Member Since: February 13, 2007 Last Signed In: September 27, 2007 Profile Views: 4650 Blog Views: 86100 Brothers' attorneys face contempt hearing Judge: Brothers deserves to die Jury recommends Brothers should receive the death penalty VERDICT IN DEATH PENALTY No Verdict This Week Jury begins deliberations in Brothers penalty phase Defense attorney finishes closing argument Defense continues closing argument Defense attorney begins his closing argument Prosecutor finishes closing argument February 07 March 07 April 07 May 07 June 07 July 07 August 07 September 07 October 07 November 07 December 07 January 08 February 08 March 08 April 08 May 08 June 08 July 08 August 08 September 08 October 08 November 08 December 08 January 09 February 09 March 09 April 09 May 09 June 09 July 09 August 09 September 09 October 09 November 09 
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Both attorneys said they had no further questions for Brothers.
Defense attorney Michael Gardina said he has no further witnesses. The jury is dismissed for the day.
Green said she found out the driver of the vehicle involved with the accident with the little boy. Green said she has the driver of the car. She said she just found him on Saturday. “I am uprooting this man’s life to get him to California.” He is prepared to testify on Friday afternoon. Green said she has many more rebuttal witnesses.
Green said she has 10 to 12 witnesses and certified copies of Kansas City Royals schedule. Green said she cannot fill Wednesday. Green said the only person from Ohio is the driver. Green said she will not bring the mother or the son.
Brothers said he would lock the door when he would leave his apartment on Real Road. He said he would normally keep the sliding glass door closed and locked.
Brothers said he did not go to Lamaze classes with Joanie Harper. Brothers said he remembered Michelle Baptiste asking him if birth defects run in his family, but he said he does not remember her asking him to come down to the doctor. Brothers said he does not remember a knife block. Brothers said he moved into 901 Third Street on March 1 or March 2, 2003. Brothers said he sold his house at the end of February. Brothers said they were going back and forth between the house he owned and the 901 Third Street house. Brothers said Joanie went to the hospital on March 28, 2003. Brothers said Joanie booked his April 2003 trip. Brothers said he was leery about leaving her, but he said Earnestine reassured him everything would be okay. Brothers said he did not get a call from Kelsey Spann on July 8, 2003. He acknowledges having the conversation with the Lennox Hills lady. He did not hear the phone ring when Kelsey Spann called. He said he did not get a message from Gary Little or Carla Tafoya. Brothers said he does not recall receiving messages from anyone. Brothers said he left a message with Joanie late Monday, early Tuesday to call him in North Carolina. He said he left a message on Joanie Harper’s cellular telephone. Brothers said he could not figure out what the problem with the cellular telephone was. Green asks Brothers if there was an incident where Joanie discussed his infidelity with a pastor in front of him. Brothers said he does not remember this.
Brothers said he returned to Ohio on Saturday July 6, 2003. He does not know how many miles he drove.
Brothers said he does not know how many miles the trips add up to. Brothers said he took his cellular telephone with him. He said he left between 8 and 8:30 on Sunday to go to Chicago. He said it was more than five hours. Brothers said he had to stop for gas more than once on his way through Indiana, Missouri and St. Louis. Brothers said he does not have any receipts. Brothers said he stopped and asked an Indiana State Trooper if he was going the right way. He was stopped at a median. He said it was a grayish car. He said the cars had black writing on them. Brothers said he stopped somewhere downtown. Brothers said he stopped for gas on his way to Chicago including once in Columbus and once on the way back. He paid with cash. He has no receipts. He bought food there with cash and has no receipt. Brothers said he did not buy anything for Joanie on the trip. He said the trip took him about 12 hours. He said he does not know how many miles it was. Brothers said he took a cellular phone with him to Elizabeth City, North Carolina. He said he had the wrong charger and it was not taking the adequate charger. He realized he got the wrong charger when he returned to Bakersfield on Friday with Curtis Floyd. Brothers said the nap after church was their old routine, not their new routine. Brothers denied talking to Donna Tibbles and her family. Brothers said he does not talk to strangers. Brothers said he met a postal inspector from Long Beach. Brothers denied that he told Tibbles that he does not have a family. Did he tell Sharon Berniard that he was not going to have any more children because he did not want to have any more children? He denies this. Brothers acknowledged paying Shann Kern $500 a month in child support. “Joanie was totally different from Shann Kern,” Brothers said. Green asked Brothers how much he thought he would be paying to Joanie in child support payment.
Deputy District Attorney Lisa Green continues to question Vincent Brothers.
She asks if Vincent Brothers paid for the burial of his family. Eddie Harper asked for help from Vincent Brothers and Vincent Brothers never offered, Green said. The defense said Eddie Harper took $10,000 from Joanie Harper’s bank account that could have gone to the funeral arrangements. Brothers said he does not recall what happened with the funeral expenses. He said his brother-in-law, Will Jennings, handled that. Green asks Brothers if Eddie Harper asked him to help. Brothers said he does not remember this conversation. Brothers said all the money had had on him he gave to his brother and his attorney filed paperwork to help handle that. Brothers said Will is married to his sister, Yvette. Brothers said Eddie Harper called in March 2004. Did he tell Eddie Harper that he found out his family was killed at his mother’s house. Brothers says he misspoke. Brothers said he got up early on Saturday and was planning to go to Indiana to catch a basketball tournament. Brothers said he did not plan to go with Troy. This is Sat. July 5, 2003. Troy asked to go with him. The trip to Bloomington was three hours. Brothers said he stopped on the way to get breakfast from McDonalds or Burger King. He paid with cash. They stopped to ask for directions and to buy fireworks, but he was told he could not carry them across state lines. The fireworks booth was in Indiana. Brothers said he looked for the tournament, but it was advertised wrong. “You don’t recall if it was at a school,” “No I don’t recall,” He said he used the rental car’s map. Green asks Brothers if he was planning to be gone over night if the tournament would have happened. Brothers said he did not pack for an all-day event. Brothers said the trip to Columbia, Missouri was five more hours. He said he drove. Brothers said Troy slept off and on. Brothers said he never took a photo during the April, July or September trips. Brothers said he already had information about the schools. While he was in Missouri he bumped into a fraternity brother named Steven Bivens.
Vincent Brothers said he called his wife on Melvin Brothers’ phone.
Brothers said he called at Marshall’s feeding time. Brothers said he was there when Marshall was being fed. He said he was not there when Marques and Lyndsey were being fed. Brothers said the feeding times were throughout the day, but he can’t remember exact times other than midnight. Brothers said he was not worried about waking anybody else up at the residence because the phone was right next to the bed. Brothers now said that he called Joanie Harper on Tuesday morning. Brothers now said that he called Joanie Harper on his cellular telephone. He said he also tried to check his messages. Green asked Brothers what he did on the day he arrived in Columbus, Ohio, on the morning of July 3, 2003. Brothers said he drove no other car during this trip. Brothers said he went to the China Buffet. Brothers said that was the only time he used his credit card on that trip. In the April 2003 trip Brothers said he used his credit card for a dinner at Red Lobster. Brothers said he did not physically see Raquelle, he assumed it was Raquelle, in April 2003. Brothers said he went to look for the missing garage door opener. Brothers said he was asked to do this. While he was there, he heard a voice asking him what he was doing on Wednesday April 16, 2003. Brothers said he assumed it was Raquelle because no one else would have been in the house. Brothers said that when the family returned from the China Buffet, they milled around until 5 p.m. when he took the girls for ice cream. He does not remember Tammy and the girls going to see fireworks.
Deputy District Attorney Lisa Green continued to question Vincent Brothers.
Brothers said he does not remember talking to Dande Brothers on Tuesday Sept. 23, 2003. Brothers does not remember asking Dande where Troy was, but he said he remembered looking for Troy. He visited the housing development in Dayton on July 6, 2003, in the afternoon. Brothers said he thought Joanie Harper said she might go out of town around this time. Brothers called Joanie Harper at her house. He bought pizza with cash. He also bought a baseball cap for Marques on Sat. Brothers said he does not remember the hours he was at the mall. He drove from the mall to the housing development. Brothers said he does not recall what time he went to Dayton. He said he picked up some information on the housing development in Dayton, but he does not remember where that info ended up. He returned from Dayton at bout 7 p.m. on Sunday July 6, 2003. Brothers said the crash with the kid’s bike did not damage the Dodge Neon. Brothers said his car was stopped when the bike hit it. Brothers said the boy was riding alongside the bike, the kid tripped and the bike ran into Brothers’ car, he said. Brothers said the kid jumped up and picked up the bike. He said he asked the child if he was alright. Brothers said before the crash, he was lost and was driving up and down the street when he saw Madira Dowell. He thought he looked like his daughter Margaret. Brothers said he put one foot on the ground and the child had gotten up and was ready to run. Brothers said the child was white. Brothers said he asked the boy if he was alright. Brothers said he waved to Madira down before hitting the child. Brothers said Brien Adkins came out and he thought that was the child’s father. How was the weather? Sunny, nice. Brothers said it took five minutes t “Isn’t it true that you were not the driver of the car?” Green said. Brothers denies this. “Isn’t it true that you are lying about being in a Tamba Ledbie?” Green said. Brothers denies this. “Did you kill your family on July 6, 2003,” “I love my family, I would never hurt them,” “I would never hurt my family, never,” Brothers said he gave the mother his insurance information. Brothers said he never asked the boy’s name. She said she believes the mother was white. Was her name Angela? Brothers said he does not remember her name. Did she tell you the little boy’s name was Brandon? No ma’am. Brothers said he went back to the house and watched Sports Center. Brothers said he did not see his family that evening. Brothers said he went in through the side door. Melvin woke him up early that morning to play video games. “You didn’t feel responsible to tell them that you were going there,”
“Isn’t it true you purchased a tricket for your brothers on Sept. 24, 2003,” Brothers said. Brothers said he gave several members of his family his credit card number to make travel arrangements for grand jury testimony.
Green said during a taped conversation a car door can be heard shutting in the background. But Brothers said he has no car he was able to drive at the time. The judge said there is no proof of this. Green said Brothers was recorded on Sept. 23, 2003, talking to Gary Ray. Brothers said he believed he was being recorded at this time. “I was concerned they would take things out of context,” Brothers said of why he told his family he believed he was being taped. Brothers said he does not recall telling Melvin Brothers repeatedly not to talk over the phone because it was tapped. Brothers denies using a second cell phone, pay phones and Maria Crisafulli, an alleged former girlfriend, to avoid phone taps. On one of the wiretaps Maria Crisafulli tells Vincent Brothers that Troy Brothers missed his flight from LaGuardia, which the prosecutor said was on Sept. 24, 2003. Brothers said he was in two branches of the military, the Marines and the Army. He does not remember the years, but he believes it was in the early to mid-1980s. Brothers said he spoke with fraternity brother Steve Birchfield also known as Shake. Brothers said his name was “dogfish.” Brothers said he enlisted in the Marines while at Norfolk State University from 1980 to 1986. Brothers said his military obligation followed him to Bakersfield. Brothers said he trained with an M-16 A-1 riffle. He said he was trained to shoot in bootcamp. He had to reach a certain proficiency. He went through the course once. He was military police in the Army in Bakersfield. He had no additional training in firearms when he went into the Army.
Brothers said he has eight Brothers and two sisters. His brothers include Troy, Dande, LaFayette, Sidney, Anthony, Melvin, Alvin and Nathan.
Some lived in North Carolina, some in New York. He does not know where Troy was living at the time. In April, Brothers drove from Columbus to Kansas City to see a sporting team and check out the area for schools. He wanted to check three schools on the way including Kansas University. He did not mention the trips to Kansas University previously. He said that was Monday or Tuesday. Were the Kansas City Royals on the road at that time. “Isn’t it true you couldn’t have seen the Kansas City Royals...because the Kansas City Royals were on the road,” Brothers said. He did not go to Kansas City to see a Kansas City Royals game, he went to Chicago to see a Kansas City Royals game. Brothers said that when he went to Kansas City and bought a bus ticket, he did not identify himself for a bus ticket. But Green said he would have had to identify himself and that would have gone on a bus ticket. Green said the bus does not require identification. During the September trip to Ohio, Brothers said he gave Troy Brothers a rental car that was rented for him within hours of him renting the car. Green said Troy Brothers did not arrive in Bakersfield on Sept. 22, 2003, the day Brothers said he gave his brother the rental car.
Vincent Brothers took the witness stand again. He will continue to be questioned by Deputy District Attorney Lisa Green.
Expert witness Kenneth Solomon takes the witness stand. Deputy District Attorney Lisa Green is questioning him.
Solomon said he believes a person would be tired and dangerous on the road if he drove for several days without sleep. Green said one study shows that caffeine can help overcome the effects of sleeplessness. Solomon said this is true in the first 10 or 15 or 20 hours, but not in the long term. “Beyond that it has many side effects and many problems,” Solomon said. He said he worked as a police and safety commissioner for the city of Calabasas for five years from 2000 to 2005. That is an appointed position. “He lied about his qualifications,” Green said. Green grilled Solomon about putting Professional Services Reserve for Orange County when he is really a Professional Services Responder. Green said a lieutenant from Orange County told him to make the modification and he told the lieutenant he would change it after this trial. Defense attorney Michael Gardina questions Solomon. Caffeine acts as a diuretic and can cause jitteriness. Solomon said the person who wore an adult diaper for 60 plus hours straight would have rashes and it would smell and may stain the car seats.
Deputy District Attorney Lisa Green wants to question Vincent Brothers about a call Sgt. Jeff Watts gave to him, which he did not return.
Kern County Superior Court Judge Michael Bush wants to know what the relevance would be. The judge said this could have fifth ammendment implications because a defendant has a right not to talk to police. Bush said Green can asked him if he received a phone call. A secretary of Anthony Bryan’s called Sgt. Jeff Watts at the police department last week. Green said she directed Watts to call her. Green said she sounded as though she had been drinking or under the influence. Green said there has been another call. Green said the call has no substance. The judge asks how she knows that is the same person who has been coming in and out of court. Watts said he does not know. Bryan said he needs a few minutes to make some calls. “I obviously have a serious problem here, I did not know this had happened,” Bryan said. “These are serious breaches of confidentiality.” Troy Brothers was supposed to be in court at 9 a.m. on Monday. At 9:20, he was not there. “She was sent home last week,” Bryan said. “I just really need to make a phone call. This person may be in my office.” Green said Troy Brothers was subpoenaed last week and he is not here and Green wants a warrant for his arrest. DA Investigator Charles Brown takes the witness stand. He served Troy Brothers with a subpoena. He gave him the subpoena on Thursday morning at Meadows Field at the airport terminal at 5:40 a.m. along with two BPD detectives and airport police. The action was tape recorded, Brown said. He told Troy Brothers the DA’s office would pay for his hotel and food. He has not since spoken to Troy Brothers. Vincent Brothers said Troy Brothers was with him in the days around the time of the killings. The judge issued a warrant for Troy Brothers’ arrest for $100,000.
“Fatigue will very much affect a driver,” Solomon said.
After 17 to 19 hours of continuous driver it was the equivalent of driving with a blood alcohol level of 0.05. “People perceived slower, people acted slower,” Solomon said. It gets worse after the person continues to drive without sleep. After 36 hours to 60 hours driving without sleep there is “very serious danger,” Solomon said. Reaction time slows leading to serious consequences, Solomon said. The ability to see well at night is impaired, the ability to keep the car on the roadway, the ability to stay awake is difficult, Solomon said. He said it increases the risk of accidents, injuries and death. He said it is not possible to make this drive at an average speed of 90 miles per hour because some areas would slow with traffic such as in Las Vegas. He said if traffic were smooth through cities and assuming the car could perform over the hills, it would be possible to make the trip with an average of 60 miles per hour.
If the coroner’s investigator discovered the bodies at 10:18 a.m. on July 8, 2003, and if the pathologist places the time of death from 24 to 36 hours before that and if a phone call in Ohio at 8 p.m. pacific time on Monday, July 7, 2003, places Brothers in Ohio, how fast would someone have to go if they had 6, 5 minute stops for gas.
