Brian Pardo and Darlie's Defense

[Jeana (DP)]

Yes! Just an ATTORNEY, for Pete's sake! We're not talking about an archangel, or the like.



I was trying to make a point - you don't have to BE an attorney, a pedophile, a killer, a teacher, a duck, to recognize one when you see one. You are right - comparing Mulder to Jackson or Peterson would not serve to support the fact that Mulder was not an effective presence in or out of the courtroom in Darlie's case. Fritzy's Mom did a thorough job of comparing him to other defense attorneys, to no avail. But hey, it's OK if you think Mulder is a superb attorney.

Not just me darlin. Plenty of people, who know what they're talking about by the way, think the same.

 

[Mary456]

See Goody's post #172 about many of Mulder's efforts being thwarted by the court (judge). That's what I'm talking about. Tolle was acerbic to Mulder.

That's not what I asked you, though. I think if you're going to call a judge a "jerk", you should back it up with references from the transcript. Personally, one thing I noted about Judge Tolle was that when he admonished the lawyers, he rarely singled out one. He included both attorneys in his admonishments, even when Mulder was clearly the one crossing the legal line.

So...how about some rulings that prove Judge Tolle was pro-prosecution and a jerk? I'd really like to hear them.

 

[accordn2me]

10 CROSS EXAMINATION
12 BY MR. DOUGLAS MULDER:
13 Q. Ms. Van Winkle, did you do any DNA
14 testing with respect to the pubic hair that was recovered
15 out there at the Routier residence?
16 A. No, I did not.
17 Q. That was sent over to Gene Screen; is
18 that right?
19 A. I don't have any direct knowledge of
20 that, no.
21 Q. Have you reviewed Gene Screen's
22 findings?
23 A. No, I have not.
24 Q. Who would know about that evidence?
25 Whatever went to Gene Screen came through y'all, didn't
1 it?
2 A. Through the laboratory, not through
3 me.
4 Q. Yes, ma'am. But either, as I recall
5 what Ms. Floyd testified to, she said she either got the
6 evidence from Ms. Van Winkle, that would be you?
7 A. That's correct.
8 Q. Or Ms. Floyd, would be your partner, I
9 mean, that was Ms. Floyd or Mr. Linch?
10 A. Normally, he does the trace analysis,
11 the hair-type evidence. I deal with the blood and the
12 body fluid evidence.
13 Q. Okay. So you don't have any idea why
14 pubic hair was not given to you first, I guess, and was
15 sent over to Gene Screen?
16 A. I don't have any direct knowledge of
17 that, no.
18 Q. But that is Mr. Linch's area of
19 expertise, is it not?
20 A. As far as which part of it? As far as
21 microscopically identifying it?
22 Q. Yes, hair analysis.
23 A. That part of the hair analysis, yes.
24 Q. Okay. Now, as I understand your
25 testimony, you are telling this jury that you did your
1 various analysis on the knife, butcher knife. You only
2 had one knife, didn't you?
3 A. That had blood on it, yes.
4 Q. Yes, ma'am. And you are telling this
5 jury that you did your analysis on that knife, on the tip
6 of the knife, several places on the blade of the knife
7 and on the handle of the knife; is that right?
8 A. Yes.
9 Q. Okay. And you are telling the jury
10 that you have no evidence that Devon's blood was ever on
11 that knife. Is that fair to say?
12 A. That's correct.
13 Q. Okay. No question about that, is
14 there?
15 A. From the samples I tested?
16 Q. Yes, ma'am.
17 A. Which were limited and was not all of
18 the blood on the knife.
19 Q. Well --
20 A. There was no evidence of Devon's
21 blood.
22 Q. Okay. Well, you had access to all of
23 these exhibits and were able to take samples from
24 wherever you desired, were you not?
25 A. Are you referring to the knife?
1 Q. No, I'm referring to all of the
2 exhibits.
3 A. Basically, yes. That would be a fair
4 statement.
5 Q. Okay. And, for example, do your
6 records reflect how many dish towels, wash cloths, dish
7 rags, whatever you want to call them, came into your
8 laboratory?
9 A. They do perhaps, but I have not sat
10 down and counted them.
11 Q. Would you do that please?

13 THE COURT: Mr. Mulder, I think Ms.
14 Van Winkle --

16 BY MR. DOUGLAS MULDER:
17 Q. Ms. Van Winkle, how many towels do you
18 find?
19 A. Towels and rags, approximately 21, if
20 I counted correctly.
21 Q. Approximately 21?
22 A. Yes.
23 Q. How many of those were tested by you?
24 A. By myself as far as DNA analysis?
25 Q. Yes.
1 A. Only the ones we spoke of earlier.
2 Q. All right. Now, I believe you said
3 you did some green plaid towels?
4 A. That's correct.
5 Q. Would these be the plaid towels?
6 A. They would be item No. 28.
7 Q. Okay. And, these tests you have are
8 very sensitive, aren't they?
9 A. Yes.
10 Q. Okay. Matter of fact, I think it's
11 been said here in Court that you could actually analyze
12 the --
14 THE COURT: Would you mind standing,
15 please, Mr. Mulder?
16 MR. DOUGLAS MULDER: I don't mind a
17 bit, Judge. I have got to bend over to pick this stuff
18 up, unless you would like to have somebody --
19 THE COURT: All right.
20 MR. DOUGLAS MULDER: What's your
21 pleasure? I want to make you happy.
22 THE COURT: Well, I would rather have
23 you stand, if you would. I mean, there are several
24 people who can pick it up for you.
25 MR. DOUGLAS MULDER: All right. I
1 don't mind. If one of y'all will get this for me, but


