“I saw on your résumé that you have two undergraduate degrees as well. Is that true?”
“I’ve got two of everything, it seems. Two kids. Two cars. I’ve even got two cats at home, named Wilbur and Orville.”
I glanced over at the prosecution table and saw that Golantz and his second were staring straight forward and had not so much as cracked a smile. I then checked the jury and saw all twenty-four eyes holding on my witness with rapt attention. She had them eating out of her hand and she hadn’t even started yet.
“What are your undergraduate degrees?”
“I got one from Harvard in engineering and one from the Berklee College of Music. I went to both schools at the same time.”
“You have a music degree?” I said with feigned surprise.
“I like to sing.”
More laughter. The hits kept coming. One surprise after another. Shami Arslanian was the perfect witness.
Golantz finally stood and addressed the judge.
“Your Honor, the state would ask that the witness provide testimony regarding forensics and not music or pet names or things not germane to the serious nature of this trial.”
The judge grudgingly asked me to keep my examination on point. Golantz sat down. He had won the point but lost the position. Everybody in the room now viewed him as a spoilsport, stealing what little levity there was in such a serious matter.
I asked a few more questions, which revealed that Dr. Arslanian currently worked as a teacher and researcher at John Jay. I covered her history and limited availability as an expert witness and finally brought her testimony to her study of the gunshot residue found on Walter Elliot’s body and clothing on the day of the murders in Malibu. She testified that she reviewed the procedures and results of the sheriff’s lab and conducted her own evaluations and modeling. She said she also reviewed all videotapes submitted to her by the defense in conjunction with her studies.
“Now, Dr. Arslanian, the state’s forensic witness testified earlier in this trial that the tabs wiped on Mr. Elliot’s hands and sleeves and jacket tested positive for elevated levels of certain elements associated with gunshot residue. Do you agree with that conclusion?”
“Yes, I do,” my witness said.
A low vibration of surprise rolled through the room.
“You are saying that your studies concluded that the defendant had gunshot residue on his hands and clothes?”
“That is correct. Elevated levels of barium, antimony and lead. In combination, these are indications of gunshot residue.”
“What does ‘elevated levels’ mean?”
“It just means that some of these materials you would find on a person’s body whether they had fired or handled a weapon or not. Just from everyday life.”
“So it is elevated levels of all three materials that are required for a positive result in gunshot residue testing, correct?”
“Yes, that and concentration patterns.”
“Can you explain what you mean by ‘concentration patterns’?”
“Sure. When a gun discharges – in this case we think we’re talking about a handgun – there is an explosion in the chamber that gives the bullet its energy and velocity. That explosion sends gases out the barrel with the bullet as well as out any little crack and opening in the gun. The breech – that is, the part at the rear of the gun’s barrel – comes open after a shot has been fired. The escaping gases propel these microscopic elements we’re talking about backward onto the shooter.”
“And that’s what happened in this case, correct?”
“No, not correct. Based on the totality of my investigation I cannot say that.”
I raised my eyebrows in feigned surprise.
“But Doctor, you just said you agreed with the state’s conclusion that there was gunshot residue on the defendant’s hands and sleeves.”
“I do agree with the state’s conclusion that there was GSR on the defendant. But that wasn’t the question you asked.”
I took a moment as if to retrace my question.
“Dr. Arslanian, are you saying that there could be an alternate explanation for the gunshot residue on Mr. Elliot?”
“Yes, I am.”
We were there. We had finally arrived at the crux of the defense’s case. It was time to shoot the magic bullet.
“Did your study of the materials provided to you over the weekend by the defense lead you to an alternate explanation for the gunshot residue on Walter Elliot’s hands and clothing?”
“Yes, they did.”
“And what is that explanation?”
“It is very highly likely, in my opinion, that the residue on Mr. Elliot’s hands and clothes was transferred there.”
“Transferred? Are you suggesting someone intentionally planted GSR on him?”
“No, I am not. I am suggesting that it occurred inadvertently by happenstance or mistake. Gunshot residue is basically microscopic dust. It moves. It can be transferred by contact.”
“What does ‘transferred by contact’ mean?”
“It means the material we are talking about lights on a surface after it is discharged from the firearm. If that surface comes into contact with another, some of the material will transfer. It will rub off, is what’m saying. This is why there are law enforcement protocols for safeguarding against this. The victims and suspects in gun crimes often have their clothes removed for preservation and study. Some agencies put evidence bags over people’s hands to preserve and guard against transference.”
“Can this material be transferred more than once?”
“Yes, it can, with depreciating levels. This is a solid material. It’s not a gas. It doesn’t dissipate like a gas. It is microscopic but solid and it has to be someplace at the end of the day. I have conducted numerous studies of this and found that transference can repeat and repeat.”
“But in the case of repeated transference, wouldn’t the amount of material depreciate with each transfer until negligible?”
“That’s right. Each new surface will hold less than the prior surface. So it’s all a matter of how much you start with. The more you start with, the greater the amount that can be transferred.”
I nodded and took a small break by flipping up pages on my pad as if I were looking for something. I wanted there to be a clear line between the discussion of theory and the specific case at hand.
“Okay, Doctor,” I finally said. “With these theories in mind, can you tell us what happened in the Elliot case?”
“I can tell you and show you,” Dr. Arslanian said. “When Mr. Elliot was handcuffed and placed in the back of the four-alpha patrol car, he was literally placed in a hotbed of gunshot residue. That is where and when the transference took place.”
“How so?”
“His hands, arms and clothing were placed in direct contact with gunshot residue from another case. Transfer to him would have been inevitable.”
Golantz quickly objected, saying I had not laid the groundwork for such an answer. I told the judge I intended to do that right now and asked permission to set the video equipment up in front of the jury again.
Dr. Arslanian had taken the video shot by my first witness, Julio Muniz, and edited it into one demonstration video. I introduced it as a defense exhibit over Golantz’s failed objection. Using it as a visual aid, I carefully walked my witness through the defense’s theory of transference. It was a demonstration that took nearly an hour and was one of the most thorough presentations of alternate theory I had ever been involved in.
We started with Eli Wyms’s arrest and his placement in the backseat of the alpha car. We then cut to Elliot being placed in the same patrol car less than ten hours later. The same car and the same seat. Both men’s hands cuffed behind their backs. She was stunningly authoritative in her conclusion.
“A man who had fired weapons at least ninety-four times was placed in that seat,” she said. “Ninety-four times! He would have literally been reeking of gunshot residue.”