If the person took 22 hours to drive from Ohio to Bakersfield with 6, 5 minute stops for gas the person would have to drive an average speed of 107 miles per hour, the expert said.
A defense expert testified that it would take from 27 to 40 hours for a person to travel from Ohio to Bakersfield meaning 56 to 80 hours for the trip back. That includes about 6 stops for gas, food and bathroom breaks.
Vincent Brothers was last seen in Ohio by his family in the afternoon of Friday July 4, 2003 and his family saw him again on Monday July 7, 2003 at about 10 p.m., according to testimony from his relatives. Brothers testified that he traveled with his brother throughout the mid-west during this time. But the prosecution believes he drove back to California, killed his family and drove back to Ohio. The prosecution believes this trip was cover for the murders. The defense expert believes that if Brothers drove an average of 60 miles an hour, it would take him about 80 hours round trip.
Defense attorney Michael Gardina calls to the witness stand Dr. Kenneth Solomon. He earned a PhD in Engineering and later studied reconstruction.
His runs a company of 24 employees. He has studied how fatigue affects driving. Solomon was asked if it would be possible for Brothers to drive to Bakersfield to commit the murders and return to Ohio. He relied upon the reports in this case. He considered the amount of time it would take to drive, get gas and get snacks. He had scenarios where the person stopped for 5 or 15 minutes. Solomon has produced a computer animation of the trip. He consider a route from I 44 and I 40. The route started from Melvin Brothers’ house. The first stop would be St. Elmo, based on the amount of gas the car would require. He selected the fastest potential routes from Columbus to Ohio. He averaged 25 miles per gallon. A third stop is Oklahoma and a fourth stop in New Mexico. The fifth stop is in Arizona. So far he has traveledover 1,000 with 360 miles per stop. The sixth stop is Needles, California. So far 1,989 miles with over 300 miles since the last stop. The person goes on 58 to Bakersfield. That is 2,260.9 when he allegedly arrived at the Airport Bus station where the prosecution believes Brothers changed cars. He said the car switch takes five minutes and the final route is to the Harper house. That is 39.5 hours at 60 miles per hour. 1.5 miles for gas stops. 37.7 miles on the highway. Car change at the bus stations is .3 hours for a total of 39.5 hours. Including stops for gas, the trip one way would calculate: 60 39.5 70 34.1 80 30.1 90 26.9
Deputy District Attorney Lisa Green questioned defense expert Matthew Donohoe. She asks if cruise control is a standard feature on the Dodge Neon. Donohoe said the higher model does not have cruise control as a standard option. He would assume the lower model does not.
Green wanted Donohoe to point out where he wrote in his report that he contacted the manufacturer of the vehicle. Donohoe said he deals with a lot of insurance adjusters and attorneys. Donohoe said he was hired to see if it would be possible to drive the Dodge Neon between Bakersfield and Ohio. Donohoe said he did not inspect the vehicle involved. “I don’t think it would have made a big difference in this case,” Donohoe said. “You assume it wouldn’t,” Green said. “I would have preferred to have the same make and model that was not available,” Donohoe said. “It would have also been an option to say you would not be able to do the work,” Green said. Donohoe said wear and tear would affect the performance, but he said 37,000 miles would not make a big difference. Donohoe said he does not know how many people drove the car, how they drove it or how well it was serviced. Donohoe said he charges $200 for his work in the office $250 outside the office. For court testimony, he charges $400 an hour. He does not know the travel costs. He does not know how much the company has charged. He has not added up the number of hours he has worked on the case. Donohoe said he probably worked from 80 to 120 hours on the case.
The jurors are present.
Defense attorney Michael Gardina calls to the witness stand Matthew Donohoe. He is a senior forensic scientist at the Institute of Risk and Safety Analysis. He provides accident reconstruction for trials. He studies biomechanics, which is the study of the body and how it interacts with its environment. He has taken classes in crash investigation. He has also studied the performance of automobiles. He has qualified in 12 to 15 trials. Donohoe was asked to determine the top speed of a 2003 Dodge Neon, the same type of car Vincent Brothers rented during a July 2003 trip to Ohio. The prosecution believes Brothers drove from Ohio to Bakersfield to kill his family. He recorded such information as the length and weight of the car of 2003 and other years. Donohoe said he was unable to find a 2003, so he tested a 2004. Donohoe said the cars were the same. He tested it on Willow Springs Raceway in Rosamond to get it to a top speed. “We were only able to get it up to 100 miles per hour.” Donohoe said he drove the car from Woodland Hills to Glendale and to Rosamond. “I found that at highway speed of about 65 miles per hour the car responded fine...Once I got over 70, 75 the car became very unstable...I was very uncomfortable at those speeds,” Donohoe said. “I felt that I was going to lose control at any time.” Donohoe said it was difficult to get the car up to 80 miles an hour. He said it took a long time to get to that speed. Donohoe said the steering became difficult. “Over those three miles I was tense the whole time,” Donohoe said.
Deputy District Attorney Lisa Green wants to discuss the statements of the expert witnesses who will testify about the speed a driver would have to drive to get from Ohio to California before these experts testify in front of the jury.
Green believes the experts would distort the truth. Defense attorney Michael Gardina said these experts will calculate speeds a person would have to travel if the person made the trips based on the testimony of other witnesses. The experts will also testify about the probability of getting a ticket driving these areas at these speeds. The experts will also testify about a test drive of a Dodge Neon, which is the same car Brothers rented in Ohio. The expert will also discuss issues such as driver fatigue. Green said she wants the judge to determine if these experts are qualified to testify. Green said she has gotten late statements from the experts including some yesterday and some this morning. Green said this expert knows reconstructions in crashes and shootings but not all the topics Gardina will question. The judge said he is not sure how an expert could testify about “maximum enforcement weekends” and the effects of no sleep. The judge said he does not want this witness to comment on other witnesses. Gardina still wants the expert to discuss increased patrol. The judge said evidence that the fact that 90 percent of a police force is on the streets is meaningless unless the witness can testify how many police cars that means over how many miles of roads. Gardina said he wishes Green would have brought this up before the trial started. Kern County Superior Court Judge Michael Bush said he will allow the attorneys to have a hearing to see if they are qualified to testify about the “human factors,” or how a human would be affected driving these lengths at these speeds. The jury is out of the room. Defense attorney Michael Gardina calls to the witness stand Dr. Kenneth Solomon. He is a forensic scientist. Solomon said “human factors” is how a person perceives his environment, such as how long it takes to brake. He has trained in engineering and psychology. He factors in witness statements, a person’s driving ability, and memory. Solomon wrote two books on automotive crashes and safety. He said fatigue influences how a person drives. He said he has studied that people drive slower if they see police cars. Solomon has studied driver fatigue. Deputy District Attorney Lisa Green questioned Solomon. He said he is paid $200 for consultation, $250 for off-site work and $500 an hour to testify. Solomon said someone from his organization called these policing agencies and relied on other documents to determine how maximum enforcement works. Green said she has asked for witness notes, but this witness said he has notes Green has not seen. Green wants to review this material. The judge asks the witness if he has notes. Solomon said he has no notes. He said all of the elements he depended on were noted in his report. The judge sees hand written notes in front of the witness and the witness said the used these to add up the miles that would have been driven. The judge said the witness has sufficient expertise to discuss fatigue, but he is not satisfied he can factor in law enforcement because he has not given enough details about this. Green said there are no details on speed limits. The judge said the defense can depend on common sense to argue that if a person drove say 90 miles per hour if they would get a ticket.
When Brothers applied to rent the apartment on Real Road in April 2003, Brothers wrote that his previous residence was on Real Road. Brothers said that was not a lie. Brothers said he wrote the wrong address.
Brothers gave a personal reference as Lupe Hernandez with the address of Fremont. He admits he was having a sexual relationship with Hernandez. Brothers did not list any other people who would be living inthe residence. He filled that out in March 22, 2003 and signed it. Brothers said no name or identification was required for him to give a name for the bus ticket. Brothers said he bought the ticket and left on April 12 and flew home on April 20. He spent the first day with Melvin. They went to Ohio State to their aquatic center and hung out with the girls. Green said it is not true that Melvin with with him to Ohio State. On the 13th they watched television and talked. Brothers said he does not remember when he went to the Red Lobster with his brother. Brothers said he left for Bakersfield on the evening that he was going to go to Kansas City baseball game on either Monday or Tuesday. He does not remember how long it took him to drive to Kansas City. Brothers said it took him 10 hours or more and he had a map from the glove box and by asking for directions frequently. Brothers said he told Melvin he was going to Kansas City. He said it was 600 or 700 miles. Brothers said he left from Kansas on Tuesday evening or Monday evening and went to Bakersfield. “Are you saying it was the fastest way to go home, “Isn’t it true that you went hom because you were planning on killing your family,” “Absolutely not,” He said he told his wife and brother Melvin that be returned to Bakersfield. Brothers said he saw Joanie. “Isn’t it true that the locked were changed while you were in Columbus and you didn’t know that,” Green said. “Actually I did know that,” Brothers said. “Why didn’t you fly home,” “I did not fly home because I was panicked and that was the closest thing that I would get to,” Brothers said. He said he spent about 40 hours on the bus. Brothers said he got to Bakersfield Wednesday morning and stayed until that evening. Brothers said he did not call Melvin to say he was going to Bakersfield. He said he left the cellphone on the bus. Brothers said he took the bus back to Kansas. That would put you back in Columbus on Saturday. Brothers said he does not know when he returned. “Why don’t you remember, because it never happened,” Green asked. Brothers said he does not remember when he went to the ATM in Bakersfield. Green showed Brothers a photo of him at the ATM. Green said it was 8 p.m. on Wednesday April 16, 2003. Brothers said that does not help him refresh his memory. Brothers said he did not spend the night. Brothers said he thinks he returned to Columbus on Friday April 18, 2003. He thinks he could have been back in Kansas early Friday morning. Brothers said it could have been less than 40 hours because it was an Express Bus. Green asks Brothers if he has any proof he was in Kansas City. Brothers agreed that he spent the majority of the time getting back to Bakersfield. Vincent said he gave Melvin his credit card to use in April. Brothers said he does not know what he used it for. Brothers told Melvin he did not have to pay him back for the $400 he borrowed. Brothers said he does not remember talking with Kelsey Spann about the trip. Spann testified he said he was going back to Ohio to get money back he left to his brother. Brothers said he did not know that Kelsey and Michelle had keys to the P Street door. He admits he told The Bakersfield Californian in a letter that Earnestine Harper took the key from Kelsey Spann. “That is what I witnessed,” Brothers said. “No ma’am you’re twisting my words,” Brothers said. “I was telling you that you didn’t give me a time frame,” Brothers said. “After she took the key away, I didn’t know she had a key, that’s what I’m saying,” Brothers said.
The judge admonished the audience not to talk to the jurors or face a fine and jail time. But he did not specifically kick anyone out.
Defense attorney Michael Gardina said he would like the judge to declare a mistrial because someone talked to at least one of the jurors. Either one or more jurors said someone approached him and asked the jurors name, but the juror did not respond, the bailiff said.
Gardina said he wanted Kern County Superior Court Judge Michael Bush to enquire further about htis and asked for a mistrial. The judge told the bailiff to go find out what happened. When the bailiff returned and gave the judge a note, the judge cleared the audience and said he would speak to the jurors by themselves.
Gardina said there was a juror who was being talked to by people in the gallery. Gardina said there was also a victims’ rally outside which he believes was staged for this trial.
Gardina asks for a mistrial because someone approached the jurors and asked them their names and asked them if they were jurors on this case. The juror told the bailiff he or she did not respond.
“Is the truth that Marques did not want to go or is the truth that your whole family wanted to go at alater time,”
Brothers said both are the truth. Brothers said he does not know what kind of ambulance took Joanie away from the school. Brothers does not recall asking someone where Joanie’s cell phone and keys were when the ambulance pulled away. “Isn’t it true that you were more concerned with your wife’s cell phone and keys than you were with her,” Green asked. The judge said Brothers does not have to answer. Brothers said Joanie booked a flight to Columbus for him. “She does it for me all the time,” Brothers said. He does not remember when the flight was reserved. “Joanie is not pretty good with that stuff,” Brothers said. “Did it occur to you that the health of your wife and your unborn child is more important than seeing the brother you hadn’t seen in 10 years,” Green asked. The judge said that was argumentative. Earnestine encouraged him to go. “What was your priority,” “My priority is my family.” “Did you stay in Bakersfield with your family.” “No.” Brothers said that when he arrived at Columbus he rented a Neon from Dollar using his credit card. Did it have one mile on it? Green asked. “Let the record reflect I was right.” Green said. Brothers said he last saw his brother at their father’s funeral in 1993. Brothers said he drove to Melvin’s without directions. He said he stopped frequently as gas stations and asked for directions. Brothers said he does not use Mapquest. Brothers said he does not remember calling his wife when he arrived in Ohio in July. “Are you saying as you sit here today that you did not call your pregnant wife who was house bound,” Brothers said he remembers calling, but not when. “I would like the witness to be directed for the sixth time to answer the question,” Green said. “Why are you smiling,” Green said. “I’m not trying to be disrespectul,” Brothers said. “I’m going to let her start arguing with you if you don’t start answering her questions,” Bush said. “Would you have called her every day in July because you were concerned about her,” “Yes.” Brothers said he stayed in Ohio from Saturday to Saturday. Brothers said he returned the car the day his flight left. Green said he returned it the day before. Brothers said he made a cash withdrawl before going in April. Brothers said he rented the apartment but did not move in there when he rented the apartment. Brothers admitted bringing personal items to his apartment. He said he stayed at P street every night. “I rented the apartment for the fact that I did not like the clients that were coming into the house,” Brothers said. “I rented the apartment for us,” Brothers said. Brothers said he doesn’t know what the form said but he rented the apartment for “us.”
Brothers denied that he drove to Ohio to give Melvin the check after the deaths. Brothers said he took a bus. He said he has no receipts for this trip. Brothers said he had a friend named Gary Ray. That Ray rented a car and allowed him to use it. Brothers denied driving that car to Columbus. He said it took him three days to take the bus. Brothers said he and his brother Troy drove the rental car back.
Brothers said Troy drove the rental car to Columbus. “You don’t have to look at your attorney, answer the question,” Green said leaning over the podium. The judge told Green not to argue with the witness. Brothers said he did not see Troy in Bakesfield last week. Brothers said it has been three years since he has spoken to Troy. Brothers said Troy never visited him in jail. Brothers said he first saw Troy on Sept. 18. 2003. Brothers said he drove the rental car to the apartment complex and Troy took it because he had “business” to do. Brothers had no vehicles at that time because law enforcement had them. Brothers said he didn’t need a car because he was riding a bicycle. Ray offered to rent a car for him. Brothers said he did not look at those rental records. He said he drove the rental for about an hour. Brothers denied he would mail him the $2,500 check. “I needed some rest, I was under a lot of stress,” Brothers said Melvin Brothers knew he was coming. Green believes Melvin Brothers did not know Melvin Brothers knew Vincent was coming. Brothers said he left Bakersfield on a Wednesday. He does not know the date. He does not know where it went. “Oh, come on,” Green said. He does not remember where he bought the ticket from. He said he does not recall. Green asked if there was anyone on the bus who could verify that. He took a taxi to Melvin’s house. He paid for both with cash. He said it was round $300. Brothers said he stayed in Columbus an hour or so to drop off the check. He said he arrived on Friday evening. Brothers says it was Sept. 24 when he left and he arrived on Sept. 26. He does not remember what time he left Columbus. He guesses around 6 or 7. He said he stopped to get gas. He said he paid with gas. He said he also pulled over to the side to rest. “Why wouldn’t you use your credit card,” Green said. “I figured cash would be easier.” He returned late Sunday or early Monday. He said it was late Sunday or early Monday. Troy accompanied him on the trip. They made the drive in how many hours? 48 or 50, somewhere in there. He said he did not drive the speed limit and he did not know which route he took because Troy navigated. Brothers said he did not know if he took I-40 or I-70. He said he had no written directions. He said he was pulled over by the police twice. In Oklahoma Troy was stopped and searcched Troy and gave him a warning ticked. Brothers was stopped in Arizona. “Were-you-speeding,” Green said. Brothers said he did not know which road he was on. “I’m terrible with directions,” Brothers said. “You have seen approximately 100 witnesses testify before you,” Green asks. “Were there toll routes?” Brothers said there were in Oklahoma. Brothers said he checked his messages when he returned. Brothers said he only saw Melvin and Troy in Columbus. Brothers said he does not remember if he told Gary Ray that Troy was going to take the rental car. Troy did not tell Brothers where he was going to go in the rental car. “Why did you not give the $2,500 check to Troy to give to Melvin,” Green asked. He said he did not know where Troy was going. Brothers said Troy left in the rental car the same day the car was rented on Monday the day it was rented. Brothers said Troy left the car in California at Brothers’ apartment. He does not remember how long Troy stayed in California. Troy stayed until he heard the subpoenaes were quashed plus another week. “Did you know Troy was going to be there,” Brothers said. “I knew he was going to be there at some time.” “You did know he was going to Columbus and you could have given him the check,” Green said. Melvin told Vincent that Troy was coming to his house. “Troy moves around a lot,” Brothers said.