2 don't bend down when you get it.
3 THE COURT: The sidebar comments are
4 unnecessary.
5 MR. DOUGLAS MULDER: All right.
6 THE COURT: So please stand.
7 MR. DOUGLAS MULDER: All right.
8 THE COURT: Thank you.
24 BY MR. DOUGLAS MULDER:
25 Q. You will notice that, Ms. Van Winkle,
1 in Defendant's Exhibit No. 48, Defendant's Exhibit No.
2 49, and Defendant's Exhibit No. 47, there are three white
3 towels. Do you see those?
4 A. Yes, sir.
5 Q. Okay. Do you know which one you
6 analyzed?
7 A. No.
8 Q. Okay.
9 A. Right off I do not.
10 Q. Okay. Is there some reason that you
11 didn't analyze -- I know you did 100 analyses, and I
12 realize you have got to draw the line someplace.
13 A. Right.
14 Q. But any reason you didn't analyze the
15 other towels?
16 A. It wasn't specifically requested and
17 it wasn't initially analyzed.
18 Q. Okay. Who makes that determination as
19 to what is to be analyzed and what is not to be analyzed?
20 A. It's usually a joint effort, based on
21 experience and different requests.
22 Q. Between you and the district
23 attorney's office?
24 A. Or the investigators or the medical
25 examiners.
1 Q. So, you, working in conjunction with
2 the police agencies, decide what is to be analyzed and
3 what isn't to be analyzed, basically, is that it?
4 A. Well, that is always part of the
5 decision-making process, yes.
6 Q. Could I see a copy of your notes, the
7 report that you generated?
8 A. The whole file?
9 Q. Yes.
10 A. This is just a copy of that.
11 Q. I don't know what I'm going to do with
12 the whole file.
13 A. This is just a copy of the report that
14 you have.
15 Q. Let me just see the whole file.
16 A. All right.
17 Q. I think we have this. Let me look at
18 it. Yeah, let me make sure we have it.
19 A. Okay.
20 Q. If we get to a point where you can't
21 answer and you need your notes, just let me know and I
22 will get them for you.
23 As I recall, you said the blue blanket
24 was analyzed and on the blue blanket you found Darlie's
25 blood; is that right?
1 A. I would like my notes to refer to,
2 please.
3 Q. All right. Can you do it with this?
4 A. Sure.
5 Q. Okay.
6 A. Yes, that's correct.
7 Q. Okay. And, the white towel that you
8 analyzed, what number was that?
9 A. It was item No. 30.
10 Q. Okay. That would appear to be a very
11 bloody item. This is 30, is it not?
12 A. That's correct.
13 Q. Okay. And, more consistent perhaps
14 with the exhibit -- it's not consistent with what is
15 portrayed in Defendant Exhibit No. 49, is it?
16 A. Well, perhaps if I could -- well, let
17 me look at my file here, and see if it has any clue about
18 where it was from.
19 Q. Okay.
21 THE COURT: We will now take a 10
22 minute break. During the break, please get everything
23 out you need to cross examine this witness.
25 (Whereupon, a short1 Recess was taken,2 After which time,
3 The proceedings were4 Resumed on the record,5 In the presence and
6 Hearing of the defendant7 And the jury, as follows
9 MR. DOUGLAS MULDER: Judge, I don't
10 know who the witnesses are, so I can't prepare in
11 advance.
12 THE COURT: I said this witness.
13 MR. DOUGLAS MULDER: I understand.
14 Well, if I knew who the witnesses were.


15 THE COURT: All right. Well, you know
16 that.
4 BY MR. DOUGLAS MULDER:
5 Q. The rug that you were telling us about
6 that you analyzed, do you know where that was?
7 A. Yes.
8 Q. Okay. Where was that?
9 A. It's reflected in the bottom picture
10 there under the sink.
11 Q. Is that the --
13 THE COURT: When you turn them that
14 way they break, kindly stop that. That's the second one
15 that's happened to.
16 MR. DOUGLAS MULDER: Well, this is the
17 first one for me, Judge.
18 THE COURT: All right.
19 MR. DOUGLAS MULDER: I beg the Court's
20 pardon.
21 THE COURT: Thank you.
22 MR. DOUGLAS MULDER: Would you be so
23 kind as to assist me, Mr. Mosty? We will pick this up
24 together.
25 MR. RICHARD MOSTY: Yes.
1 THE COURT: All right. Be careful.
2 All right.

http://www.justicefordarlie.net/transcripts/volumes/vol-38.php

 

[Jeana (DP)]

Add a link to the transcript, or I'll need to delete your entry due to copyright infringement. Thanks.

 

[cami]

That's your proof that he was more prosecution minded than defense?

I don't know what to think, I thought you might offer the judge ruling on objections. Seems to me that's where favouritism would come in. But I must admit that I am a babe in the woods when it comes to a trial.

 

[accordn2me]

That's your proof that he was more prosecution minded than defense?

