This was day two of Peretti’s testimony. The State moved once again to introduce State’s Exhibit 33 into evidence. This was a copy of Peretti’s curriculum vitae. Also entered were Exhibits 35-40 as well as the crime scene video narrated by Ridge during his testimony. At the close of yesterday’s testimony, the autopsies of Michael Moore and Steven Branch were completed. Today began Christopher Byers’ autopsy. As was the case yesterday, Peretti read from his own autopsy reports, speaking at the speed of light. He did cover the external and internal examinations as well as noting the injuries. He determined that Byers’ cause of death was homicide and due to multiple injuries. During the external exam, he said the Byers child had a pale body with multiple extensive injuries. Like the others, he had injuries to his ear and linear scratches. Peretti testified that Byers’ body was so pale because he had lost a massive amount of blood. He noted several bruises and contused areas, which meant he was alive during the attack. The most massive area of injury was to his genital region, and he stated that this area had been ‘excised and cut.’ He said that the skin on the shaft of the penis was cut in such a way to suggest that someone had been holding his testicles and then yanked them back to remove. He said other cuts in the area were defensive type wounds. He said the child was moving around while being attacked, trying to turn his body away from the knife. He said the injuries to the ear were consistent with a child being pulled forward for forced fellatio. He said he testified at the trials that the injuries were consistent, not that they were sexually inflicted. When asked if these injuries could have been made by an animal, Peretti said no. They were made with some type of ‘razor sharp implement or tool’ in his opinion.
Entered into evidence was State’s Exhibit 42, also known as the lake knife. He said this was something he did not see at autopsy. The State would come back to this knife.
Peretti was asked again what he meant by ‘contused’ areas, and Peretti said ‘bruising.’ He said there has to be life to have contusions. In other words, the injuries were antemortem. He said that injuries made to the mucosal surface of the mouth were done by the child’s teeth clamping down during a seizure. Peretti claimed that those who sustain massive head injuries will often have seizures. He said he saw no evidence of animal predation.
At this point, Holt asked Peretti if he had his own ‘one-to-one’ photo of the genital injuries of the Byers child with the lake knife. Peretti said he did. Holt put a photo of the genital area up on a projector screen and much time was spent with Holt holding up the lake knife against the excised area. Holt made cutting motions while Peretti agreed that the ‘serrated’ [or saw tooth edge] edge of the knife caused the injuries to the thighs while the cutting edge made the marks that removed the skin and scrotum. Peretti admitted that when he consulted with Sturner about the autopsies, animal predation was raised, but there was no evidence of it. He said that all injuries were made by a cutting instrument.
Holt then moved on to the meeting held with the current defense, the experts, and Peretti. He said he considered the meeting a one-sided gathering. Holt asked what animals were suggested as possibly having caused the injuries, and Peretti said they were dogs, cats, rats, crawfish, turtles, minnows, feral dogs, and coyotes. He was then asked whether or not he thought the injuries were made specifically by turtles. Peretti said he thought it wasn’t possible because he knew how turtles fed and attacked their prey. He said turtles, especially snapping turtles, feed by holding down their food with their webbed feet splayed. He said they would dig their claws into it, and bite off chunks of flesh. He said they basically crush, rip, and then swallow. Holt asked if any of those animals mentioned or even turtles fed under water. Peretti said they did not and he didn’t know of any animal that could. He said if turtles had been responsible, there would have been claw marks, because turtles dig into their prey with their claws. He mentioned that he became ‘annoyed’ at the meeting in 2007 with the defense experts because they had changed from human bite marks to animals. He said he was criticized by these folks for missing a ‘bite mark’ in 1998 and now they were criticizing him for missing animal bite marks.
The State then moved on to a list of questions the defense had wanted Peretti to answer after that meeting. He did not respond then, but when Holt asked each, Peretti responded in kind during court. The letter from defense had asked if Peretti thought any of the injuries were postmortem animal activity. Peretti answered today and said no. He said the only postmortem injuries that he would identify were scratches that may or may not have been done by the bodies being dragged out of the ditch. He was asked whether he felt any abrasions were made by other means outside a sharp implement. Peretti said he did not. He said he was asked about how long he thought the assault took, and Peretti said he did not know that, either. He was asked in the letter if he thought the genital mutilation was anti or postmortem. Today, he answered that it was antimortem. When asked in the letter what was used, Peretti answered today that it was some type of sharp implement. In the letter, Peretti was asked if any of the abrasions on the left side of the face of one child had anything to do with a Satanic ritual, Peretti said not to his knowledge, but he didn’t know about Satanic rituals. He was asked about the grapefruit demonstration, if it made sense. Peretti said he was not the one to conduct the grapefruit ‘thing.’ Holt asked Peretti why he did not provide the information he was asked to regarding case studies. Peretti said he did not provide that information because it was ‘too hard.’ He said the computer system was old, and it was too difficult to pull the ‘thousands of files.’