“Do you consider yourself to be an honest person,” Deputy District Attorney Lisa Green asked Brothers.
“Yes” he replied. “Do you think that someone who has sex with someone while they are married is an honest person” I”It depends on the circumstances,” “What circumstances justified having sex when you are married to someone else. Tell us what those circumstances are,” “There are no circumstances. I thought about it and I reconsidered my answers,” “So you do not believe you are an honest person,” “I believe I am an honest person who made a mistake,” “Are you saying you are an honest person who was dishonest,” “It was a mistake,” Carla Tafoya. “Was it dishonest when you had sex with Lupe Hernandez when you were married to Joanie Harper: “No,:” “Was it dishonest,” with Shann Kern, Brothers said. The judge said they can discuss this at the break. “Was it dishonest when yo had sex with Maria Crisafulli when you were married to Joanie Harper,” Brothers said that did not happen. Brothers admits he had sex with another women in 2002. Earlier today he said they had sex early in 2002. On Dec. 31, 2002, Brothers denies having sex with Crisafuli. Brothers said they married on Jan. 25, 2003 and 2000. Brothers said his marriage was annulled in Sept. 2001. Did he have sex during this marriage. Brothers said he did not have a sexual relationship. Green confronts Brothers with the testimony of Shayanne Fothergill who said they had sex during this marriage. The jury is asked to go outside. Green said Brothers’ character is at issue and that all of his extra-marital affairs are in question. The judge previously ruled only three affairs should be brought up in regard to motive. Green said Brothers lied when he said he did not have sex with anyone during his first marriage to Joanie Harper. “Why is it relevant,” the judge said, noting he was not married at that time. “Clearly his character for truth and honesty is opened,” Green said. The judge said his affairs when he was not married are not in issue. Green said he wants to ask him questions about sleeping with Shann Kern while he was married. Kern is the mother of Brothers’ only surviving child. “Shann Kern is extremely remote,” Gardina said. Gardina moves for a mistrial for moving in the Fothergill relationship. “The man made a mistake, it has nothing to do with truth or honest,” Gardina said. The judge said Gardina said his affairs were “ignorance on his part.” He had sex with two women during his second marriage. “If it is ignorance on his part, she has the right to examine him on that.” Bush said that if he has done this for 15 years, his answer on “ignorance,” comes into question and it is fair for the prosecution to question him on that. Bush said he will limit it on the time he was married. The jury returns.
Vincent Brothers said he was building a 4-bedroom, 3-bathroom house for himself, his wife, his children and his mother-in-law.
Joanie and Earnestine were aware the house was being built. Joanie helped make changes to it. In June 2003, Brothers said he had an accident on his bicycle. He said he was doing sprints and a car pulled in front of him and he lost control of the bikes. He said he hurt his fingers and his wrists and his shoulder and his back. He said after some stiffness in his back he went to Bakersfield Family Medical Center where he was prescribed a splint. Brothers said he could take the splint off to take showers and he was told to follow up with his regular doctor. Brothers said he went to his regular doctor who told him to exercise it so the muscles would’t atrophy. Brothers said he knew Calvin Calloway. He said he taught English and History, he said he taught PE at another school. Brothers said he ran into Calloway in the alley between the P Street house and the block wall adjacent. “They were smoking marijuana and it was coming into the house,” Brothers said. He said he had to move his kids. “I went out there and told them that if they didn’t leave I was going to call the police,” He said it was Friday the 27th of June, 2003. Calloway said he saw Brothers on July 4, 2003, two days before Brothers’ family was killed.
In 2003, Brothers said he spoke to his mother on a regular basis. “I wouldn’t say frequently, I wouldn’t say not frequently.” “If she didn’t write, it was a mixture of the two,” Brothers said. At times the children would speak to their grandmother. He would sometimes call from his cell phone, Joanie’s cell phone, school, from the Marizion house before he sold it.
He also had a child by the name of Margaret. Brothers started to well up when he says he missed her graduation. “I went down to where she lived and I had a, Shann was supposed to meet me with, and I got lost so I kept calling and I missed it,” Brothers said. “I wanted to make her graduation.” Shann lived in Fontana at the time, Brothers said. “I called about five times trying to get ahold of her but I knew based on my experience with school that after a certain period of time, graduation is over,” “After I knew graduation was over I wanted to make it up to her by taking her up to...” Brothers said he called after the graduation maybe six or seven times. Gardina shows Brothers cellular telephone bills.
Vincent Brothers went to see his brother in Ohio in April because his mother asked him to and that his brother was out of work. He had a conversation with Melvin and said something about coming to California to get married and Vincent said he sent Melvin a couple hundred bucks.
Brothers said he does not remember which airline he traveled. He went from Los Angeles to Pittsburg to Ohio. He had a cell phone at that time. He visited his brother in Ohio. He left his brother’s house to see a Kansas City Royals game in Kansas City. On the trip he called home to check out things and Earnestine answered the phone which was odd and Earnestine said Joanie couldn’t come to the phone. Earnestine said the baby is on the way and you need to get here as fast as you can. He traveled from Kansas City to Bakersfield on a Greyhound bus. He said he took his cell phone with him and made calls to Joanie on the cell phone. It took 30 almost 40 hours to travel to Bakersfield. When he arrived in Bakersfield sJoanie Harper was having indigestion and thought the cramps were coming back, but she was not having the baby. “What did you do,” Gardina asked. “Jump for joy,” Brothers said. Brothers admitted to using the ATM because he spent all his money. He traveled back to Kansas city on a bus. When he arrived he got back in his car and left. He stayed at Melvin’s house until his flight was due to leave and flew back to Bakersfield.
Vincent Brothers denied having sex with Tafoya in Sept, Oct. Nov. and Dec. 2002.
He said he remarried his wife in Las Vegas in 2003. “Did you love your wife,” “Yes,” “Did you wife have an incident in 2003 when he was removed from Raford Johnson School by ambulance,” “Yes,” In March 2003. He learned he was having difficulties when someone called and said Joanie had fallen and he went to Raeford Johnson. Brothers said his wife was pregnant at the time. “When I came in everyone was crowded around and I couldn’t get to her,” Brothers said. An ambulance driver told him not to get in the way. Somebody told him “mother” was on the phone and she was upset and Brothers said he tried to talk to her and tell her what was going on.” “As they were loading her up they said I could go with her by the ambulance,” Brothers said. “I just asked her what was wrong and she said she was having cramps and her back was hurting and I kissed her and she told me to go get the kids and that’s what I did. I told her I love her and that I would be right there.” He got an apartment because “I got into a disagreement with mother,” Brothers said. That occurred in the “latter portion of March,” Brothers said he wanted to call the police because one of her clients was threatening her and I intervened and he threatened me and she did not want him to call the cops. “He was a gang banger that she was trying to rehabilitate,” Brothers said. “Was Earnestine actively involved in the black community?” “Yes.” “I didn’t have an argument with mother, I had an argument with her client and he refused to leave and I told him I was going to call the police and she wouldn’t let me call the police,” Brothers said. “It first took place in the living room,” Brothers said. “I figured I would just cool off and I went to take a shower,” Brothers said. “She came into the bathroom while I was in the shower thinking I was in the bathroom talking to the police...I got upset and left.” “I went and talked to an apartment manager about gettting an apartment then I went over to see Joanie at Kelsey’s house, that’s when I ran into Kelsey,” Brothers said. He said he continued to stay at the P street house every day even after he rented an apartment. “Why did you stay at the P Street house,” “Because Joanie was put on bedrest and she couldn’t move,” He planned to move Joanie and the kids to his apartment but they couldn’t move because after the incident in the ambulance, she was put on bed rest. He continued to help remodel the P Street house, starting in January. “I was working on the house right before the day I left for Ohio,” Brothers said. He said he never had a key to the P Street house because there was just too much confussion. He also said he did not have a key to the front door or the side door. He would get in by knocking or calling.
Vincent Brothers admitted he was not there for the birth of his first son, but he came the day after he was born. He said he visited him “regularly,”
In January of 2000, Brothers said he married Joanie Harper. They did not live together before the marriage. “I didn’t want to do it and she didn’t want to do it, but that’s what he said so...” Brothers said in regard to his brief cohabitation with Joanie Harper. He does not know when he learned Joanie was going to have another baby. Lyndsey was born in 2000. Brothers said he regularly visited his son. He also said he was not there at the birth of his daughter, but Earnestine told him of the birth. He learned of the birth the next day and visited Joanie in the hospital. Joanie returned to live at P street. Brothers said he also went to visit Lyndsey on a regular basis. He does not remember if he was living in a house or apartment at the time. In 2002, Marques Harper had a fourth birthday. He acknowledged that he saw Michelle at the fourth birthday party. “I think I may have spoken, but I was making sure I kept away from everyone because I knew I had the flu, but I did not know it had developed into pneumonia.” He had a house on Marizion which he sold in 2003. Joanie decided to obtain an anullment of their marriage. “We still saw each other but we did not live together,” Brothers said. They would see each other through the children and “sneak behind mother’s back,” because Earnestine wanted to make sure Joanie was “meeting her religious obligation, not having sex.” Brothers denied that he had sex with other women after he separated from his wife. He said there was a period of time when he did have other relationships after the annullment. As to Esther Quiroz, “I wasn’t dating, it was sex,” Brothers said of his relationship with her in 1995. They stopped seeing each other in 1995. He admits to having a sexual relationship with Lupe Hernandez off and on in 2002 and again in May 2003. He said he had sex just once in May 2003. He admits he was married to Joanie Harper at the time. He denies seeing Lupe Hernandez after his wife died. In 2002, he said he was single at that time. He admits to having a sexual relationship with a woman named Maria Crisafuli in the beginning of 2002. He said he was single at that time. He introduced her to a friend of his named “Kenny” to see if they wanted to date after they ended their relationship. He last had sex with Crissafuli in February 2002. He admits to dating Carla Tafoya. He says they started dating in the Spring of 1996. In 2000, he says he did not have a dating or sexual relationship with Carla Tafoya, “We were just friend.” The same for 2001. “We began seeing eachother again, a dating relationship towards the end of 2001,” Brothers said. In Spring of 2001 to August 2002, he admits to having sex with Carla Tafoya. He had sex again with her in May 2003. He said he did not resume the relationship after his wife died. In March 2002, he said he saw his stepdaughter Nadia when he was with Carla Tafoya in Santa Monica.
Members of the District Attorney’s office abducted Troy Brothers from the airport, said defense attorney Michael Gardina. He believes this should be investigated by the state attorney general’s office.
He believes Deputy District Attorney Lisa Green should be referred to the bar. “Let’s see the documents where he went before a judge and he was compelled because I believe it wasn’t true,” Green said. “We have subpoenaed him lawfully,” Green said. “I don’t know anything about him being kidnapped or falsely imprisoned,” Green said. “The proof is in the pooding, where is the out of state witness compact,” Green said. Gardina holds up the out of state compact. Judge Michael Bush said Gardina has to right to bring any action on behalf of Troy Brothers. Green said Anthony Bryan said “Just get him out of Kern County,” in regard to Troy Brothers. Sgt. Watts said he heard Bryan talking to an investigator and he heard him say “get him out of Kern County,” but he did not hear in regard to who. Anthony Bryan said, “council was shrieking a moment ago that she did not have the out of state” papers. “It was out of context, Mr. Birchfield is a paralegal in this case and that is that, but we were being challenged a moment ago,” Bryan said. Green said she believes Birchfield arranged travel for the defense. Green said that if the order is expired and Troy was here after it expired, he was subject to a subpoena.
Brothers said he married Joanie in January of 2000. They married the first time in downtown in Bakersfield. Joanie had already given birth to their first child in 1988. Brothers corrects himself and said 1998.
At that time he lived at the Silver Creek House. He and Joanie moved into that house. They lived in that house about a month. “Did something happened that caused Joanie to move out,” “The revrand or the preacher said God didn’t recognize her or our marriage so she had to move out,” Brothers said. Brothers said she moved out. Brothers begins to cry when Gardina asks about his relationship with Marques in the school year 2002 2003. Marques was attending McKinley Elementary School at that time. He mentions the name of his teacher. Mrs. Martin? He would attend 5 days a week. He was there from 11 a.m. to 3 p.m. He worked at Fremont at the time. “Either I would pick him up or Joanie would pick him up but the agreement was if I had a meeting she would get him on my days.” He said he would pick him up every day if he didn’t have a meeting and they would go to Fremont. “I would let him interact with the Kindergarten kids,” “He was my son, I love him,” “I kind of like would stand back and let him go and do his own thing,” Brothers said. “I called himt he hulk, Inspector Gadget,” he called me?” “How often would you play with your son,” “Every day,” “During the late winter or spring of 2003 was that your routine,” “Pretty much,” He also played with him at 901 Third Street.”If were weren’t at Fremont, we were at third street,” They married on january 25, 2003. He was living on Zion court, but he put it up for sale because Joanie wanted a bigger house, a house with three bathrooms. It sold on Feb. 28, 2003. “After the house sold I moved to P Street,” Brothers said. “Everybody stayed” at Zion including his wife and children. “Who owned the P street house,” Gardina asked. “Joanie and mother,” Brothers said. “He was my partner...we got in trouble all the time,” Brother said of his relationship with Marques. They would put the towels around their necks to make capes as though they were super heroes. They would play every day. They would play in the house, in the yard, in the park. “Anywhere where we could get away and play, we would play,” Lyndsey went with them. Lyndsey would play with them as well. Brothers called Lyndsey “she-girl,” Brothers said. “She would always take my soda and I would always get in trouble for giving her soda, but I couldn’t say no,” Brothers said. They ran around the house, made tents, hHe pushed them on the tricycle in the back of the house.
Defense attorney Michael Gardina continued to question Vincent Brothers.