I don't know what to think, I thought you might offer the judge ruling on objections. Seems to me that's where favouritism would come in. But I must admit that I am a babe in the woods when it comes to a trial.

I can't PROVE that the judge was "more prosecution minded." I attempted to show an example of Tolle's disdain for Mulder. I randomly selected one of the volumes (38) and cut and pasted a relative fraction of testimony to show, not prove, that Tolle doesn't seem to like or respect Mulder. It seems to me that Tolle gets very riled by Mulder. Seemingly minor and routine things Mulder says and does seem to set him off. When I said, "this judge was a jerk," I should have qualified that by adding, "to Mulder." Like I said before, I blame Mulder for that. Instead of trying to diffuse the judge, Mulder only escalated the confrontations. Bad attorney!:slap:

I haven't read nearly as much of the transcripts as most posters who post on this topic. I have no idea when the judge's contempt for Mulder started. Was it as apparent at the beginning as it was later? I don't know. However, to those that may want to claim that judge Tolle was equally nice to Mulder as he was to other attorneys, here's a challenge: Post some examples that show Tolle's respect of, and professional courtesy to, Mulder.

 

[cami]

I can't PROVE that the judge was "more prosecution minded." I attempted to show an example of Tolle's disdain for Mulder. I randomly selected one of the volumes (38) and cut and pasted a relative fraction of testimony to show, not prove, that Tolle doesn't seem to like or respect Mulder. It seems to me that Tolle gets very riled by Mulder. Seemingly minor and routine things Mulder says and does seem to set him off. When I said, "this judge was a jerk," I should have qualified that by adding, "to Mulder." Like I said before, I blame Mulder for that. Instead of trying to diffuse the judge, Mulder only escalated the confrontations. Bad attorney!:slap:

I haven't read nearly as much of the transcripts as most posters who post on this topic. I have no idea when the judge's contempt for Mulder started. Was it as apparent at the beginning as it was later? I don't know. However, to those that may want to claim that judge Tolle was equally nice to Mulder as he was to other attorneys, here's a challenge: Post some examples that show Tolle's respect of, and professional courtesy to, Mulder.

Okay I get you, not proof, just showing. I did notice though that Mulder had a few sarcastic replies for the judge to add fuel to the fire. It's been so long since I read those transcripts but I didn't notice whether or not he was disdainful to the defense. I probably skipped those parts where there were bench conferences and utterances from the judge to I could get to the meat of the testimony.

Okay the challenge is on. Only I am going to try and find evidence that he was just as disrespectful to Davis while I am at it.

 

[Goody]

10 CROSS EXAMINATION
12 BY MR. DOUGLAS MULDER:
10 Q. Okay. Matter of fact, I think it's
11 been said here in Court that you could actually analyze
12 the --
14 THE COURT: Would you mind standing,
15 please, Mr. Mulder?
16 MR. DOUGLAS MULDER: I don't mind a
17 bit, Judge. I have got to bend over to pick this stuff
18 up, unless you would like to have somebody --
19 THE COURT: All right.
20 MR. DOUGLAS MULDER: What's your
21 pleasure? I want to make you happy.
22 THE COURT: Well, I would rather have
23 you stand, if you would. I mean, there are several
24 people who can pick it up for you.
25 MR. DOUGLAS MULDER: All right. I
1 don't mind. If one of y'all will get this for me, but


2 don't bend down when you get it.
3 THE COURT: The sidebar comments are
4 unnecessary.
5 MR. DOUGLAS MULDER: All right.
6 THE COURT: So please stand.
7 MR. DOUGLAS MULDER: All right.
8 THE COURT: Thank you.
21 THE COURT: We will now take a 10
22 minute break. During the break, please get everything
23 out you need to cross examine this witness.
25 (Whereupon, a short1 Recess was taken,2 After which time,
3 The proceedings were4 Resumed on the record,5 In the presence and
6 Hearing of the defendant7 And the jury, as follows
9 MR. DOUGLAS MULDER: Judge, I don't
10 know who the witnesses are, so I can't prepare in
11 advance.
12 THE COURT: I said this witness.
13 MR. DOUGLAS MULDER: I understand.
14 Well, if I knew who the witnesses were.


15 THE COURT: All right. Well, you know
16 that.
4 BY MR. DOUGLAS MULDER:
5 Q. The rug that you were telling us about
6 that you analyzed, do you know where that was?
7 A. Yes.
8 Q. Okay. Where was that?
9 A. It's reflected in the bottom picture
10 there under the sink.
11 Q. Is that the --
13 THE COURT: When you turn them that
14 way they break, kindly stop that. That's the second one
15 that's happened to.
16 MR. DOUGLAS MULDER: Well, this is the
17 first one for me, Judge.
18 THE COURT: All right.
19 MR. DOUGLAS MULDER: I beg the Court's
20 pardon.
21 THE COURT: Thank you.
22 MR. DOUGLAS MULDER: Would you be so
23 kind as to assist me, Mr. Mosty? We will pick this up
24 together.
25 MR. RICHARD MOSTY: Yes.
1 THE COURT: All right. Be careful.
2 All right.

http://www.justicefordarlie.net/transcripts/volumes/vol-38.php

:clap: He did get on the judge's nerves, didn't he? hahahaha!