When asked if he knew of any animal predation cases, he said he did. He said it mostly happens to elderly people who die in the home with their pets. He was asked why he didn’t think a turtle had degloved the penis of Christopher Byers. He said it was because a turtle wouldn’t do that. He said a turtle would have snapped the entire thing off. He said he knew of bodies being ‘eaten’ on in the woods by rats, roaches, and raccoons. He said the boys’ bodies were not shown to have ant activity. He said there were flies, but there was no smell as they had not yet begun to decompose. Peretti said all three victims were alive until they were submerged into the water. When asked if he thought turtles were in that area of Arkansas and Peretti said they most assuredly were, but he said it didn’t mean anything. He said there was a case he knew of where a body had been in the woods unclothed for about two or three days with about a hundred turtles in the area. Despite that, there were no turtle bite marks.
There was also mention of the ‘abrasions’ to the Moore child. A photo was shown of this area. It appeared to be two long ‘scratched’ areas of the same length. Peretti said these injuries were linear parallel abrasions that could not have been made by an animal. No animal that he knew of could do something like that.
On cross, Philipsborn asked Peretti about the case ‘annoying him.’ He said it was an annoying process and the case had cost him a lot of his time. He said he was annoyed that the ‘human bite mark’ of 1998 became an animal bite mark in 2007. He said he had a sound basis for his opinions and has steadfastly stood by them.
He was asked again about his background and the fact that he knew Sturner when he was working out of Rhode Island. He said Sturner came out to Arkansas first and then offered Peretti a job in his office. He said he began to make attempts at passing his board examinations. He said the first time, he was just doing it to do it. The second time, he took the exam seriously, but failed both attempts. Peretti said that during 1993/1994, he was still board eligible at the time, just not certified. When asked how many times one could attempt these exams, Peretti said he thought perhaps five. Philipsborn asked if he was certain about this, and he said those were the rules then.
Philipsborn then asked Peretti how easy it was for a defense attorney to receive a copy of the information in his files. He said it was an easy process. All defense attorneys must write a letter to the prosecutor and ask permission. Once it is granted, they are allowed access. He was then asked if either Paul Ford or Robin Wadley had ever contacted him. He said if so, he would have documented the visit or contact. He was shown Petitioners’ Exhibit 76A and 76B, which were copies of documents that his office might have generated. Peretti said they were. He said that when approved by the prosecutor, the defense attorneys would not have scheduled a visit with Peretti, he said the secretaries would have done that. He said he did not keep documentation of phone calls with defense attorneys. He was asked if he recalled a visit by Ford and Wadley. He said Paul Ford made arrangements to receive a copy of the files.
It was then brought up by Philipsborn during the meeting with the experts in May 2007, he had said he would give them information from a study, but said prior that he hadn’t wanted to do it, because it was too difficult. He was then asked if he had written an article in 2002 titled “Incidents and Autopsy Findings In Children/Drowning Deaths.” [Not 100% positive about title.] In this article, Peretti said he compiled his information from 439 cases from 1997-1999, and this had not been ‘difficult’ to do. Peretti said this was the case then, because they had had help from forensic pathology residents and other students. The information he had said he would provide would have had to have been compiled by him alone.
Peretti was asked about autopsy protocol and if it was usual for him to note who was in the room with him at the time. He said he did not keep those kinds of records, because there could be a number of people in the room doing other autopsies. He was asked that as a part of his protocol, did he mark things down on preprinted anatomic sheets. He said he did. He also said that it was his practice to complete one autopsy on one child, dictate notes, and then go back down to begin another. This information would have been in the files, available to defense upon permission, Peretti testified. He was asked when he finished autopsying the bodies and he said he wasn’t sure, but that he had kept the bodies an additional two or three days so that Sturner could check his reports. He said he had consulted with Dugan to ensure there were no bite marks on the bodies. Philipsborn asked if any notes were made by either Dugan or Sturner. He said they probably had, but they were not made part of the case file. He was asked if he had visited crime scenes before. Peretti said he had a lot in Maryland. When asked if he had gone out to the one in West Memphis, he said he had not, but only because he wasn’t invited to visit the crime scene. He said he had only recently viewed video of the crime scene.