After Vincent Brothers left the house on Sunday July 6, 2003, he saw the rental car in front of Melvin Brothers’ house. He called the wrong number first calling his principal. The battery on his cell phone, he had the wrong charges so it wouldn’t charge up all the way. He called home to P street but nobody would answer. He did not give his phone to anyone on Sunday, July 6, 2003. He went to the mall. He does not know which it was. Melvin Brothers showed it to him. It was in a nice part of Columbus. He went window shopping, got some pizza and left. He went to Dayton Ohio where his brother Troy told him there were housing tracks. Brothers said he wanted to get some “ideas.” He said he just looked around to get ideas. He looked around for a few hours. He was heading back to Melvin’s house and arrived in Columbus. He was in the right neighborhood, but he could not find Melvin’s house. He stopped at a store and asked where Whiltshire was. He stopped at a brick store on Hague and Steele where two other people said they saw a black man in a blue Dodge Neon crash into a boy on a bike. “I saw a little girl that looked like his daughter Margaret and I waved Hi to her and she waved hi to me,” Brothers said. A little boy came running with his bicycle and when he came down the street, he tripped off the curb and his bike kept going. He was sitting in a car on Hague and Steele. Before he could get out of the car, the child grabbed the bike and said his mother said he was not supposed to cross the street. Brothers asked if he was okay, but the boy said he was not supposed to cross the street. Mr. Adkins came running over and Brothers told him what happened, but Mr. Adkins wouldn’t say anything. It was sunny outside and it was after 7 p.m. It was Sunday, Brothers said. The tire on the bicycle was bent. Brothers said he went down the street to look for Whiltshire. He came back up the street and saw a bunch of people outside and saw the girl who looked like Margaret pointing at him. She said the girl’s name was ma’ something. Gardina asks if it was Madira, and Brothers said yes it was. “I didn’t want them to think I had fled the scene,” Brothers said. So he got out of his car and apologized to the boy’s mother and explained that his father would not say anything to him. The mother said that was not the father of the child. Brothers said she explained to the mother what happened and the mother confirmed the story with the girl and an ambulance driver pulled up. Brothers asked the ambulance driver what she was supposed to do. The ambulance driver said he would talk to the mother and the mother said she didn’t want the boy taken to the hospital. Brothers said he felt bad and he offered to pay for a new tire for the boy. The mother said he should not have gone across the street and it was the boy’s fault and she did not want the money. Brothers said he walked over to the ambulance driver after everything calmed down. The girl followed her to the ambulance and the ambulance driver gave him directions. Brothers waited for everybody including the ambulance driver to leave. He arrived at Wiltshire, found something to eat at a mini-food court down the street and went downstairs at Melvin’s house when it had just gotten dark. It had just gotten dark. He saw on the couch and ate. He watched Sports Center and fell asleep. He went to sleep at Melvin’s house. He fell asleep at he does not know what time. Melvin came down and asked him if he wanted to talk or play video games. Vincent Brothers told Melvin Brothers no. It was maybe 12 or 1 a.m. He had been asleep for a while. He returned to sleep. Brothers said he heard Melvin leaving. He was going to ask Melvin if he wanted to use his car, but Melvin was already gone. His neighbor had a big dog and he talked to his neighbor about the dog and made a joke about the dog. He does not remember the neighbor’s name.
On Friday July 4, 2003, he kept his cellular telephone with him.
“It was raining,” Brother said. The rain put him to sleep on the couch in the basement. He slept until 7:30 or 8 p.m. He went to sleep right after the phone call. “Melvin and I went walking, looking at the public fireworks, we came back home and the girls had come back from their parade,” Vincent said. “I talked with the girls briefly and asked them how things went,” Vincent Brothers said. Vincent asked Melvin to take him to the waterfront in Columbus Ohio. Melvin said he didn’t want to because he had to get up and go to work early and he hadn’t seen Tammy all day. Melvin said he would give him directions on how to go to the waterfront. He went downtown, but he couldn’t find the waterfront. He ended up by the convention center or sports arena in Columbus. There was a blace called “frogs and bogs and wild hogs” and he went in there, it was a night club, Brothers said. He stayed in downtown Columbus a few hours. He doesn’t remember when he left. He returned to Melvin’s house. He arrived back at Melvin’s house before midnight driving the Dodge Neon. He went to sleep on the couch in the basement. He entered through the side door. He got up at 5 a.m. and wanted to go to a basketball tournament in Indiana. He cleaned up and left Melvin’s house. It was just getting light outside. That morning he saw Troy as he was getting ready to get into the rental car. Troy asked him where he was going and asked if he could go along. Melvin couldn’t go because he had to work. He and Troy left in the rental car. The Basketball tournament was supposed to be in Bloomington, Indiana. They drove to Bloomington. They took the blue Dodge Neon. They arrived where the basketball game was to be held, but the radio announced the wrong date. His alternative was to visit a graduate school in Missouri he was thinking of attending. He wanted to be a college professor when he retires. He wanted to see if the school was “suitable.” They went to Missouri. He stopped to see if he was going the right way and whoever he asked told him he was going the right way. He went to Columbia Missouri. He looked at the surrounding area and he did not like it. They returned and stopped in St. Louis Missouri close to downtown by the arches. “They had some kind of a Jazz thing,” they stopped and stretched their legs and got something to eat before getting back on the road. They stayed maybe an hour. They arrived at about 2, 2:30 maybe 3 a.m. on Sunday morning. When he arrived at Melvin’s house, Troy would not go in because he and Melvin do not get along. Troy cursed and got in his car. Vincent said he returned to the basement and slept. He spent the night at Melvin’s house. He woke up twice. The first time Mevin woke him up. He does not remember what time. He grabbed his ankle. Melvin asked Vincent if he wanted to go with him to the store. Vincent said he was still half asleep and didn’t understand. “Whatever he said, I said yes,” Vincent said. “I went back to sleep,” Vincent said. He woke up at about noon. Someone was playing real loud music on the second floor. He took a shower and went upstairs and yelled up to the second floor and yelled “hello” and whoever it was turned the music was. He saw Shemitha coming across the hall. She looked like she just got out of the shower so Vincent went outside. The rental car was there and he thought Melvin would take it.
On Thursday July 3, 2003, Melvin woke him up before 7 a.m. Melvin came downstairs and pulled his ankle. He gave his brother the keys to his rental car. He got out of bed at maybe 10 a.m.
That day, Melvin’s family took Vincent sight seeing to the children’s school and they took him to lunch to get Chinese food. He paid for lunch for his sister-in-law and three nieces. He returned home and talked with Melvin and talked with the three girls. Later he took the girls out for ice cream at 4:30 or 5 p.m. The girls got ice cream and he paid for it. Tammy cooked dinner that night and they watched movies. Then they went to bed. “They all watched movies in the livingroom,” He does not recall the girls going to a fireworks show. On Thursday night, he went to bed around midnight. He stayed the night at Melvin’s house. He stayed in the basement again. He stayed there all night. On Friday July 4, 2003, he woke up at about 6:30 a.m. ot 7 a.m. Melvin was in the house. He woke Vincent up by grabbing his ankle. Vincent asked Melvin what he wanted. Melvin asked if he could use the rental car to go to work. He stayed there that day. Melvin returned from work and said they were closed. Melvin and Vincent watched sports center. He spoke with his mother and sister and niece at about 9 a.m. Tammy asked him if he knew how to wire a ceiling fan. He spoke with his mother on the telephone while he was laying on the couch watching Sports Center. He spoke to Thearl at the same time. He also talked to his niece Tamika. When he left for Ohio he had a cellular telephone. He called his wife on the cellular telephone. On Friday he had his cellular telephone. He kept the phone with him that weekend. “Melvin and myself went to a bedroom on the second floor and I looked at the ceiling fan to see if we could wire it,” Vincent said. He and Tammy and Melvin were standing on the bed with the ceiling fan. It was just before noon. The girls laughed that they would be electrocuted. He went back downstairs with Melvin. The girls had parade practice and left. They left around noon. He stayed at the house, cut the grass and trimmed the trees. We took showers and went shopping looking for videos and dvds. That afternoon he placed a call oh his cellular telephone to his wife. He does not remember how long they spoke, They spoke about how things were. She was fussing at Marques because Marques had taken the phone, the cordless phone and he had put it inside of a shoe and she said she was going to Michele’s probably later and they more than likely would be going out of town to visit relatives. On Friday July 4, 2003, he kept his cellular telephone with him. “It was raining,” Brother said. The rain put him to sleep on the couch in the basement. He slept until 7:30 or 8 p.m. He went to sleep right after the phone call. “Melvin and I went walking, looking at the public fireworks, we came back home and the girls had come back from their parade,” Vincent said. “I talked with the girls briefly and asked them how things went,” Vincent Brothers said. Vincent asked Melvin to take him to the waterfront in Columbus Ohio. Melvin said he didn’t want to because he had to get up and go to work early and he hadn’t seen Tammy all day. Melvin said he would give him directions on how to go to the waterfront. He went downtown, but he couldn’t find the waterfront. He ended up by the convention center or sports arena in Columbus. There was a blace called “frogs and bogs and wild hogs” and he went in there, it was a night club, Brothers said. He stayed in downtown Columbus a few hours. He doesn’t remember when he left. He returned to Melvin’s house. He arrived back at Melvin’s house before midnight driving the Dodge Neon. He went to sleep on the couch in the basement. He entered through the side door.
Vincent Brothers is called to the witness stand. He swears to tell the truth. He is wearing a black suit witha black striped tie and a grey shirt. He sips a glass of water. He speaks so quietly the judge tells him to speak up. He is 44 years old.
He was a vice principal at Fremont School. Brothers begins to cry. he can barely talk. His hands are folded in front of him. He wipes away tears from under his eye glasses. He continues to wipe away tears. He graduated High School in Long Island New York. Gardina shows Brothers his high school diploma. He received a bachelor’s degree in English and Mass Communications. He got a master’s degree as a curiculum instructor. Defense attorney Michael Gardina shows Brothers a copy of his master’s degree. He also obtained a teaching credential. Gardina shows Brothers a copy of his teaching credential. On the morning of July 2, 2003, he made a trip to Columbus Ohio. Gardina asks Brothers is on that day, he had a family. He shakes his head, but cannot speak because he is silently crying hard. Gardina asks who was in his family. Brothers struggles to speak but can’t. He says the names of his children, wife and mother-in-law quietly. Almostly silently. That morning he bought a bus ticket at the Airport Bus in Bakersfield. Gardina shows Brothers a photo of himself buying a ticket at the counter. The prosecution objects to the leading nature of the questions. The judge agrees. He was going to catch a flight to Columbus from Los Angeles. He took the bus to Los Angeles. He caught a flight with United Airlines. He transferred on another airport first then to Columbus. He arrived in Columbus Ohio. The defense attorney showed Brothers a photo of Brothers in the airport in Columbus with a cast on his arm. He arrived in Columbus around 6 p.m. Brothers said he rented a blue Dodge Neon and went to his brother Melvin’s house in Columbus. He arrived at Melvin’s house at 8 p.m. Before he got there he got “turned around” and called the house and asked one of his nieces for directions. When he arrived, Melvin and his wife Tammy Brothers and his daugthers were in the driveway.
Vincent Brothers said he will testify this afternoon. Brothers is accused of killing his wife, three children and mother-in-law. If he is convicted of first degree murder, he could face the death penalty.
Kern County Superior Court Judge Michael Bush advised Vincent Brothers that he has the right not to testify. Brothers acknowledged this right. Bush told Brothers that the prosecution has the right to cross examine him. He acknowledged this right. Bush asked Brothers if he had any questions. Brothers said he has no questions. This will be the first time that the public will hear from Vincent Brothers about where he was around the time his family was killed in July 2003. His family said Brothers first learned of the murders on Tuesday, July 8, 2003, when he went to visit his mother in North Carolina. His family said he was devastated. They took him to the police station after telling him that he was suspected of murdering his family. He declined to speak to police on the advice of an attorney. He has not made any public statements about the deaths since then despite many requests from the media. He did send a letter to The Bakersfield Californian refuting his own attorneys suggestions that his wife was a lesbian.
The defense will call Vincent Brothers to the witness stand.
Neuropsychologist Khazanov did nothing to determine if Brothers had told the truth.
“I don’t think he cannot read a map, but I think it is more difficult for him than for other people,” Khazanov. He would have problems with maps or with verbal instructions. If he had driven someplace several times, that would help him navigate, Khazanov said. He was able to perform some of the 4-block sequences, but none of the 9-block sequences. Green suggests another of the tests are subjective for the test where a person must arrange a series of pictures to make a story. Green wants an example from the test but Khazanov said she cannot because it is privileged. She gives an example of a series of pictures of people in a choir. Green asks what happens if a person is not familiar with how choirs work. “Do you see a subjective component?” Green asked. “No,” Khazanov said. Khazanov said she does not know how the pictures were arranged. Even if she did, she could not because it is an ethical violation. She finally explains the photos and what Brothers did. She does not remember two of the pictures. The judge orders the doctor to reveal the questions on the test even though it is an ethical dilemma for her. He got four correct and seven incorrect of the eleven picture ordering tests.
Deputy District Attorney Lisa Green asks Khazanov if she has been paid $12,000 so far. Khazanov said she has.
Can a problem in this part of the brain be tested with brain scan? Green asked. Khazanov said it cannot. Khazanov said there are similar diagnoses in the book that details all mental problems. She did not do a psychological exam, rather she did a neuropsychological exam and this mental health reference is not useful. Brothers received an MS degree from Cal State Bakersfield, Brothers told Khazanov. He taught English, History and PE. “Even if it wasn’t truthful, it wouldn’t affect my conclusions,” Khazanov said. “I gave him enough malingering tests to show my tests were valid,” Khazanov said. She made a mistake in one of her reports. Khazanov said the mistake is not relevant. She said she occasionally testified. “You were not testing to see if he was a psychopath or a sociopath,” Green asked. Khazanov said that is right. “The brain pattern is not consistent with people with anti-social personality disorder,” Khazanov said. She has handled many cases to determine if a person on death row suffers from mental retardation. She said she is not opposed to the death penalty, she is only opposed to the death penalty for people with mental retardation.
Defense attorney Michael Gardina calls to the witness stand Natasha Khazanov. She is a psychologist with a specialty in neuropsychology.
Neuropsychology connects brain function with behavior. She evaluated Vincent Brothers’ brain functioning to see if he had any cognitive deficits. She interviewed Brothers on Dec. 7 and Dec. 8, 2005. He created a battery of neuropsychological tests. She measured him for intelligence, his achievement in reading, spelling and writing, two tests for memory, attention and concentration and tests for malingering. Khazanov interviewed Brothers for an hour before the testing. She did not rely on this interview to formulate her opinion. She was provided some police records and some other information. They did not contribute to her opinion after testing. Malingering is “faking bad,” Khazanov said. She assessed the person’s attitude when taking the test to determine malingering. She also gave a test of memory malingering. The person is asked to remember 50 pictures and is asked to pick them out of a group of 100 pictures. His attitude during testing was, he was trying to perform well, Khazanov said. “My impression was he was putting forth good effort,” Khazanov. Some of his results were in the superior range and some were lower. This shows no malingering because malingerers score low on all tests. She also tested his intelligence. He scored in the average range of intelligence. His verbal IQ was 107. That is the 68th percentile for people his age. His performance IQ is 91, placing him in the 27th percentile. His full scale IQ is 100, which is the mean. “Mr. Brothers’ IQ was average normal,” His working memory is superior. His perceptual organization is 95, placing him in the 25th percentile. “Mr. Brothers’ cognitive strength is his working memory,” Khazanov said. His performance making pictures from blocks was low. He couldn’t understand the spacial relations. “This would indicate mild impairment,” Khazanov said. He also scored low in picture arrangement to make a story. He has a pattern similar to disability. She also gave a wide range achievement test of spelling, reading and arithmetic. He had low performance on arithmetic. His spelling and reading are within normal range. His arithmetic is at the 8th grade level. Mathematic and block tests are linked. He was also given a memory assessment test. He performed within normal range.
Deputy District Attorney Lisa Green questions bug expert Arwin Provonsha.