 

[Goody]

Not having a go at you Goody. Just pointing out to accordn2me that she still hasn't bothered to look at the evidence.

Gotcha.

 

[Goody]

It's easy to criticize anyone. It's harder to say, I could do better, then actually do better. So let's make it easier, at least if you are going to criticize, tell the person how THEY could do better. Anyone who wants to come into my classroom and tell me how I can do better is welcome. Anyone who can come into my classroom and do better, is more welcome! I think all parents should be required to observe classes at least 4 times per year. Legislators and other policy makers should be required to substitute at least 10 times per year. It's the people, who haven't stepped foot into a school in years, criticizing me and my colleagues, that I have a problem with..

Exactly. So when was the last time you stepped into a court room and defended a murderer?

I don't deny being a bit arrogant, or more than a bit even. But I'm not weighing the pros and cons of a subject. Just like I don't need to be a meterologist to know if it's raining outside, I don't need to take law classes to know Mulder did a horrible job of representing Darlie Routier. .

You need to learn about your subject though before you start declaring yourself an expert on it. There are many things that figure into defense strategy. Appellate issues have a whole lot to do with judge's disgression on many issues. Defense attys know this.

Also, think about what you are criticizing Mulder for. He didn't attack the blood evidence. I wonder why. Can you think of any reason he didn't continue the testing with Laber and Epstein?

You lost me. I know you believe she is guilty and her attorney was a stellar defense attorney. I don't know if she is actually guilty or innocent because her attorney didn't actually do anything to help the girl. Needless to say, we are not on the same page..

I don't know much about Mulder except what I have read. He has a rep for being a great defense atty. He had a successful career as a prosecutor as well. I accept that. You have to remember that Darlie herself did not want Mulder to go after Darin as an alternative suspect, so Mulder was doing what his client wanted. All three of them, Darlie Kee, Darin, and Darlie, asked him not to pursue that type of defense. What else could Mulder do? His hands were tied by Darlie herself.

Who's team? Darin's? .

Mulder's co-counsel were not hired by Darin. They were hired by Mulder and paid out of the $100,000 Darin paid Mulder for her defense. Mulder said that was only half what he usually charged. Darin now claims that a defense for capital murder runs about $800,000. So there was not much of a budget for Mulder to work with. Add that to the fact that if Darlie was guilty further testing could have hurt her more than it helped.

A defendant can not go into a court and argue any defense claim they want. That is what I meant when I said you should take a few law classes. Defense arguments can be limited by the judge, based on laws, appellate issues, constitutional rights, etc. Mulder was using a reasonable doubt argument, hence, the state did not meet its burden. They claimed they were sucker punched by a couple of things, but a lot of that was defense drama and confusion between the two defense atty offices (PD's and Mulder). I've noticed that defense attys often argue anything they can get away with when the evidence starts stacking against them. Mulder tried but Tolle ran a tight ship.

Mulder's weak points and limitations are why Darlie should have stuck with public defenders. They appeared to be on the right track, at least with Laber..

I agree, but they obviously scared Darin into raising the money for a seasoned atty team. However, they still couldn't refute the blood evidence against her. The only thing Laber and Epstein could have done to help her was come up with a believable way that blood on her shirt got there. So Unless the lab could find real solid evidence supporting the existence of an intruder or an alternative explanation for the blood evidence against her, I don't think it mattered that much who represented her.

And you have to remember that Mulder's investigator said he was lead to believe that Bevel was going to testify that the blood drops landed on top of each other. The possibility of that happening more than once would have been pretty slim. I think Bevel denied misleading the investigator, so who knows who made the mistake. But to this day no one, not even her supporters, have been able to come up with any explanation that can actually show the blood travelling like Bevel's tests did. Without that, Bevel's tests are impressive and convincing. I don't think just blaming Darin would have overcome that.

I concur. She was a :loser:.

I don't think she was a loser. Something happened to push across the line though. Maybe she is just a narcisstic sociopath, but I can't really grasp that yet.

 

[Goody]

I can't PROVE that the judge was "more prosecution minded." I attempted to show an example of Tolle's disdain for Mulder.
I haven't read nearly as much of the transcripts as most posters who post on this topic. I have no idea when the judge's contempt for Mulder started. Was it as apparent at the beginning as it was later? I don't know. However, to those that may want to claim that judge Tolle was equally nice to Mulder as he was to other attorneys, here's a challenge: Post some examples that show Tolle's respect of, and professional courtesy to, Mulder.

He did give the defense some things as I recall, but that isn't really the point. You have to weigh each issue separately.

Don Davis, author of Hush, Little Babies, wrote that Judge Tolle delayed his retirement to sit on this trial. They looked around for a court room after the change of venue was granted in Dallas, and settled on Kerrville because they had a court room available for the month of January. I think there was a push on them to finish the trial within that time frame because I have never heard the information refuted.

Also, the court house was repairing its central heat system. That court room did not have heat and it was very cold that month. That is why they took so many breaks, so the jury could warm up in another room.

Things like this come up in cases. They aren't serious enough to warrant a new trial. No trial is probably trouble free. But it gives you a little background info.

 

[Goody]

See Goody's post #172 about many of Mulder's efforts being thwarted by the court (judge). That's what I'm talking about. Tolle was acerbic to Mulder. And if you ask me, that was Mulder's fault too. He was combative to the equivalent of God. Not a good thing for a client facing death row.