Philipsborn then said Paul Ford had testified on September 24, 2008 that he had spoken specifically to Peretti about comments he had made. According to Ford, Peretti had told that injuries to the cheek of one child had been made by a turtle. Ford said this topic was approached at least once. Peretti said Ford lied, that he blatantly lied. He would have never said this, as it was ridiculous.
It was then Burt to begin his cross examination of Frank Peretti. He asked Peretti if it was reasonable for experts to disagree. Peretti said it was. He asked if Peretti did private consultations and Peretti said he did. When asked if he worked criminal cases for the defense or prosecution, Peretti said he rarely did that. His work focused mostly on civil cases.
Burt asked when he began his autopsies on May 7. He said he arrived at work by 7:00 a.m. and probably started half an hour later. He said it was his practice then to complete one autopsy at a time, leaving Christopher Byers for last as his injuries were more extensive. He said after each autopsy, he would dictate notes, have a rough draft typed up, and then moved on to another autopsy before finally double checking everything. He said he asked Dugan for a consult either May 7 or 8, but he couldn’t remember exactly. He said he had asked Dugan to determine if a mark on the Branch child was a human bite mark. He said he didn’t think it was, but wanted to consult Dugan as a ‘just in case’ type thing, because he knew this case would be complex, with a lot of media attention. He said other than Sturner, he did not consult with anyone else.
Peretti was then asked by Burt about a statement made to the press. This was time stamped and dated: May 7, 1993, at 1:20 p.m. He said what he told the media [whom he stated were camped out at his house] that the boys died from ‘multiple injuries.’ Burt asked if he had completed the autopsies on all three at that time. Peretti said he had completed perhaps one. When he was asked why he made these statements when the autopsies were complete, Peretti said it ‘didn’t take a rocket scientist to see the boys died of multiple injuries.’ He said he was only allowed to make this statement as the press was hounding them for a cause of death. He said the media wanted him to confirm whether or not there had been sexual abuse. He said information had been ‘slipped’ by someone in that office, because before long, everyone knew that one child had been mutilated. He said that somewhere, it had gotten out that he stated there was urine found in the stomachs of two victims. He said he did not say that, but it had gotten out that he had.
He was asked about the animal hair slides at that point, and he said he collected them, but gave them to another part of the lab to process. Peretti said he did not know if the hairs were human or animal. He said he was not responsible for processing this information.
Peretti was asked if he was aware one of his conversations with a defense attorney was taped [phone call]. Peretti said he didn’t. He said he was told by the prosecutors that if he spoke to defense, he was not to be taped. One did, of course, and it was Robin Wadley. During the conversation, Burt said he was asked if the anal dilation was indicative of sexual assault. Peretti told Wadley that it was not consistent with sexual assault. During trial, however, it was brought up that Peretti didn’t exactly say it in that fashion. He stated at trial that just because there is no evidence of it, didn’t meant sodomy hadn’t occurred. Peretti was asked if any ‘defense attorney worth his salt’ had an opportunity to tear into him because of his trial testimony v. his phone conversation, should they have done so. He said the attorney probably should have. These statements by prosecution were meant to be heard by the jury, and also to imply that if injuries were found on one ear, they were likely on the other, and a part of forced fellatio. He said Peretti went right along with what the prosecution wanted, even if he still insisted the anal dilation was not consistent. Peretti vehemently denied he ‘went along’ with the prosecution. Peretti was then directed to a literature from John Rup [sounded like Rupong yesterday…] stating that ear injuries on a child meant the child was sexually abused. In this information Peretti referenced, it said a combination of injuries on the ears and mouth was characteristic of forced fellatio. The article Burt read from stated that it actually referred to ear injuries consistent with physical abuse, not sexual. He asked Peretti to show him where it says these injuries were characteristic of forced fellatio. Peretti could not find this reference and said he had meant that on victims of gang rapes, injuries to their ears and mouths were signs of forced fellatio. Burt said that if research was done on literature written by John Rup, no one would find that information. Peretti said Rup had lectured, was an expert, but had never published anything.
No defense attorneys had caught this discrepancy. He asked that if Peretti was serving as a consultant on a case where he heard something not true, would he approach a defense attorney and tell them something wasn’t right with testimony. Peretti said he would.
