Camm case, she decided that she had, "never seen such unreliable data."
Witness: Dianna Borden
Resident of Floyd County, Ind.
Floyd Superior Court #1 Court Reporter in 2002
Dianna Borden took the stand for brief testimony some time after lunch. She testified that she was the court reporter for Floyd County Superior Court #1 in 2002, during the first David Camm trial.
One word summarized Borden's testimony: contamination (or lack thereof). From what I can tell, prosecutors called her to the stand to refute the defense's argument that Charles Boney's DNA profile was left on Kim and Jill Camm's clothing because of a struggle. Instead, the prosecutors have argued, it could have happened from contamination, with the pieces of evidence (Kim's clothing, Jill's clothing, Charles Boney's sweatshirt) being in close proximity and "contaminating" each other.
Borden testified that in 2002, at the end of the first Camm trial, all of the pieces of evidence -- including the clothing -- were placed on tables in the courtroom for the jury to review.
"Were you in charge of maintaining custody of evidence?" Boone County Prosecutor Todd Meyer asked.
Borden said she was. She said she and the court staff wore gloves when they handled the evidence, but she couldn't recall if the jurors did.
"Did you wear masks or protective clothing?" Meyer asked. Borden said she did not.
She also testified that the evidence was photographed -- for the record. She said each piece of evidence was photographed separately. She said she would take each piece of evidence out of a bag, place it on a surface, photograph it, place it back in a bag and pull out a new item to repeat the process.
"Did you all wear masks or protective clothing when you took those photographs?" Meyer asked.
"Just gloves," she replied.
Kammen cross-examined her a short time later, presumably hoping to demonstrate that there wasn't evidence of contamination.
He noted that, today, she was testifying in a court proceeding, rather than "reporting" it.
"Kind of a new role for you?" he asked.
"Yes," she said.
"First time?" he asked.
"Yes," she replied.
Kammen then addressed the fact that tables had been set up in the courtroom for 2002 jurors to review the evidence.
"You gave them gloves if they wanted to touch them?" Kammen asked. Borden said she couldn't remember. She said she knew she wore gloves.
"You weren't in the room?" Kammen asked.
"I was not," she said.
"You didn't turn any items inside out, did you?" he asked.
"No," Borden said.
Kammen then produced the individual photographs of the items of evidence, showing them to the jury.
"These items were placed on the floor?" he asked, indicating some of the photographs.
She said that they were.
"No one would expect you to know the composition of the carpet, correct?"
"This was the carpet of the courtroom?" Kammen asked.
"Yes," she said.
Kammen noted that the leg of a chair appeared to be present in one of the photographs, but not in the others. When questioned about it, Borden said the pictures had been taken one at a time, not necessarily in the same spot.
"Ah, so they may have been put in different places on the floor," Kammen said.
"It's possible," Borden replied.
But Meyer wasn't willing to let the jury discount the possibility of evidence contamination.
"Did you switch your gloves off with each individual item you handled?" he asked.
"No sir," she said.
Her testimony ended a few moments later.
Witness: Ben Gerrian
AT&T Store Manager
The final witness of the day was Ben Gerrian, a store manager for AT&T. Gerrian's brief testimony involved showing the jury phone records for Kim Camm's cell phone. He said the phone records indicated that Kim Camm received a phone call at 7:50 p.m. on the night of the murders.
She didn't answer.
He said Kim Camm's voicemail picked up.
On cross examination, Kammen pointed out that the voicemail was never checked by anyone.
NOTE: I spoke with a source close to the investigation weeks ago when news of this phone call surfaced in the trial. The source told me that the call was to Kim Camm's phone from a tenant who was renting property from the Camm family, and that tenant was inquiring about a rent payment. As the call may have come after the time of death, (there is some dispute as to when the time of death was) Kim Camm may have been unable to answer.
End in sight
At the end of the day, Levco told Judge Dartt that he expects to wrap up his rebuttal witnesses tomorrow (Wednesday).
We're told both sides expect to present closing arguments on Monday, Oct. 21. The jury is expected to begin deliberations the next day, on Oct. 22.
There are conflicting reports on whether there will be court on Thursday and Friday of this week, should Levco wrap up his rebuttal witnesses tomorrow.
This blog will be regularly updated up until the moment a verdict is delivered. Keep checking this site regularly -- and bookmark this page.
Travis K. Kircher is a Web Producer with WDRB News. You can reach him at email@example.com.