!

They were all from Dallas...the prosecutors, Mulder, and the judge. )One defense atty was from Kerrville and I don't know where the other came from.) They probably all knew each other very well and were used to batting back and forth a bit. I wouldn't read too much into it. They were probably out sharing drinks the week after the trial, but there was a lot of pressure during the trial...always is. Makes for ill tempers at times.

 

[cami]

Things like this come up in cases. They aren't serious enough to warrant a new trial. No trial is probably trouble free. But it gives you a little background info.

I think that's one of the problems for supporters Goody. Darlie's trial was fair, not 100% perfect. No trial is.

 

[accordn2me]

Exactly. So when was the last time you stepped into a court room and defended a murderer?

I'm going to be a Prosecutor when I grow up!
Seriously, I'm not declaring myself an expert on anything. I've admitted I could not defend people I thought were guilty. I would never make a good defense attorney. That said, even untrained, uneducated (lawschool) me can see where Mulder fell down on the job. Call me arrogant, naive is actually more appropriate :blushing:, but I feel that had I been in the courtroom - and that MEAN judge would have allowed :razz:- I could have easily given Mulder advice on how to make a better case for Darlie. There are so many times he dropped the ball while questioning witnesses, or didn't make objections when he should have. The pyschic...if he wanted to get her opinion in so badly, why didn't he call her! As well as you know this case, aren't there things you wish he would have brought out just so our questions could be answered? At times, it looked like he was going to, and then POOF! on to something else. I didn't realize the courtroom had no heat! Hell, I can't think when I'm cold either. Maybe that was it.

 

[accordn2me]

Also, think about what you are criticizing Mulder for. He didn't attack the blood evidence.

That's not all he didn't attack! Here's what Linch says he could have attacked:

7. During the course of our August 23, 1996 meeting, Bart Epstein and Terry Laber performed a detailed analysis of the evidence I provided. Bart Epstein conducted a microscopic comparison of all the microscope slides I had prepared. Terry Laber collected samples from some of the larger pieces of evidence, such as Darlie Routier's nightshirt, and took detailed notes regarding the evidence examined. 8. I was not informed of Bart Epstein and Terry Labers' conclusion based on their analysis of the Routier evidence. However, the evidence tested by Bart Epstein and Terry Laber may have enabled them to form conclusions that contradicted, or called into question, the State's theory of the case.

9. I was not contacted by either Bart Epstein or Terry Laber following our August 23, 1996 meeting at SWIFS. I do not know if they conducted further tests on the evidence they collected from me. Bart Epstein and Terry Laber's absence from Darlie Routier's trial team coincided with the appointment of Douglas Mulder and Richard Mosty, who assumed the representation of Darlie Routier from Douglas Parks and Wayne Huff. Following my August 23, 1996 meeting with Bart Epstein and Terry Laber, I was not contacted by any other trace evidence experts for the defense in the Routier case.

10. As a trace evidence analyst, it is my professional opinion that further forensic testing on this evidence would have been appropriate in order to adequately investigate the factual bases of the prosecution's theories. Specifically, it is my professional opinion that if Bart Epstein and Terry Laber were released from their retention as expert witnesses for Darlie Routier's defense, such release constituted a grave error on the part of Darlie Routier's defense counsel.
http://justicefordarlie.net/transcripts/affidavits/affidavit-08.php



#2. by Charles Linch


6. On or about June 8, 1996, I received several pieces of evidence from Detective Jim Patterson. This evidence included a butcher block with eight knives. The butcher block and knives were identical to the butcher block and knives I observed on the kitchen counter at 5801 Eagle Drive, Rowlett, Texas, on June 6, 1996.

7. At the time I received this butcher block and knives at the SWIFS Laboratory, both the butcher block itself and all the knives in it had been dusted for fingerprints. This included a serrated bread knife which I later designated as "Knife #4." This knife was located on the left end of the bottom row of knives in the butcher block.

8. The serration grooves in Knife #4 contained debris consisting of microscopic rubber dust particles and a microscopic fiberglass rod fragment. Based on my forensic microscopic comparison, this material was microscopically consistent with debris obtained from the garage window screen at 5801 Eagle Drive, Rowlett, Texas. However, while I was asked only to perform microscopic tests on these samples, microscopic comparison is not the most discriminating method available to determine the source of this debris. If the rubber dust particles and fiberglass rod fragment can be located and removed from the mounting media for testing, more discriminating chemical testing came be performed on this evidence to determine if the debris found in Knife #4 is in fact consistent with the debris from the window screen material. For example, a Fouier Transform Infrared Microscopy (FTIR) test can be used to create a "chemical fingerprint" of the microscopic rubber particles. As a trace evidence analyst, I would recommend such testing be conducted if possible.
http://justicefordarlie.net/transcripts/affidavits/affidavit-09.php

Here's what Samuel Palenick says Mulder could have attacked:

5. I have reviewed testimony from State of Texas v. Darlie Lynn Routier, Trial Court No. F96-39973-J, related to the fiber that was recovered from Knife Number 4, the bread knife from the knife block found in the kitchen of 5801 Eagle Drive, Rowlett, Texas. I have also reviewed slides that purport to compare this removed fiber with material from the garage screen window, photographs of the garage window screen, and a sample of window screen similar to the torn screen at 5801 Eagle Drive, Rowlett, Texas. I have not been able to view the actual fiber itself. I understand that the fiber is in the State's custody and that defense counsel has been refused access to it.
​