Burt then went into the fact that Peretti was asked by the State to review the testimony given by defense experts Spitz, Baden, Souviron, and Ophoven. He said he only read part of Spitz, all of Baden, and some of Souviron. He said he couldn’t read much, because the defense expert’s opinions were ‘ridiculous.’ He was pressed by Burt, became irritated, and then stated angrily that Spitz was ‘incoherent,’ Baden ‘reasonable,’ and Souviron out in ‘left field.’ He said Spitz’ description of a dog shaking the bodies, smacking them against trees did not make sense. He went further and said that he felt their testimony was nothing more than a personal attack against him, to make him look incompetent. He said only Baden said that the autopsies conducted were fine. He said he didn’t think their opinions meant much, because they had not looked at the actual bodies. He said he didn’t feel badly for not supplying the information the experts asked for, because he had asked for photos and other materials from them, and did not receive anything. He went further and said he felt important being attacked by all these experts. He said he was only one person who was right, why did they need so many to prove he was wrong. If they were right, why didn’t they just choose one expert and have done with it. Peretti was steaming angry.
When asked about his lack of certification, Peretti said it did not mean much or prove that he was wrong or not competent to do the job. When Burt asked if the Arkansas Crime Lab was accredited, he said it was not necessary to perform their duties. When Burt pressed again, Peretti said they were applying to become accredited. To this, Burt said he would take this as a negative answer.
On State redirect, Holt asked that even if some injuries had been done by animals, did it still mean the boys had died of multiple injuries. Peretti said this was true. He again asked if contusions and hemorrhaging meant the injuries were antimortem and again, Peretti said this was true. When asked about the comment Ford said he made regarding a turtle bite mark, Peretti again denied he said this, once more calling him a liar. Holt gently asked if it was better to have seen the actual bodies than photos of them to render an opinion, and Peretti said it was best.
On Defense redirect, Philipsborn only asked if Exhibit 81 was information provided by Ford and Wadley, to which Peretti said it was.
On Defense redirect, Burt asked if seeing the bodies was better than rendering opinions based on photos. Peretti said it was. Burt then asked if he had ever viewed photos of an autopsy, rendering an opinion, involving children without ever having seen the actual bodies. Peretti admitted that he did while conducting a study at the Arkansas Children’s Hospital. Dr. Peretti was then excused.
The State next called Dr. William Sturner. He was asked by Holt to give his education, experience, and credentials to perform as a forensic pathologist. Sturner went into some detail, sharing that he worked with Dr. Baden in New York, that the two men were trained together. He said he had a lot of respect for Dr. Baden and his work. He also knows Vincent DiMaio and worked with Dr. Spitz. He was asked if he had been qualified to testify as an expert in every state where he worked. He said he had been. He was asked how he became aware of the case. He said he was asked to inspect a lab in Memphis when his office had called about the victims. Sturner said he immediately went back to Little Rock as either he or Peretti called him back for consult.
At this point, I will not go into specific detail of Sturner’s testimony regarding the autopsies or what he did or helped with. Considering the fact that Dr. Sturner was in the courtroom the entire time Peretti was testifying, he simply agreed with every finding Peretti made with regard to the injuries and the manner they happened [cutting tool, antimortem]. He probably would have done the same thing even if not present in the courtroom.
On Defense cross examination, Philipsborn again mentioned the relationship between Sturner and Baden, and Sturner and Spitz. He said he respected both men and they were well known authorities in their fields. He was asked again about the nature of the injuries and his opinion stayed steadfast with Peretti. There was an issue regarding a case he testified in where a pathology resident had assisted with an autopsy. At the time, he said he used the wrong ‘pronoun’ when testifying. He said he used ‘I’ instead of ‘we.’ He also said there was no evidence that any of the victims had been sexually assaulted.
On Defense cross examination, Burt asked how long Sturner had observed the bodies of the boys. He said it was at least an hour. He said he did not look at each and every injury. He was asked about an article he wrote in 1998 titled “Common Errors In Pediatric Forensic Data.” Sturner said he wrote this article because there was not much literature about this. Burt asked who else had written about it in the past, and he said he wasn’t sure. When Burt mentioned Dr. Ophoven, Sturner said he did remember this information now. He said she was the first expert in her field to do this and was very good at what she did. He was asked if he reviewed the expert testimony in August and he said he only received a couple of them, but only finished Baden’s. He asked Sturner if he felt Peretti was being personally attacked by Spitz, Baden, Souviron, and Ophoven. Sturner said he did not feel this at all. He said their testimony was not a personal affront to Peretti.
On State redirect, Holt asked if he had seen or felt anything was out of place with Peretti’s reports, would he have had trouble letting Peretti know. Sturner said he would not. He said their office was small and they often consulted with each other.
At this point, court was recessed. This is it for Jason and Jessie’s Rule 37. Burnett asked the attorneys for their information ASAP.
--Marie South
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