He spent 17 hours inspecting the samples. Purdue was reimbursed $1,500. Provonsha intends to be reimbursed for his appearance in court personally. He intends to bill $100 an hour. He will bill about 25 hours. He knew this was a murder investigation and that the car was alleged to have gone through Bakersfield and the radiator and air filter were examined for bugs. He spent one day reviewing the samples, but his report was not developed until a year after he received the samples. Another bug expert developed the report. “Your job was to attempt to prove that wasn’t true,” Green asked pointing both index fingers at Provonsha. “No ma’am that was not my job,” Provonsha said. On the paper wasp, he said it needed further identification in a report. He later changed his opinion to confirm the identification of the paper wasp. He said he is not an expert on any of the bugs. He later says he is. He also said he agreed with Kimsey’s distribution of the grasshopper and the identification. As of two weeks ago, he changed his opinion on the identification and the distribution of the grasshopper. He also said he agreed with Kimsey’s identification of the True Bugs. A report suggests he agrees with the identification of four bugs, which he wrote a month ago. “Since I made that last report I had the opportunity to do additional examining and I have done some more reports,” the expert said. Provosha said he only disagrees with the identification of one of the four bugs. “Additional information I have gotten raises doubts,” Provosha said. He said he would have to examine the bug again to erase those doubts. Zanthapus Coralapus Pantherinas, red legged grasshopper He showed a map that has the grasshopper over much of the United States, but this particular bug is much more limited to the south central part of the country. The expert agreed with the prosecution’s distribution, but later said she missed some areas, but those areas are not in Ohio, Michigan or the east coast. He believes the grasshoppers in questions were found further than the prosecution’s expert. Deputy District Attorney Lisa Green continues her questioning. “That was your goal, to determine that one of these initial three bugs would be found somewhere in the eastern United States,” “No ma’am, my goal was to present the entomology as accurately as I could,”
Deputy District Attorney Lisa Green questions bug expert Arwin Provonsha.
He spent 17 hours inspecting the samples. Purdue was reimbursed $1,500. Provonsha intends to be reimbursed for his appearance in court personally. He intends to bill $100 an hour. He will bill about 25 hours. He knew this was a murder investigation and that the car was alleged to have gone through Bakersfield and the radiator and air filter were examined for bugs. He spent one day reviewing the samples, but his report was not developed until a year after he received the samples. Another bug expert developed the report. “Your job was to attempt to prove that wasn’t true,” Green asked pointing both index fingers at Provonsha. “No ma’am that was not my job,” Provonsha said. On the paper wasp, he said it needed further identification in a report. He later changed his opinion to confirm the identification of the paper wasp. He said he is not an expert on any of the bugs. He later says he is. He also said he agreed with Kimsey’s distribution of the grasshopper and the identification. As of two weeks ago, he changed his opinion on the identification and the distribution of the grasshopper. He also said he agreed with Kimsey’s identification of the True Bugs. A report suggests he agrees with the identification of four bugs, which he wrote a month ago. “Since I made that last report I had the opportunity to do additional examining and I have done some more reports,” the expert said. Provosha said he only disgrees with the identification of one of the four bugs. “Additional information I have gotten raises doubts,” Provosha said. He said he would have to examine the bug again to erase those doubts.
Defense attorney Michael Gardina calls to the witness stand Arwin Provonsha.
He is an entomologist at Purdue University. Provonsha is responsible for their catalogue of bugs. He has two years toward a master’s degree in entomology. He says there is a backlog of 30,000 specimens that have not been processed at all at that museum. There are others that have been sorted to order, but no further. He said that for the vast majority of species, people have not studied how they reproduce. Provonsha said another bug has very little study and last had a story done on it in 1958 which was found on Brothers’ car. He was not given the bug himself to review. He said it could be another species. The wings and antenea are used for identification and those are missing from the photo of the specimen he saw. He also disputed the prosecution’s expert on the distribution of this bug. Provonsha said this bug is studied little. The last known dates of this bug are from the 1970s. This bug is known as a true bug.
Defense attorney Michael Gardina calls to the witness stand Arwin Provonsha.
He is an entomologist at Purdue University. Provonsha is responsible for their catalogue of bugs. He has two years toward a master’s degree in entomology. He says there is a backlog of 30,000 specimens that have not been processed at all at that museum. There are others that have been sorted to order, but no further. He said that for the vast majority of species, people have not studied how they reproduce.
Deputy District Attorney Lisa Green began questioning the defense entomologist Eugene White.
White has only testified once before. He gets paid more for testifying - $1,200 per day. He works for a private company. White is the director of education and training at his company. He maintains bug collections for the company. He has thousands of insects in the collection. White said his collection is small in comparison to other collections. To get the board certification he has attained in entomology, he had to get a master’s degree, work at least five years and pass a test. He has published articles on a wasp similar to the one found on Brothers’ rental car. He was contacted by the defense’s main bug expert. White said he was not made aware of the details of how the bugs played into the criminal case. He has never collected this specific wasp in the field. White said the bug has never been seen in Ohio or Michigan. It is large (one inch to one and one quarter inches) and White said agreed with Green this would make it easy to be found and collected. White said the wasp in question is concentrated in California, Idaho and Arizona.
This variety of wasp will generate a new queen among the workers if the queen does not already exist, White said. He believes the next thrives in the summer. One species of this wasps searches out hot metal piping to make its next, White said.
The jury was excused. Gardina said these wasps will transport themselves in containers that go across the country. Green said there is no evidence that this specific species found on Brothers’ car travels in this way. The prosecution’s witness broadened her opinion on the distribution of this bug because of White’s opinion. But the judge said the defense cannot show slides of a similar wasp that their expert believes behaves the same as the wasp in question because it is irrelevant. The jurors returned. White said the bug in questions goes throughout the Western United States including South Dakota, Texas, Colorado and into Canada.
Defense attorney Michael Gardina called to the witness stand Eugene White.
He works in urban pest management. He is a board certified entomologist, a bug expert. Brothers’ rental car had bugs splattered on it that only live in the western United States, according to the prosecution’s entomologist. The other renters said they did not travel to the western United States. White has specifically studied a certain wasp found on Brothers car, which the prosecution believes Brothers drove from Ohio to California to kill his family. White discussed the “golden paper wasp.” He said this type of wasp travels the country easily in vehicles that travel the country such as moving vans, trucks and RVs. He has seen these wasps in the Midwest where he studies the insects.
Defense expert Brent Turvey charges $195 an hour. He bills a couple of hours for travel, but not all of the time because he can work on the time. He had billed about $7,000 for the case. He will eventually charge $9,500, maybe a little bit more.
In some cases Turvey is asked to recreat crime scenes. “I really do not care for your characterization that I have no opinion. That an opinion cannot be drawn from the evidence is in itself an opinion,” Turvey said. Turvey said a television could fall to the ground without being broken. He said he does not know the cause the television ending up on the television.
Deputy District Attorney Lisa Green questions defense expert Brent Turvey. His offices are located in Alaska.
He knows defense investigator Martin Yant. He is not a member of the American Academy of Forensic Sciences. He said it is a largely a police science organization. He provides webspace and helped develop the journal he said he is the editor for. Green asked him how many of his published articles have been published in this journal. He has done a lot of educating outside of the United States including in Australia and Asia. Green said there is an unfavorable review in the journal of Forensic Sciences against Turvey. Turvey agrees it is possible that the crime scene may be staged. “What supports the possible scenario that the crime scene has been staged,” Green asked. “You must look at the ransacking or looking at monetary items, since we don’t know the answers it could go either way,” Turvey said. Turvey said there are items of clothing strewn about the residence. He can only point to a jacket on a rail. He did not mention this in his report. “You don’t want to start arguing with her because then I will start arguing with you,” Bush tell “There is nothing that definitively proves the crime scene is staged,” Turvey said. “Are you aware a PCU was changed from the south bedroom to somewhere else in the residence, is that consistent with staging,” Green said. Turvey said this, and the television and moving the sheet over her body and dumping the purse are not consistent with staging. “If there is a home invasion robbery nothing has been stolen correct?” Green said. “I don’t know that there were other things that weren’t missing,” Turvey said. He said the sequence of events has not been established. He said he has no opinion about the sequence. He has no opinion about who pulled down Earnestine’s pantyhose, which were found around her knees. Green said there were probes in the wounds of the victims during autopsy. Turvey said this is a wound direction. He says he cannot say where each of the shell casings were found. Turvey said Joanie Harper was laying face down. She was on her side. Turvey said he does not agree with Laskowski’s opinion and did not require it to make his opinion. Green said seven shells were found on or under the bed. Laskowski relied on this to determine the family was laying on the bed while shot. “Are you suggested they did not look for blood on the carpet,” Green said. “I’m suggesting that in the hullabaloo of what goes on at crime scenes, things get missed,” Turvey said. Turvey keeps saying “humility before the evidence.” There is no way to prove or disprove that the offender had a garage door opener to get into the garage and a key to get in the door, Turvey said. “How did the offender enter the residence?” Green said. “There are multiple entrances into this residence,” Turvey said. “My opinion is we shouldn’t speculate,” Turvey said. He has no opinion about how many offenders were involved.
The defense calls to the witness stand Brent Turvey. He is a professor of criminology in Oklahoma. He has qualified as an expert in forensic science.
He is an expert in staged crime scenes among other things. He works for private attorneys and police agencies. Turvey said he has contributed chapters to books on forensic science and has published articles on forensic science. Turvey said he read Mark Safarik’s report on the prosecution witness’s crime scene analysis. He reviewed Safarik’s resume, photos and videos from the crime scene and written documents from the case including coroner’s reports. “My opinion is the report prepared by Mark Safarik is a criminal profile,” Turvey said. The judge asks the jury to step outside so the judge and attorneys can discuss the “criminal profile” issue. Green said this man has solely been called to critique Safarik’s work. “Half of this report is critiquing Mr. Safarik’s educational background and going over his resume,” Green said. Green does not think this is appropriate because the judge has ruled Safarik is an expert. Green same the term “criminal profiling” is a matter of semantics. “Mr. Turvey's bread and butter is testifying that criminal profiling is all a bunch of hooey and is not fact based,” Green said. Gardina argues that Safarik does not have the expertise he claimed and his methods are flawed. “This individual was not involved in crime scene reconstruction...but criminal profiling, which this court has prohibited,” Gardina said. Gardina said Safarik did no investigating, just reviewed documents, just as his witness did. Green said Gardina had the opportunity to question Safarik when he was on the stand. Bush rules one expert cannot critique another expert’s resume. He can render his own opinions on the crime scene, but he cannot render opinions on how Safarik analyzed the crime scene. Gardina asks to have 10 minutes with the witness to prepare him for the new boundaries of his testimony.
The defense calls to the witness stand Brent Turvey. He is a professor of criminology in Oklahoma. He has qualified as an expert in forensic science.
He is an expert in staged crime scenes among other things. He works for private attorneys and police agencies. Turvey said he has contributed chapters to books on forensic science and has published articles on forensic science.
Madira Dowell returns to the witness stand and Deputy District Attorney Lisa Green questions her.
Madira said she told the detectives things so they would leave her alone because she was tired. She said she did not give wrong information, she just did not answer the questions wholly. Green said Madira told the detectives he had a beard. Madira said there was stubble on his face. Madira acknowledged that she told detectives that the driver looked similar to Don King. Madira said Don King has a “messed up afro.” What I mean by that was that his hair was really messy, not that he had a big afro, Madira said. She is sure she told the detective what color the man’s hair was. Madira said she does not know when she is returning to Columbus. Her parents told her but she is not paying attention. She said it will be at the end of the week. When she gets done here today she will get back to a hotel. She has no plans to travel in California. She got here at the beginning of the week. Green said Madira told detectives the drivers hair was “nappy and pointy.” Madira acknowledges she said it was nappy, but not pointy.
Defense attorney Michael Gardina said that Martin Yantz, the investigator in Ohio, was to find out if an interview happened with Bakersfield Police and nothing of the incident itself.
The detectives asked her about the crash at her father’s house and that the police were trying to trip her up. They showed her a photo of Vincent Brothers. Green insists this was a violation of discovery laws. Yesterday Gardina said he did not know what the conversation with detectives was about, yet he said today he based a motion for discovery to the prosecution on it. Green said the defense set the tone for unprofessional and unethical conduct. “Why are those people staying at tax payer expense for five days and are considering trips around California at tax payer expense. Why aren’t they being flown in and out like every other witness?” Green asked. Kern County Superior Court Judge Michael Bush said this was not a discovery issue. The defense investigator said witness Madira Dowell was shown a car, but she could not identify a car, Gardina said. Gardina said this means there is nothing new because it was already in a report. There is nothing like that in any report, Green said. “I would like to have the defense pull the photograph and I will show her the photograph in court,” Green said. Bush said this is a discovery violation and he thinks Green’s idea is fair. “Today she is going to identify Vincent Brothers in court, that is the latest discovery I got,” Green said. Deputy District Attorney Lisa Green would like to exclude this evidence. Green would like it excluded as unreliable. She was shown a photo 18 months ago and could not identify Brothers. Gardina said Madira will say Brothers was in the crash, but she is not sure. Bush asks Gardina if anybody will tie Vincent Brothers into this. Gardina said there will not be. Green said Madira told the detectives the driver had crazy hair like Don King. Bush said Madira’s identification will not be allowed. Gardina asks for a mistrial because he has been denied an identification. Yesterday was the first time Madira saw Brothers. Anthony Bryan said he put Madira Dowell and her family, who are also witnesses, in a hotel for five days because he needs to be able to keep them here long enough to testify and that has been moved around. If they are put on call, they will need to stay. “I’ve been accused of bribery,” Bryan said. Green said they were put on call so she could impeach them, not so they could be recalled to the witness stand. The judge said no one is expecting them to come back. Bryan said he did not know what the plans would be when they were making these plans months ago. Bush tells Bryan he did a good job getting witnesses from Ohio to California. Green accuses the defense of using vague language to get out of their obligations when it comes to the photographs.
She could not identify Brothers as the driver of the car, but she said the driver looked similar to a photo of Brothers.
Madira remembers that her mother was pregnant at the time and she was three weeks from her due date. Her sister was born Aug. 1, 2003. Deputy District Attorney Lisa Green questions 15-year-old Madira. She first heard from an investigator on this in Oct. 2005. Madira said the big fireworks weren’t happening that day. Green asks she wouldn’t have to sit on the roof to see neighborhood fireworks. Madira said she didn’t anyway. She told Wallace she was looking at the big fireworks which happened on Thursday July 3, 2003. Madira acknowledged that she was getting ready to watch the big fireworks up in the sky, but she said they were not the fireworks that went on on July 3, 2003. She was 11 at the time of the crash. Green tells Madira that the investigator told her the date of the crash.
Defense attorney Michael Gardina calls to the witness stand Madira Dowell. She lives in Columbus Ohio.
She was a crash between a boy on a bicycle and a car. The car was blue. The boy looked older than 8. The boy was jaywalking in the street and the man pulled out of nowhere and hit the kid. The boy jumped up and grabbed his bike and started heading back home. She does not remember what the man looks like. He was African American. The man was about 5 feet 9 inches tall. The man wore glasses. She remembers this happened in 2003. It was the weekend of July 4, 2003. She remembers it was that weekend because she asked to sit on the roof with her siblings to watch fireworks. That day they were having a family cookout. She was on the porch when she saw the crash. The boy looked scared and he grabbed his bike and went home.
Deputy District Attorney Lisa Green wanted to play tapes of Brien Atkins from his interviews with detectives. She wanted Atkins to point out where he was intimidated or harassed.
During his testimony, Atkins said he felt intimidated by detectives. Atkins clarified that the detectives did not badger him, but he felt intimidated because they were detectives and he felt harassed because of the time they came. The judge said in that case the tapes will be not played.
An Ohio man who says he saw a car crash on the weekend Brothers' family was killed claims detectives intimidated him.
Deputy District Attorney Lisa Green asks the judge to play the tape and for him to point out to me where the detectives intimidated or harassed him. The judge said he would like to review it first.
Deputy District Attorney Lisa Green continues to question Atkins.
He said he saw a crash with a man in Ohio on the weekend of July 4, 2003. He first spoke to law enforcement in Nov. 2006. He said it is difficult for him to pin down details because he has many children and much time has passed. Atkins told detectives the crash may have happened in 2000. Atkins told detectives there were two doors on the Dodge Neon. He now says he is not sure. Atkins said he can’t say that Brothers was the driver of the car.
Defense attorney Michael Gardina calls to the witness stand Brien Atkins.