6. Based on my review of the testimony, photographs, slides, and sample window screen, it is my opinion that the origin of the fiber removed from Knife Number 7 can be determined more definitively than has been done previously by a study of the microscopic morphology alone. The optical properties, in particular the refractive index and the elemental composition of the fiber can be established with certainty using polarized light and/or interference microscopy for the latter and x-ray spectroscopy in the scanning electron microscope for the latter. The composition of what appears to be the elastomeric binder can be established in infrafred microspectophotometry. To do this, it will be necessary to isolate the materials from the microscope slide, wash them off, and subject them to the appropriate tests.
​

7. I also have reviewed Charles Linch's testimony in State of Texas v. Darlie Lynn Routier, Trial Court No. F96-39973-J, related to four defects in the right shoulder area of the Victoria Secret's nightshirt that Darlie Lynn Routier was wearing on the night of the events at 3801 Eagle Drive, Rowlett, Texas. I have not been able to examine that actual nightshirt because I understand that it too is in the State's custody and that defense counsel has been refused access to it.
​

8. Based on the information I have about the nightshirt, it is my opinion that it may be possible to determine, by microscopical examination, if the four defects were created by the same instrument as the nightshirt defects that corresponded to Darlie Lynn Routier's injuries.
​

9. To conduct the above-described testing, I would need access to Knife Number 7, the fiber removed from Knife Number 4, a sample of the actual torn garage window screen at 5801 Eagle Drive, Rowlett, Texas, Knife Number 2 (the murder weapon), and the Victoria Secret's nightshirt. None of the testing that I propose to do on Knife Number 4 fiber and the Victoria Secret's nightshirt would destroy the physical sample.
​

10. It is my understanding that Charles Linch testified for the State at trial that the fiber recovered from Knife Number 4 was "consistent" with the material from the garage window screen. It is my opinion that if Knife Number 4 was dusted using a brush and fingerprint powder, and if the knives in the same block were also dusted using a brush and fingerprint powder, then it is possible that the fibers in Knife Number 4 came from the brush used to dust the knives found in the kitchen, rather than from the garage window screen.
http://justicefordarlie.net/transcripts/affidavits/affidavit-10.php

 

[accordn2me]

Also, think about what you are criticizing Mulder for. He didn't attack the blood evidence. I wonder why. Can you think of any reason he didn't continue the testing with Laber and Epstein?

I wonder why, too! Until you explained the money issue, I couldn't think of any reason at all. Now, I'd say greed is the reason. Let's read to see what Laber says:
8. In late October or November 1996, I met with Douglas Mulder and his investigator, Lloyd Harrell, to discuss the testing that Barton Epstein and I had conducted to date. Barton Epstein did not attend that meeting.

9. During the meeting, I provided Mr. Mulder and Mr. Harrel with a general overview of the work done to date by Mr. Epstein and I. It was my impression that neither Mr. Mulder nor Mr. Harrell seemed particularly interested in that work. Both men asked me only a few questions. The meeting lasted about two hours.

10. Following the meeting, I expected that Douglas Mulder or one of his colleagues would follow up with me because the time in the introductory meeting was not sufficient time to explain in necessary depth the forensic significance of the analysis Barton Epstein and I had performed or had recommended be performed. Mr. Mulder did not retain either Barton Epstein or me to perform any of the testing we recommended, and so we discontinued all work on the case. I had no further involvement in the trial of Darlie Lynn Routier after November 1996.
http://justicefordarlie.net/transcripts/affidavits/affidavit-07.php


Mulder didn't even bother to meet with Barton Epstein!


Here's what Laber says Mulder could have attacked:


6. Barton Epstein and I recommended to Mr. Parks and Mr. Huff that certain samples of physical evidence that we reviewed be analyzed to test the State's theory that the crime scene at 5801 Eagle Drive, Rowlett, Texas had been stated. For example:

a. Fiber and Opaque Material Said to Have Been Removed from Bread Knife: We recommended that microscopic and/or elemental comparison tests be conducted on the fiberglass and opaque materials removed from a bread knife to substantiate or dispute the State's theory that the source of these materials was the window screen in the garage of 5801 Eagle Drive, Rowlett, Texas.

b. Other Fibers Said To Have Been Removed from Knife on Counter: We recommended that the apparent wood fragments and blue fibers removed from the knife found on the kitchen counter be microscopically examined to determine their source.

c. Darlie Routier's Nightshirt: Based on defects (i.e. cuts) observed on the left side of the nightshirt, we determined that additional testing was required to identify the source of the defects. In addition, we recommended that genetic testing be conducted on several blood-stained areas of the nightshirt.

d. Hoover Vacuum Cleaner: Based on our visual examination of the blood stains found on the Hoover vacuum cleaner, we determined that genetic testing was required to determine the source of the blood.

e. Carpet: We recommended DNA and possible chemical testing of blood stains and prints left on the carpet from 5801 Eagle Drive, Rowlett, Texas.

f. Darin Routier's Blue Jeans: We recommended that genetic testing be conducted on several blood-stained areas of Darin Routier's blue jeans.

g. Pillow and furniture: We recommended that genetic testing be conducted on several blood-stained areas on the living room furniture, pillow and on the wine rack.


Laber continued:

11. Based on the analysis I performed in this case, it was my professional opinion in November 1996, and is my professional opinion today, that there were numerous pieces of physical evidence we reviewed that were not consistent with a staged crime scene. For example:

a. Review of the blood spatter on and near the vacuum cleaner indicated that the vacuum cleaner had not been pushed around by someone bleeding, but, instead, that most of the bleeding had occurred after the vacuum cleaner had been knocked down.

b. The placement of shards of glass below the location of the wine glasses indicated that the wine glass had broken while still in the rack and was not consistent with a person smashing or throwing the glass onto the floor as part of a staged crime scene.

​

12. In my professional opinion, scientific testing of the physical evidence would have been critical to Darlie Lynn Routier's defense. Independent testing of that physical evidence was crucial to properly evaluate the State's case. There were numerous potential holes in the State's case that required testing to conform or refute the State's presentation of the evidence and to provide evidence that could well have refuted the State's forensics testimony. These and other tests would have been critical to developing the physical evidence to refute the State's use of forensic and physical evidence and establish Darlie Lynn Routier's innocence.

a. Based on my blood-spatter analysis experience, for the theory that direct hits of Darlie Lynn Routier's blood being spattered from her stab would precisely covered each blood spatter of her tow sons Damon and Devon to have been correct would have required an extremely unlikely sequence of events. My preliminary analysis of the shirt Darlie Lynn Routier was wearing indicated only minimal area of blood spatter and the critical areas of spatter were not subjected to genetic testing. Genetic testing should have been conducted on those blood-stained areas of Darlie Lynn Routier's nightshirt. In addition, a microscopic examination should have been performed to determine the source of cuts observed on the left-side of the neck of the nightshirt.

b. Testing of the fiberglass and opaque material said removed from the bread knife should have been conducted to substantiate or dispute the State's theory that the source of these materials was the window screen in the garage, and the window screen was cut as part of the staged crime scene.

c. The apparent wood fragments and blue fibers removed from the knife found on the kitchen counter should have been microscopically examined to determine their source.

d, DNA testing should have been performed on the blood stains found on the Hoover vacuum cleaner to determine the identity of the persons or persons whose blood was on the vacuum cleaner.

e. DNA and possible chemical testing of blood stains and prints left on carpet and flooring should have been pursued to determine the identity of those who bled or left prints.

f. Genetic testing should have been conducted on several blood-stained areas of Darin Routier's blue jeans since they might have indicated that he was involved in the murder.

g. Genetic testing should have been conducted on several blood-stained areas on the furniture, pillow and wine rack to reconstruct the location and movement of individuals at the crime scene.

​

12. It is my professional opinion that further testing and evaluation of the items referenced above in numbered paragraphs 6-11 would help establish if in fact the crime scene was or was not staged. Such testing is necessary to confirm or refute the State's testimonial evidence presented at Darlie Routier's trial and to establish Darlie Lynn Routier's innocence. For example:

a. DNA testing and/or microscopic examination should be conducted on blood stains left on Darlie Routier's nightshirt, the Hoover vacuum cleaner, furniture items, pillow, wine rack, and all flooring and carpeting samples in the State's custody.

b. Chemical testing of the flooring and carpeting samples should also be explored. In addition, all microscopic slides of fibers and other matter removed from 5801 Eagle Drive should be examined to determine their source and/or to rule out possible sources.

c. Testing of the brush and powder used to dust the knives in the home at 5801 Eagle Drive should be performed and may refute the theory that fiberglass was consistent with the material from the garage window screen.

13. In order to conduct such testing, access to the above-referenced items in the State's custody, as well as samples of the garage window screen and all known blood samples would be required. Although certain testing might use up a portion of the existing sample, none would destroy the sample completely. Thus, there would be remaining sample for the State to conduct confirmatory testing should it desire to do so.
http://justicefordarlie.net/transcripts/affidavits/affidavit-07.php

 

[Dani_T]

The defense did attack the bread knife fibre. They did ask if Linch had done any further testing. And Linch replied that he had tried by the evidence was too small to transfer to the medium required. Whether that is not longer an issue in 2005 is a different story. I've already said this two or three times. The defense tried everything they could to discredit the knife fibre. Go read the transcripts about it (it's mind numbing stuff).

 

[accordn2me]

The defense did attack the bread knife fibre. They did ask if Linch had done any further testing. And Linch replied that he had tried by the evidence was too small to transfer to the medium required. Whether that is not longer an issue in 2005 is a different story. I've already said this two or three times. The defense tried everything they could to discredit the knife fibre. Go read the transcripts about it (it's mind numbing stuff).

OH, NO :hand:, the defense DID NOT try everything they could, or anything they could even, to discredit the knife fiber. I took your suggestion and read a bit. You know what? They wouldn't even let Linch help them out! They shut him up when he tried. I wonder why...

http://www.justicefordarlie.net/transcripts/volumes/vol-37.php

14 Q. So if a person puts too much stock in
15 what is microscopically similar, they might draw the
16 wrong conclusion?
17 A. Oh, yeah.