He lives in Columbus, Ohio. He has owned the house two years. He lives there with his wife Frederiena and their three children. The youngest is Haley, Born Aug. 1, 2003. His daughter Madera is 15. He witnessed an auto accident in 2003. A blue Neon was involved with the accident. The accident happened on the corner near his house. Gardina showed Atkins photos of the neighborhood where the accident happened. A small child on a bicycle, maybe 10 years old, was involved in the accident. He said there are number of accidents at that intersection. He noticed the child was on the ground and the back tire was bent and unable to turn. He believes this happened on the fourth of July weekend on 2003. He remembers this because there was a get together. He thinks it was Sunday because that was the day of the get together. He said he remembers fireworks. The boy who was hit was Caucasian, Atkins said. The kid was more worried about getting himself and the bike home than being injured. Atkins says the driver was African American. His hair was close to his scalp. His wife was pregnant with their last child at the time of the accident.
Defense attorney Michael Gardina calls to the witness stand Charles Pilley. He was a principal at Fremont School. He is now retired. He was principal for five years.
He knew Vincent Brothers because Vincent Brothers was the vice principal at Fremont School. They worked together for five years. Vincent Brothers worked with him in the 2002/2003 school year. School started Aug. 2002 that year. The school year ended in June 2003. Pilley saw Brothers interact with his son Marques. Brothers would to go Marques’ school and would bring him back to his work. “He was playful with Marques...What I observed was what a normal father would do,” This interaction went on through the end of the school year. Pilley also knew Joanie Harper as she worked for him previously as campus security. He saw Joanie Harper and Vincent Brothers together. He would go in to see them and they would both be in a room together reading the Bible. This was seen in the first two years he was in Fremont School before she was transferred in 2001. “It was like any other relationship...I never noticed any arguing. They were both employees and they were both very professional people at school,” Pilley said. “He was affectionate (to marques) He was caring for him. If Marques was doing something wrong he wouldn’t go over there and beat him up, he would go over and say ‘hey Marques stop’,” Pilley said. Pilley said he recognized Vincent Brothers voice. Deputy District Attorney Lisa Green questions Pilley. Before the killings Pilley and Brothers’ relationship was just professional. He did not know Joanie and Vincent were married in 2003. She went to Raford Johnson in January 2000. He was not sure that Joanie and Vincent were married in 2000 because there was a district policy about nepotism. Pilley counseled them not to read the Bible during work time, only on their own time. Pilley agrees with Green that Vincent Brothers was a private person. Pilley said he wasn’t aware about how many children he had. “He seemed to be proud of his family, but we never discussed it,” Pilley said. Pilley knew Vincent Brothers had a baby because Joanie Harper brought the baby to the school at about 6 months old. He said he was also aware that Joanie Harper had a baby in May 2003. He said he believes the baby was a girl. Pilley said he did not know about a teenage daughter. Before 2002, Pilley said he is not sure seeing Brothers with Marques. He knew Brothers had children before 2002. Pilley said he assumed Brothers was living in the house he built after January 1, 2003. He went to pick him up at his home sever times during the 2002/2003 teacher of the year awards. He did not pick him up from the apartment or the Harper house. Pilley said Brothers would sometimes stay at school until 4:30 p.m.
Defense attorney Michael Gardina calls to the witness stand Tiana Brothers, Melvin and Tammy Brothers daughter.
Her uncle, Vincent Brothers, arrived in Ohio on Wednesday, July 2, 2003. He arrived at 8 p.m. or 9 p.m. She talked to Joanie Harper for a few seconds. They had a cookout. Vincent Brothers stayed at the house that night and on July 3, 2003, they went to the China Buffet. They drove to her school to show Vincent Brothers around. They went to Dairy Queen later that evening and Vincent Brothers gave her a driving lesson on how to parallel park. That night, she and her sisters and mother went to a fireworks show downtown. She returned at 10 p.m. or 11 p.m. and saw Vincent Brothers and Melvin Brothers on the back porch. Vincent Brothers stayed at the house on Friday. She saw him at 8 or 9 a.m. He helped put a ceiling fan in her little sister’s room. That day she had a parade to go to for her school later in the afternoon. She saw Vincent Brothers that evening when she returned. She did not see him on Saturday or Sunday. She next saw him there on Monday morning at 8 a.m. or 9 a.m. They spoke in the living room. She heard the door open to the basement where Vincent Brothers was staying. On Tuesday, she had a water fight with her uncle. Her uncle and her father then went on a car trip to see her grandmother. She initially said she saw Vincent Brothers on Friday evening, but later said that was not the truth. She said she changed this statement because the detectives were badgering her. “I felt pressured and I felt like I was being intimidated,” Tiana said. Deputy District Attorney Lisa Green questions Vincent Brothers’ niece Tiana Brothers. “Tell us how you lie to your parents when they are asking you question,” “I don’t lie to my parents, I change my story when they harass me,” “Changing your story, is that what you would consider a lie,” “I guess so,” “How often does that happen,” “No very often, my parents don’t usually harass me,” She said she never spoke with her parents about the investigation before the investigators came to the house to interview her. She was born June 23, 1989. She just turned 14 when detectives spoke with her. “Do you think badgering you is an excuse or a reason to lie to police,?” “Yes it is,” “What are the other justification to lie to the police?” “There is no reason,” “Were you aware your conversation with police is tape recorded,” “No,” She reviewed her statement last night. The judge asks what the answer was to a question and Tiana said “yeah.” But Green corrects saying Tiana said “sure.” “Repeat it like you said it to me, Tiana,” Green tells Tiana. The detectives asked Tiana how her uncle paid for lunch, Green said. She told detectives that she doesn’t know, Green said. Tiana said she does not remember making those statement. “If you didn’t remember then, there is no reason you would remember today,” Green asks. “I guess not,” Tiana said in a small voice. Vincent Brothers might have left Friday night, Tiana said. “Your partner was badgering me,” Tiana said. “My parenter,?” Green asks in a mocking tone. “Yes,” Tiana says in a sassy voice. “They started badgering me about Friday evening,” Tiana said. She admits she told detectives “it takes two days to get to California and two days to get back.” “Your attitude seems somewhat negative in that you are no responding to my questions...” the judge cuts her off and tells her it is irrelevant.
Defense attorney Michael Gardina filed a motion to dismiss.
Deputy District Attorney Lisa Green has concerns about a witness - Madera Dowell’s mother, Fredericka Atkins. Madera Dowell said she witnesses a crash with Vincent Brothers in Ohio around the time of the killings. The defense believes Atkins will be able to establish when this crash happened. Green said she has never received discovery about the date of the crash and the date is in great dispute. The judge ruled Gardina cannot ask the mother what date the incident happened because it was turned over to the prosecution late. Gardina said he wants the case dismissed because he believes the prosecution has been able to find the ambulance the defense believes responded to the crash, but has not turned it over. Green said this is completely untrue. The boy who Brothers got into a crash with was never located or identified and no ambulance records corroborate this. “There is no paper trail from this supposed accident,” Green said.
Defense attorney Michael Gardina called to the witness stand Vincent Brothers’ niece Shemitha Brothers. She is 18 years old. She lives in Columbus, Ohio with her mother Tammy and father Melvin.
In July 2003, Vincent Brothers visited her. She does not remember which date. He was driving a blue little car. Shemitha saw her uncle pull up at about 8 p.m. She was at home with her sisters and her parents either came home at the same time as Vincent Brothers or a little later. They had a cookout and her father and uncle talked. She and her sister Tiana Brothers were on the porch when Vincent Brothers called his wife and Shemitha said she talked to her. She saw Vincent Brothers on Thursday July 3, 2003. They went out to eat at China Buffet. “Uncle Vincent” paid for lunch with a credit card with her sisters and mother. They went to the Dairy Queen and Vincent Brothers gave driving lessons to her sister. That day they showed him their school. She said she saw Vincent Brothers on Friday July 4, 2003. “They put the ceiling fan in that day,” Shemitha said. Shemitha said she left for a parade. She was a drill girl. She would hold flags and march in parades. She went with her sister and mother. She does not recall seeing Vincent Brothers when she returned to the house. Shemitha said she could hear someone going in and out of the basement.
Deputy District Attorney Lisa Green questions Vincent Brothers’ sister-in-law Tammy Brothers.
“I felt my rights were being violated,” Tammy Brothers said of her interview with detectives. Green asks Tammy Brothers if she thinks she was being cooperative and Tammy Brothers said she was being cooperative even though she told her husband he did not have to speak with detectives. During a grand jury investigation, Tammy Brothers said she never saw Vincent Brothers when he returned at 11 p.m. on Monday, July 7, 2003, she only heard him. During the grand jury testimony, Tammy Brothers said Vincent Brothers came in the side door. He came in the side door, but he knocked on the front door, Tammy Brothers testified. “Did he knocked on the front door or did he ring the door bell,” Green asked. “I don’t remember if it was a knock, or the doorbell,” Green said. Tammy Brothers said she does not remember the detectives asking her if she and her husband went to Wal-Mart. Green said she initially denied going to Wal-Mart to detectives. Tammy Brothers denied talking to Vincent Brothers on the phone during an interview with detectives. She said she was on the phone with his sister. During the grand jury testimony, Tammy Brothers said she was on the phone with Vincent Brothers during the interview. During the grand jury testimony, she said she told Melvin Brothers not to talk to detectives any more because Vincent Brothers told her to tell him that over the telephone. Tammy Brothers said she drove the Neon to Big Bear supermarket and that was the only time she drove the Neon. She previously said Vincent Brothers showed her daughter how to parallel park the Neon on Wednesday, July 2, 2003, Green said. Today Tammy Brothers said she does not remember which day it was. Tammy Brothers said she may have seen the Dodge Neon on Saturday. She told detectives that she saw Vincent Brothers on Monday between 10 a.m. and 11 a.m., Green said. She doesn’t recall saying that. Tammy Brothers testified today that she went to Wal-Mart and bought some bedding, a fish tank and craft supplies on Sunday, July 6, 2003. Green said she initially denied this. Tammy Brothers said she doesn’t remember that. “Do you think a person who lies to law enforcement is cooperating with law enforcement,” Green asked. “I don’t have an opinion on that,” Tammy Brothers responded.
Defense attorney Michael Gardina called to the witness stand Tammy Brothers. She is married to Vincent Brothers’ brother Melvin.
They have three children: 18, 17 and 11. Tammy Brothers testified to the following: Vincent Brothers arrived at Tammy Brothers’ house in Ohio on Wednesday, July 2, 2003. She was at work when he arrived. She left work at 7 p.m. or 7:30 p.m. Vincent Brothers was driving a blue Neon. He arrived alone. She arrived home at 7:30 p.m. or 8 p.m. Tammy Brothers said she greeted Vincent Brothers then started dinner. The family had a cookout and watched a movie afterwords. Vincent Brothers stayed the night. He stayed in she and her husband’s bedroom in the basement. She and her husband stayed on the main floor. On Thursday July 3, 2003, she woke up at 8 a.m. or 9 a.m. Vincent Brothers was at her house that day. She went out for lunch with Vincent Brothers and her daughters to the China Buffet. They went to the restaurant at about 1 p.m. Melvin did not go to lunch because he had just come home from work and needed to shower. Vincent Brothers paid for lunch. She went around town, ran errands with Vincent Brothers and showed him the city including where her daughters went to school. They returned to her house, but she does not remember what time. Melvin and Vincent Brothers spent some time together. Vincent Brothers tried to teach her middle daughter how to parallel park in the rental car at dusk, maybe 9 p.m. She went to the fireworks show with her daughters and Melvin Brothers and Vincent Brothers stayed at the house at about 9:30 p.m. She returned home to find Melvin and Vincent Brothers. She does not remember what time she went to bed that night. On Friday, July 4, 2003, her family and Vincent Brothers were there when she woke up at about 9 a.m. She saw Vincent Brothers throughout the morning. He helped her install a ceiling fan at about 11 a.m. She and her daughters left to go to the school for the girls to perform in a parade. They are part of the color guard. They left at about 1 p.m. Vincent Brothers was still at her house at that time and his car was still parked there. She returned at about 6 p.m. Vincent Brothers was not there when she returned. She did not see him on Saturday, July 5, 2003. She went to work that day at 9:30 a.m. and returned at 2:30p.m. She also did not see Vincent Brothers on Sunday, July 6, 2003. She does not remember what she did that day. She next saw him on Monday July 7, 2003, at 11 p.m., give or take an hour or two. She and her husband went out to eat at a restaurant that evening at about 8 p.m. and returned at about 9:30 p.m. or 10 p.m. Vincent knocked on the door that night and she heard it. Melvin Brothers was in bed when they heard the knocking. They had just laid down. On Tuesday, July 8, 2003, she saw Vincent Brothers at about 9 a.m. They sat around and talked a little bit. Vincent Brothers and her children had a water fight shortly after 11 a.m. Vincent Brothers appeared “fine.” “He didn’t seem anxious or tired, he was ready to take a trip to see his mother with his brother,” Tammy Brothers said. They left for the trip about 12 p.m. During Vincent Brothers’ stay, she drove the Dodge Neon to Big Bear, a supermarket. She first became aware something happened to Vincent Brothers’ family between 6 p.m. and 8 p.m. when her mother-in-law called her at a friend’s house and told her about the deaths. She returned home and turned the television to CNN because she heard there was a bulletin out for Vincent Brothers' arrest. Then she looked on-line to see reports from the Bakersfield newspaper. Her sister-in-law Thearl Bernard asked her not to tell Melvin and Vincent Brothers about the killings and she did not. She has testified several times about these incidents. During her first interview the Bakersfield Police Detectives treated her “rude.” She said the same thing happened during the second interview.
Defense attorney Michael Gardina called to the witness stand Gary Littles’ wife, Tina. She has known Brothers for about 4 years.
She went with her husband to see Brothers’ black Mercedes at 24 Hour Fitness on Sunday July 6, 2003. She noticed the car was dusty, Littles testified. Gary Littles tried to call Vincent Brothers’ cellular telephone between 12 p.m. and 1 p.m. Gary Littles left a message.
Defense attorney Michael Gardina called to the witness stand Gary Littles. He has known Brothers for 10 to 13 years.
He saw Vincent Brothers’ black Mercedes at 24 Hour Fitness every day even when Brothers was not there. Littles asked Brothers if he wanted to sell the car. Littles went to see the car on Sunday July 6, 2003. The car had a bunch of dust and cobwebs, Littles said.
Defense attorney Michael Gardina called to the witness stand a Bakersfield Police detective.
He was one of the first patrol officers who arrived at the Harper house on the day the bodies were found. The detective was sent to the 24 Hour Fitness at the corner of Gosford and White. The officer was sent to find a black Mercedes that belonged to Mr. Brothers. There was a layer of dust on the entire vehicle when he found it, the detective said. There were cobwebs on the back bumper of the vehicle extending to the ground, the detective said. There were cobwebs on the back wheel area to the ground, the detective testified. The vehicle was towed to the Bakersfield Police Department, the detective testified.
Defense attorney Michael Gardina calls to the witness stand private investigator Dean Tarricone.
He took some photographs of Vincent Brothers on July 15, 2003, at the direction of Attorney Curtis Floyd, who initially represented Brothers after his family was killed. He took photos of Brothers’ body and noticed no injuries. Tarricone took a photo of a brace Brothers had on his arm at another time.
Defense attorney Michael Gardina calls to the stand Bakersfield Police Detective Freddie Calvillo.
Calvillo spoke to a medical assistant who helped place a sprint on his right hand in the days before the killings. She testified that Vincent Brothers told her two stories about how he hurt his hand. First he said he got into a bicycle crash then he said he got the injury during a domestic dispute, the medical assistant said. In the initial investigation after the killing, the medical assistant told Calvillo just the first story that Brothers was hit by a car while riding a bike. In the days before the medical assistant was set to testify she revealed Brothers’ second story for the first time.
Defense attorney Michael Gardina calls to the stand Bakersfield Police Officer Kathleen Griffenburg. She helped secure the crime scene. She interviewed Jasper Robinson.
Robinson said several months after the killings while in jail that he saw Vincent Brothers running a hose behind the Harper house on the day the prosecution believes his family was killed. But he never mentioned it when officers initially questioned him. Robinson was one of the first people to see the family dead. Robinson said he heard someone screaming and went into the house and found the family dead, Griffenburg said.
Defense attorney Michael Gardina calls to the witness stand FBI special agent David Drew.
On July 16, 2003, his team helped to search Brothers’ Dodge Neon in North Carolina. He collected trace evidence from the Dodge Neon. The floor mats were seized along with sections of the upholstery and other items were taken for analysis including the driver’s door hand rest. The car was also vacuumed for fibers. He vacuumed the front and back seats and the trunk. The defense has argued that Vincent Brothers did not kill his family because no physical evidence links him to the scene of the crime including searches of his person, apartment and cars that he was believed to have driven around the time of the killings.
The defense would like to call a witness who will testify that Brothers had a difficult time dialing correct phone numbers because he called the witness and said he had the wrong number a couple of times. The defense would use this testimony to explain a phone call he made on his phone records from around the time of the killings.
The prosecution believes this is not relevant. The judge said this will not be allowed.
Deputy District Attorney Lisa Green would like to raise an objection against some of the witnesses defense attorney Michael Gardina intends to call today.
The defense would like to call an attorney to explain the difference between a divorce and an annulment. Green believes this should not be allowed. The defense wants to argue that Brothers could not have cheated on his wife Joanie Harper during their first marriage because it was annulled, meaning legally they were not married. Green believes the difference is irrelevant between an annulment and a divorce. The judge said this evidence should be handled through a stipulation. Green objects to the defense calling Jasper Robinson’s wife, Mary Gage. Green said her testimony would not be admissible and the defense interviewed her too late. Gardina said somebody told him about her last week and the defense called her. Gage also has evidence on his character. Robinson said months after the killings that he saw Brothers in the backyard of the Harper house hosing off the porch on the day of the killings. Green also objects to the testimony of two of Earnestine Harper’s friends because one of them would testify about a “confession” Joanie Harper made on her last visit to church.
The judge tells Prosecutor Lisa Green that she can cross examine and she doesn’t have to be gentle. Experts should expect a withering cross examination, the judge said.
But the judge said Green was going over the top, being argumentative with witnesses and making remarks to the witness. Before the jury was released, Dr. Leo said “This is the equivalent of the rubber hose in my opinion,” “In your bought and paid for opinion,” Green said. The judge cut her off. Green said she feels very constrained with the questioning. Green said she feels like it is okay to have a tone of voice that the witness is lying. But she said that is not an excuse for her last comment. My frustration is the witness is incredibly nonresponsive. “Just because you don’t like his answer doesn’t mean it is non responsive,” the judge tells Green.
Deputy Distric Attorney Lisa Green continues to question interrogation expert Dr. Leo.
Green asks Leo if he remembers the tone of the September 2003 interview between detectives and Melvin Brothers. Green enumerates Melvin Brothers’ lies to detectives. Leo agrees that the detectives can confront the witness with contradictory evidence.
Deputy District Attorney Lisa Green continues to question Dr. Leo, an expert in the field of police interrogation and false statements.
“Isn’t it one of the principals of police interrogation that not more than two officers be in the room because it might intimidate them,” Green asks. “It is certainly possible,” Leo said. Leo was in the room in over 100 interrogations with detectives while he was collecting his data for a PhD. POST is the group that gives officers guidelines in California. Dr. Leo was provided interrogation tape and transcript and a declaration of Melvin Brothers saying he had been coerced. “Do you think the police knew if he was a witness on Sept. 18?” Green asks Leo. This question is objected to. The judge does not allow it. The tape lasts two hours. He watched it once or twice. This would mean his bill was $550 or $1,100 for viewing the tape. “Do you think when police go into an interview they have as much information surrounding the crime as possible,” “As much relevant information, yes.” How should a witness be interviewed? Why are you waiting so long before you answer a question are you waiting for an objection? The judge says that is inappropriate. Proper interview techniques involve asking open ended questions. You should ask questions in a nonthreatening manner. The goal should be not to badger or manipulate. If you have a suspicion the person is lying, you can ask them out contradictory evidence, but not to be suggestive or manipulative. If the officer thinks a person is lying then yes never put more than mild pressure on a witness. If a person were interviewed multiple times would every interview be important? Maybe, maybe not. “Wouldn’t you want to make the determination rather than what the defense attorney tells you,” Green asks. Maybe. “How intellectually honest is it when you only review one statements of a witness when there are three previous statements,” “It depends on what are in those three previous statements,” Leo only reviewed the Sept. 18, 2003, interview of Melvin Brothers. He also read the transcripts of the two July 2003 interviews since the last hearing. Since January, I take it you decided that is relevant. “I didn’t think it was relevant.” “Do you believe it would be important if a witness admitted lying to them,” “Yes that could be important,” Do you agree that the previous interviews were open ended and non threatening? Yes. Leo said he read that he lied about the credit card. “It’s a lie, but I don’t think that we can infer from it that it was providing an alibi,” Leo said. “What do you do, Dr. Leo, when you try what you suggested as mild pressure on a witness you think is lying. What do you do? Do you give up? Do you stop questioning?” “You go back and you investigate the case better because your version of the truth may be wrong. Going beyond mild pressure is inappropriate. If you don’t have the evidence and you go back to the drawing board.” “It’s never permissible to go beyond mild pressure on a witness. It is too dangerous,” “Your solution is to go back to the family and say you’ve given up,” “Your solution is to give up,” Leo said that is not what he said. Melvin Brothers testified that he did not see his brother on Friday July 4, 2003. Initially he told detective he spent that day with his brother in Ohio. But he later changed his statement to say he did not see his brother on Friday. Melvin Brothers testified that investigators forced him to change his testimony on several issues because he was threatened with prison and being implicated in the murders. In the days after the killings Melvin Brothers denied using his brother’s credit card at Wal-Mart in Ohio until he was confronted with the fact that the investigators he was caught on tape making the purchase.
Deputy District Attorney Lisa Green suggestion Dr. Leo, an expert in false confessions and police interrogation, is critical of law enforcement as a ploy to attract defense attorneys as clients.
Green asks if Leo’s articles are critical of law enforcement? He said some people view them that way. “It’s not my intent to write possitive or negetive articles,” Leo said. “Everyone in the justice system wants to get guilty people and release innocent people,” “I cannot think of a single social scientist who would agree (that false confessions can be elicited by interrogation techniques)” Green asks Dr. Leo to count the articles book chapters from other publications. How many had nothing to do with false confessions and police interrogation.
Deputy District Attorney Lisa Green questions Dr. Leo, an expert in interrogations.
Leo says he works outside the university as a consultant to lawyers about false interrogations. He also charges for travel time. He testified already in January. In that hearing he billed about $4,000. For his 5.5 hour travel to Bakersfield, testifying and back, how much did he get paid? About $4,000. He said he doesn’t know how long he will be charges today. He stands to earn $12,000 from his work on this case. How many new cases has he taken on since he was here in January 2007? He can give an estimate. He says he has taken on between 10-20 cases since then and is actively working on them. Since January 26, he has not been retained by any prosecuting attorneys. Green brings up a specific case he studied and found a person likely gave a false confession in the murder and rape of a woman in Arkansas. He confessed and Dr Leo said the confession was coerced and no independent evidence connected him to the crime. Green raises facts from the case that may link the suspect to the crime. Leo said he doesn’t remember the facts. He does recall it being a detailed confession. Police said he pointed out where the bodies where found, but he denied that, Leo said. Green brings up another case Leo worked on many years ago. He wrote on the case, but he never worked on the case. Green brings up facts of the case. Leo said he does not remember the facts. Leo said this man also falsely confessed. Green believes the confession in this case cooberates the other evidence and there was physical evidence linking the confessor to the crime. “When you reviewed these so called false confessions, do you look at the evidence to see if it cooberates the person’s confession,” Leo said he does. Melvin Brothers testified that he did not see his brother on Friday July 4, 2003. Initially he told detective he spent that day with his brother in Ohio. But he later changed his statement to say he did not see his brother on Friday. Melvin Brothers testified that investigators forced him to change his testimony on several issues because he was threatened with prison and being implicated in the murders. In the days after the killings Melvin Brothers denied using his brother’s credit card at Wal-Mart in Ohio until he was confronted with the fact that the investigators he was caught on tape making the purchase.
Professor Richard Leo detailed the coersive techniques BPD detectives used on Melvin Brothers, Vincent Brothers' brother.
The Reed technique involves accusation, confrontation, attacks on denials, suggestions they will be better off changing their statements, use of themes, culpability will be less or eliminared, if you don’t cooperate you will be worse off. More specific, less specific. Suggestions of inducement. Moving from denial to admission. “They have defined American police interrogation, even departments that don’t use their manual use their techniques,” The Reed method is designed only for suspects. Interrogation techniques were used on Melvin Brothers. Some of Watts and Krueger’s techniques were psychologically coersive in nature. “They were psychologically coersive because they involved theats and promises,” They promised him leniency if he went along with their story, Leo said. What kinds of techniques does Krueger use? “The technique used here is clearly a threat and a promise,” Leo said. “Melvin has two choices, he can either be a suspect in a five person murder or he could be a witness...At the end he says there is nothing more serious with this type of crime except what Hitler did killing 6 million people...He could be charged as an accessory, he could be charged as a principal...if he provides the account they are looking for he doesn’t get charged with a crime. Threats here are explicit if not implicit and the promise of leniency or immunity if he provides the preferred account.” “This goes beyond anything trained in the Reed method.” “This is the kind of technique police are trained not to use.” It implies the district attorney will review the case and could lead to being charged with an accessory or a murder charge. “How does isolation play into the events,” “It’s an interrogation technique to isolate someone in a custodial setting away from friends or family with the idea that is the way you can maximize your ability to get the statement you are looking for.” Leo said this is more effective on people with less education, but it depends on the person being interrogated. “It is easier to break down a witness and get a false statement...because witnesses have a lot less to lose. They are not incriminating themselves.” “This is a classic threat promise kind of technique where you set up two choices, the good choice is you escape punishment in the criminal justice system,” Police are trained not to use this technique, Leo said. “You don’t want to go down with your brother pal,” Krueger told Melvin Brothers. “This is a threat of severe and serious punishment if he does not provide the account the detective is looking for,” Why would the detectives reference Hitler? Will emphasizing the gravity by bringing in refence to Hitler, would that be psychologically coersive? “Absolutely,” Leo said. “You’ve got two choices,” the detective tells Melvin. “Choice No. 1 Melvin can be a witness, Choice No. 2 Melvin can be a suspect.” “It’s clear the technique being used here is to offer the two choices,” Leo said. The detective repeatedly threatens Melvin that he will be a witness or a suspect, Leo said. Melvin Brothers testified that he did not see his brother on Friday July 4, 2003. Initially he told detective spent that day with his brother in Ohio. But he later changed his statement to say he did not see his brother on Friday. Melvin Brothers testified that investigators forced him to change his testimony on several issues because he was threatened with prison and being implicated in the murders. In the days after the killings Melvin Brothers denied using his brother’s credit card at Wal-Mart in Ohio until he was confronted with the fact that the investigators he was caught on tape making the purchase. Defense attorney Michael Gardina called to the witness stand Dr. Richard Leo. He is a professor of law at the University of San Fransisco. For nine years prior he was a professor of criminology and psychology at UCIrvine. Before that he was a professor of sociology and law. He has spent many years researching police interrogations, he had been present at over 100 interrogations and viewed about 60 tapes of interrogations. He has a book coming out about police interrogations. He has also had many articles published. He lectures to law enforcement on interrogation tactics and how to prevent false confessions. Leo also lectured to judicial organizations on police interrogations and false confessions. He also attended police interrogation courses and was on an advisory committee to the Long Beach Police Department to the police chief and staff. He has consulted with criminal defense and prosecutors on ocassion including the California State Attorney General’s Office. He has consulted on 700 to 800 cases in the last 10 years. He considers himself a consultant not an expert witness. He testified in about 15 to 20 percent of the cases in which he consults. He has testified at 84 trials in 14 states including California. He has also testified at hearings. He has testified in 22 counties including Kern County. He generally testifies about police interrogation, psychological coersion, false statements and confessions. He has also testified in federal and military courts. He charges $275 an hour for his time. He has put in 40 hours on this case. He has testified previously in this court on this case. He reviewed a transcript of Vincent Brothers’ brother Melvin Brothers’ testimony. “Police are trained to interview witnesses and interrogate suspects, they are very different activities,” Leo said. “The idea is to get the person do most of the talking and to find out the truth,” Leo said. “You only interrogate suspect whose guilt they are convicned of, there is a presumption of guilt when they interrogation...pressure accusation influence, the goal is to move the suspect from denial to admission,” Leo said. “Interrogation is based on a presumption of guilt,” Leo said. “Sometimes police interrogations can lead to false admissions, false incriminating statements...this is well documented...both the fact that they occurr and the psychological techniques that lede them to occur,” Police receive training in the academy and when they promote to detective and they have continuing education courses where they get updated semiars or classes. “Why are interrogation techniques not supposed ot be used of the interview of third party witnesses,” “Interrogations are not supposed to be used on witnesses. They are psychologically very powerful techniques. The idea is to get the witness to tell you through open ended questions...Not to use the kind of interrogation techniques,” “Psychologically there are a range of coersive techniques, deprivations of sleep and food but there are also specific techniques, threats of harsher treatment and punishment...to family and friends...explicit and implicit...promises of leniency in exchange for giving an account...Like threats these techniques can be coersive because they can lead people to make involuntary statements. These techniques can cause people to do things they otherwise wouldn’t do.” “Police interrogation through the use of these techniques...can lead to make false statements.” “Psychological interrogations can cause people to make false statements because they feel they have no other choice...This is a well studied phenomenon.” “Suspects or third parties who see themselves as trapped and who are promised leniency if they cooperate and are threatened with charges on the other hand perceive that is the only way out of the coersive interrogation environment,” Police are trained to fabricate evidence against a person to elicit a confession, Leo said. Spet. 28 2003 interview with Melvin Brothers he saw the use of coersive interrogation tactics. The Reed technique involves accusation, confrontation, attacks on denials, suggestions they will be better off changing their statements, use of themes, culpability will be less or eliminared, if you don’t cooperate you will be worse off. More specific, less specific. Suggestions of inducement. Moving from denial to admission. “They have defined American police interrogation, even departments that don’t use their manual use their techniques,” The Reed method is designed only for suspects. Interrogation techniques were used on Melvin Brothers. Some of Watts and Krueger’s techniques were psychologically coersive in nature. “They were psychologically coersive because they involved theats and promises,” They promised him leniency if he went along with their story, Leo said. Melvin Brothers testified that he did not see his brother on Friday July 4, 2003. Initially he told detective spent that day with his brother in Ohio. But he later changed his statement to say he did not see his brother on Friday. Melvin Brothers testified that investigators forced him to change his testimony on several issues because he was threatened with prison and being implicated in the murders. In the days after the killings Melvin Brothers denied using his brother’s credit card at Wal-Mart in Ohio until he was confronted with the fact that the investigators he was caught on tape making the purchase.
Defense attorney Michael Gardina calls Viola Robinson. She was in the bathroom when she learned the family had been killed. She lives next door off and on. Cherveta is her daughter. She is 20 now.
She heard someone say over and over “my babies are dead, my babies are dead.” She saw her brother Jasper Robinson standing at the door. He was calling her to come. Viola said she went inside through the back sliding patio door. She walked into a room and into a bedroom. She went in with her brother. After seeing the bodies she left out of the house. She did not see Jasper touch anything or move anything. She only went in that one time. She doesn’t think she gave a statement to police. Her shoes were photographed and her finger prints were taken. She did not hear shots that weekend.
Defense attorney Michael Gardina calls to the witness stand Elbert Robinson. He says his brother is Jasper. He lived next to the Harpers in 2003. He knows Jody, Joanie, that’s the only name he says he knew.