1 Q. And what you told us was that you
2 found a part of a fiberglass rod?
3 A. That's right.

19 Q. Okay. And there is no way you can
20 definitively connect that fiberglass rod to any kind of
21 dust, is there?
22 A. The rod as it occurs on the microscope
23 slide is separate from the dust residue.
24 Q. Okay. And you can't tell that those
25 two have ever been married together or bonded together?
1 A. I don't know that they started out
2 together, no.
3 Q. And there is no way to know that, is
4 there?
5 A. Not as they occur, no.
6 Q. And, fiberglass, those fiberglass rods
7 are found in a multitude of items in and around houses,
8 aren't they?
9 A. Yes, sir, they are.

20 Q. And then you said that you found some
21 residue that you called -- did you call that rubbery
22 residue?
23 A. I call it rubber dust particles.
24 Q. Rubber dust particles. Okay. And,
25 there was not enough of that, you couldn't run a test
1 like the DNA test you ran on the hair, you couldn't run,
2 there isn't a test to run on that dust?
3 A. There is a test that can be done. I
4 was not able to get these things removed and to the
5 proper surface in order to do the test. I attempted but
6 couldn't do it.
7 Q. So there wasn't even enough to run a
8 scientific test to back up, and to determine whether or
9 not you could draw a conclusion that that was a
10 particular type of rubbery material.

11 A. That's correct. The absolute chemical
12 identification of that rubber dust was not accomplished.

4 Q. Okay. And, you did not ever, these
5 rubber dust particles, you never were able to observe the
6 molecular structure of them, were you?
7 A. Not on the recovered particles from
8 the bread knife, no.

3 Q. But you don't have enough to test and
4 you couldn't see the molecular structure, right?
5 A. With polarized light microscopy, if
6 you can see the particle with the comparison microscope,
7 you can see it with the polarized light microscope. And
8 using different filters to determine what it's wave
9 orientation is -- the material from the bread knife was
10 consistent with polyvinyl chloride.
11 Q. But could it also have consisted of a
12 lot of other things too, didn't it?
13 A. That's right. A lot of other polymers
14 with that same polarized light characteristic.

5 Q. And as it -- just one more thing.
6 There is no way at all to run a test like we ran the DNA
7 test on your hair observation -- there is no way to run
8 any kind of testing on either the rod or this dust to
9 verify?
10 A. There is a way. I was, however,
11 unsuccessful in getting this stuff removed.
12 Q. Let me clarify: In this case?
13 A. With these particles?
14 Q. There is no way to verify those
15 observations that you made?
16 A. Well, another microscopist could look
17 at it and verify that, yeah, that is a glass rod.
18 Q. Well, but another hair sample person
19 could have looked at that hair forever and --
20 A. Sure.
21 Q. -- and would have come to the same
22 conclusions you came to? 23 A. Right.
24 Q. What I'm talking about is a way to
25 scientifically verify, like we did on the hair, your


1 observations. And there is no way, am I understanding
2 that right?
3 A. Well --
4 Q. Based upon the minuteness of these
5 particles?
6 A. Well, you can make certain judgments
7 about it, just from a microscopic view, but the --
8 Q. That wasn't the question. I don't
9 mean to get --
10 A. I --
11 Q. I know that you have talked about your
12 observations. And I'm not quarreling with you about
13 that.

14 What I'm talking about now is, after
15 you have made your observations, whether it be about hair
16 or about these, I'm talking about taking it to that next
17 step. To take it into a lab and running a DNA for
18 fiberglass or whatever it might be called.
19 A. The next possible step was not
20 accomplished.
21 Q. And was impossible to accomplish, I
22 guess?
23 A. By me, it was.


Instead of taking Linch's testimony further on the "next possible step" or "a test that can be done" or just letting Linch finish his sentences, the defense kept going back to the fact that Linch himself couldn't have done more testing. In fact, according to Linch, he did exactly what he was asked to do. Which, it is not insignificant to note, was absolutely nothing by the defense. So why do you think the defense, in their vigorous attack, didn't actually take the next possible step and have "a test that can be done" done?

 

[Goody]

. The pyschic...if he wanted to get her opinion in so badly, why didn't he call her! .

Psychics aren't usually allowed to testify. Their visions are not considered evidence. LOL! Beisdes, once you get someone on the stand they are sworn in to tell the truth. Would you really want a psychic on the stand to answer questions about her visions? Rumor has it that the visions were not very favorable to Darlie. But if he can slip in a quick answer from Darlie on the subject, it might leave the impression that the visions were just the opposite.

. As well as you know this case, aren't there things you wish he would have brought out just so our questions could be answered? At times, it looked like he was going to, and then POOF! on to something else.

There are plenty of things I wish both sides had brought out. For one thing, I wanted to hear from Darlie Kee and Dana in the guilt phase of the trial. I would have loved to have seen a good cross on Dana esp.

. I didn't realize the courtroom had no heat! Hell, I can't think when I'm cold either. Maybe that was it.

Well, it had some heat. Icesycles (can't remember how to spell...icesicles,,darn) weren't hanging from their hair or anything. ahhhhahahaha!

 

[Jeana (DP)]

There's appellate argument I've never heard. . . the courtroom was too cold and I couldn't think.

Goody, we DO need a spillchucker on this forum. I think its icicles, but don't hold me to it.