It was getting dark. He was on his car porch. He was there with his sister, nieces and brothers incuding Timothy and Jasper, probably Roy. His sister Viola was also there. He saw a red car pull up and three people got out in front of the Harper’s house. A man walked through the back gate. He was young, 27 or 30. Elbert says he is 49. He said it was unusual to see someone go into the side gate. He’s not sure where the other two people went, they went toward the front. He can’t remember the second man. The second man was younger than the first. The woman was tall her hair was straight to her shoulders and she had light skinned. The first man was black. The second man was black. The woman was black also. He had never seen any of these people before or since. Neither of the men were Vincent Brothers, Elbert said. He identified Brothers. Deputy District Attorney Lisa Green questions Elbert Robinson. Elbert Robinson said he discussed this with someone, possibly an officer, in the days after the killings. He is now saying it was Sunday. Did he say before it was Saturday? He seems sure it was Sunday. Did he tell the detective it was Saturday? Mosley did not interview him until 2006. The detective questioned him in 2003. Green shows Elbert a transcript of his interview with the detectivel
Defense attorney Michael Gardina questions pathologist Ophoven.
She said she testified for the prosecution in several states including New York, Hawaii and Florida. “Are you an acknowledged world expert in the death of children,” Gardina asks. “Yes,” Ophoven said. She has also testified for the prosecution in other countries. She testified for the prosecution in Australia against a woman who killed her children. Ophoven said her pay does not affect her opinions.
Prosecutor Lisa Green continues to question Pathologist Janice Ophoven.
Ophoven said she would not re-test information from the case. Green asks her why she did not try to test the vitrious fluid levels. “When you are paid $12,000 on a case are you not trying to be as careful as you can be,” “I pride myself in being as careful and cautious as I can.” She does not believe that Lyndsey was up and running after she had been shot. Ophoven believes Lyndsey was moved because there was blood on her foot and she was in an unusual position based on statements of first responder. Ophoven reviewed photos of Lyndsey’s feets and now believes it was discoloration, not blood. Ophoven doesn’t know where the blood spatter was found. Just that it was near him. “It is my opinion she could not be shot in the position she was found it,” Ophoven said. Ophoven said she is not an expert in blood spatter interpretation. She relied on the scene photographs to make her opinions about Joanie Harper. Ophoven did not rely on the blood flow to make her determination. She was shot in the head after she was shot in the arm. She clearly has moved after the bullets entered her arm. She noted there were 10 shots and 11 shell casings fired from the same guns, but Ophoven said she did not review the number of shell casings. She still thinks that Joanie Harper was shot four times. Ophoven said Joanie could have been awoken by the killer and lifted her hands to her neck and have been shot. She saw in the autopsy that Marques weighed 34 pounds and Lyndsey wore 33 pounds. Ophoven said Marques is within the normal limits. “Did Marques look emaciated to you,?” “He is a skinny little guy,” Rigor mortis can be delayed in people who have chronic diseases not in skinny kids. Can they be delayed in people with low body mass and body muscles. Rigor Mortis come on sooner in children. Sometimes it leaves sooner.
Deputy District Attorney Lisa Green continued to question a defense pathologist, Dr. Ophoven.
In the last four years she has done over 100 cases and only 10 of those have been for the prosecution. Ophoven does not know when the last meal was eaten. She did not review telephone calls. Does she think these indicators should be considered? Ophoven said sometimes they should be considered. Ophoven said she would not take into account other facts such as where the people were last seen. She believes this is up to the jury to consider. She said phone calls would not be considered in her forensic anaysis. Ophoven said she considers the scientific factors. She was hired early in 2006. Ophoven reviewed the autopsy photos and photos from the scenes. She looked at witness statements from Wandick and Robinson. She looked at the autopsy records. She incorrectly noted that Marques Harper was 5 years old. She also noted Lyndsey was 3 years old in the inventory. Ophoven said she did not rely on this inventory to render her opinion and it was created by her staff not her. Ophoven looked at Laskowski’s report. Ophoven said she does not consider such things as lights being left on, mail uncollected, and the like. She said this is not her scientific area. She believes this is in the perview of law enforcement. Ophoven said she does not believe the gastric contents could be useful in determining time of death. Green asks Ophoven if she knew gastric contents were available. Ophoven said she did not know if those were available. Green produces a letter she sent to Ophoven that said gastric contents were available. Another doctor, Dr. Hanks, reviewed the gastric contents and said she could identify potatoes and carrots. Ophoven said she did not notice that in the reports. “Would you consider than no one ever saw them alive after the Black Angus,?” “Yes,” “It’s my opinion that it is 24 hours or less,” Ophoven said. The bodies were found at 7 a.m. July 8, 2003. “It is my opinion is they were not dead on July 6,” Green challenges this time frame because she has estimated the outside as 36 hours. She said the 7 p.m. on July 6, 2003, time of death is not probable even though she gave 36 as the outside.
Depurty District Attorney Lisa Green questions pathologist Ophoven.
Dr. Dollinger believes the time of death was one to two hours after eating a large meal. Dollinger believed the death happened no later than Sunday evening. She says it is not a possibility the family died on Sunday. She did not review all of the 14,000 pages, but she did cull all of the paperwork that would be pertinent to determining time of death. Green asks if Ophoven knew what clothes the deceased were wearing. Green grilled Ophoven about how much money she bills for the case. Ophoven said she will bill $12,000 for all her work on the case. She said she typically does not charge to lecture. She put on a lecture for defense attorneys in Monterey. She said she did not get paid for that. She testified in Orange County in 1999 about a case as a defense case in People V. Robert Swanson. Ophoven said she does not remember that case. Green brings up several other cases in which Ophoven testified on behalf of the defense. Defense attorney Michael Gardina calls to the stand Janice Ophoven. She is a medical doctor in forensic pathology. Ophoven is specifically an expert in forensic pathology of children. She has testified as an expert witness over 200 times. Ophoven reviewed this case. She is experienced in determining the time of death. The prosecution believes the family was killed on Sunday July 6, 2003, in the afternoon after church and lunch. The timing is crucial to the prosecution’s case because the prosecutor must prove Brothers had enough time to drive from Bakersfield to Ohio late Monday July 7, 2003. Muscles start to go into rigor mortis almost immediately but it is not perceptible until later. You see this in the small muscles first and the large muscles later. This is an indicator of time of death. So is livermortis, or the sinking of the blood to the bottom of the body. Livermortis also begins immediately, but it is not immediately seen either. Algormortis is a term for body cooling. This is more reliable in accessing time of death than rigor mortis. The cooling rate will vary from person to person but it can be measured. She says she also looks for insects to determine the time of death. Absence of insect activity is also an indicator. Body temperatures were not taken and there was no insect activity in this case. The time of death can also be learned by analyzing the fluid in the eye ball. Patassium levels will go up as the body deteriorates. This was not done in this case. Marques was found with his eyes open. There is no description of drying or clouding or deterioration of the surface of the eyes. This was not observed by the first responders. She relied on the firemen who noted the cold bodies and the rigor mortis noticed in Marques and Lyndsey. She also took into account information about temperatures, post mortem description, statements of observers of the position of the bodies. She also relied on the autopsy reports. Marques suffered a gunshot wound to the head at an intermediate distance. There was bloodspatter showing he was shot in the area. She believes he had been dead between 24 and 36 hours. Lyndsey Harper suffered a gunshot wound to the torso of her body. There was close contact with the gun. She may not have been immediately incapacitated. She was deceased between less than 24 or a maximum of 36 hours. Warmth will accellerate rigor mortis. “It is my opinion it is a shorter timeline rather than a longer timeline in the range that is possible.” As to Joanie Harper, she was seen with rigor mortis when she was first found meaning she was killed 24 to 36 hours, but believes it was probably longer rather than shorter. The shots to the arm were not immediately lethal and the one gunshot wound that penetrated her arm and into her neck and chest is a defensive wound. The other gunshot wound could have been a defensive wounds. She also suffered sharp force injuries to the back side of her body that appeared peri mortem or post mortem and they would not have been lethal. There is a gunshot wound to the wrist she believes is a defensive wound. It is a pattern of injury that is a result of someone trying to protect themselves. When there is an extremity placed in front of an individual to protect against a weapon. That would explain why the bullet passed through the arm and into her neck them into her chest. Because of the trajectory of the bullet, why did it land where it did? The explanation is her arm was in front of her neck. There was an intermediate stippling of the area where the bullet passed which is consistent with not close but not real far. The stippling happened ont he outside of the arm. The bullet on the back side of the arm may also be a defensive wound, Ophoven said. A bullet hole used in an extremity can be used to protect. The wound by the wrist is obviously a defensive wound and the second wound may be a defensive wound.
Defense attorney Michael Gardina calls to the stand another Bakersfield Police Detective. Deputy District Attorney Lisa Green asks to discuss something outside the present of the jury. The jurors are excused.
Green believes this officer will discuss inconsistencies of Kelsey Spann’s testimony and there are no inconsistencies. Gardina said he made a mistake and does not need this witness. Gardina says he has no more witnesses. The judge releases the jury.
Defense attorney Michael Gardina calls to the witness stand Detective Charles Church. He is with the Bakersfield Police Department.
On July 10, 2003, he went to the China Buffet in Ohio. He was aware that Brothers had a credit card purchase there. The defense has previously asked for a mistrial because the receipt was destroyed with a chemical used to lift finger prints. The defense believes the signature on the receipt could help place Brothers in Ohio around the time of the killings. Church said the receipt was in good shape when he seized it with the signature visible. He compared the signature on the receipt to Brothers’ writing and believed they were similar. He also went to a gas station in Ohio where another purchase was used with Brothers’ credit card on July 8, 2003. He made a transaction at an ATM machine, Church said.
Defense attorney Michael Gardina calls to the witness stand Detective Matthew Hilliard. He is with the Bakersfield Police Department.
On July 8, 2003, he spoke with Jasper Robinson. Robinson came forward with a story that he saw Brothers behind the Harper house on the day of the killings several months after the killings when he was in jail. Robinson told Hilliard he heard someone screaming, went into the Harper house, saw dead bodies, exited, went back in and left again. Robinson said he saw three bodies on the floor, Hilliard said. Robinson did not say he saw anything suspicous around the house. Particularly, he did not say he saw Vincent Brothers running a hose in the back of the house as he would later claim, Hilliard said. Deputy District Attorney Lisa Green asks Hilliard if this was a brief interview. He says it was. Hilliard did not ask him if he heard anything on previous days to the day when they were found dead.
Defense attorney Michael Gardina calls to the witness stand criminalist Greg Laskowski.
He did shoe print comparisons on this case from the Harper house. The prints were taken from the front entry way at the door off P Street and from the kitchen, 10 in all. He compared these to the personnel at the crime scene and to the shoes of the defendant. There were some similarities between shoe tracks that belong to a neighbor who walked in just after the family members were found killed. He also noted similarities with some of the personnel, meaning he cannot include them or exclude them. He eliminate all of Brothers’ shoes from having caused the dust prints of shoes.
Deputy District Attorney Lisa Green asks Thearl if she told Vincent Brothers not to talk to police.
The jurors are excused at the request of the defense. The defense does not want the jurors to know Brothers declined to speak to police because as a suspect that was his right. The judge said this issue will not be raised. The defense asks for a mistrial. Green said the defense opened the door by asking about taking Brothers to the police station. She believes she should be allowed to follow up on that area. Green also said that she was discussing Bernard’s actions, not Brothers. The judge asks Green if it implies Brothers did not talk to the police. Green said she does not know what it implies. The judge said Bernard had a bias and it is alright for Green to explore that bias. But the judge said he would instruct the jury that they can only consider it for the bias of Bernard and not in regard to Vincent Brothers.
Defense attorney Michael Gardina calls to the stand Vincent Brothers’ sister Thearl Bernard. She lives in New York.
Her mother visited her in New York on the week of July 4 in 2003. She traveled to North Carolina with her mother on a Thursday July 3, 2003. They arrived in the evening and they were there for a week. She is a second grade teacher. On Saturday they visited with mother’s friends. On Sunday they went to church. On Monday they went to Raleigh North Carolina, returning between 6 p.m. and 8 p.m. She testified at a grand jury hearing, but was not given any documents to help refresh her memory. She incorrectly said during the grand jury testimony that she traveled on Friday. She said she actually traveled on Thursday. On Tuesday Shann Kern called her mother and her mother gasped during that call and her mother was upset. She got the phone and spoke with Shann and Shann told her about the deaths. Shann Kern said she was in touch with a detective and a detective would call us back. She said she and her mother were devestated. Vincent Brothers wipes away tears at this. Her children got their clothing dirty so they decided to go to the laundry mat and figure out what to do as Brothers was driving to North Carolina. They discussed how to tell Vincent Brothers. They were concerned that Vincent Brothers was on the road and her mother wanted to break the news to him. They made plans to meet him on the outskirts of Elizabeth City. They met Vincent at a gas station. Her emotional state was fearful. She hugged Brothers and her mother told her of the deaths. Vincent Brothers was visibly shaken and had to be held. She said she was holding Melvin, Vincent’s brother. They told Vincent that police were looking for him and Vincent said they should go to the police station. She started making decisions for Vincent Brothers because he was so shaken up. She asked the Elizabeth City Police Department to tell them what to do to contact the police.
An FBI analyst testified she found a caucasian headhair on two items found in the bedroom where four of the five family members were found killed. Both had a root. One of the hairs appeared treated by a hair dye or rinse.
She also compared fibers from Brothers’ truck and compared them to the rental car and found no interchange of items. Deputy District Attorney Lisa Green question Korsberg. She said it is fairly rare for fibers to transfer and to be found. No fibers were found to connect the crime scene and Brothers' rental car.
Defense attorney Michael Gardina calls to the witness stand Karen Korsberg. She is a trace evidence examiner with the FBI in Quantico Virginia.
She reviewed evidence to review from the crime lab in Kern County. She said that finding hairs and fibers from him in the house would not necessarily be meaningful because he lived in the house, so she focused on vacuum sweepings from the Dodge Neon Brothers rented while in Ohio, which the prosecution believes Brothers used to drive back to California to kill his family. Korsberg reviewed a floor mat from the car, vacuum sweepings from throughout the car, and fabric samples from the car. She also had samples from the house where the bodies were found. There were also a number of items of clothing and bedding. She found nothing linking the crime scene to the rental car.
The jury was recessed early because Deputy District Attorney Lisa Green said she has not received evidence that the defense is trying to elicit from Vincent Brothers’ mother Margaret.
Gardina wants to introduce evidence that Melvin Brothers is timid and shy and he was shot in the head during the 1990s. Green accuses Michael Gardina of lying that he turned that information over and now is saying that he just talked to Margaret Brothers last night. “They want to make Melvin Brothers look pathetic,” Green said. Gardina said he interpreted the court to ask if he personally discovered the evidence, not if he gave the information to Green and said he does not think information on impeachment of witnesses does not have to be turned over to the prosecution. The judge said he will give Gardina the benefit of the doubt, but will not allow the evidence.
The jury is excused to discuss an issue of Brothers’ mother’s testimony.
Green wants to ask Margaret Brothers if Vincent Brothers had the opportunity to call the Bakersfield Police Department but did not. The defense believes Brothers had the right to remain silent because he was a suspect in a murder. Defense attorney Michael Gardina said Brothers was trying to find a lawyer. “The prosecution sleezed this in front of the jury and this is prosecutorial misconduct,” Gardina said. “The prosecution is trying to shift the burden to the defendant to do something he had no obligation to do. The fact that he did not call the Bakersfield Police Department is irrelevant.” “99 out of 100 people who hear that their entire family has been wiped out would not act as Brothers acted,” Green said. “I am trying to show the jury that he did not act like a reasonable person would behave.” “He did make a call and he called Kenneth Hair and that is going to come out through Theral Bernard,” Green said. Hair is a friend. Bernard is Brothers’ sister. Green said this shows a consciousness of guilt because he did not call police. Michael Gardina asks for a mistrial. Kern County Superior Court Judge Michael Bush rules it is fair to put on evidence that the defendant did not call the police department and it is a reasonable interpretation that a person would call the police when hearing their family was killed.
Kern County District Attorney Lisa Green questions Vincent Brothers’ mother Margaret Brothers. Green questions Margaret about dates she had confused. Yesterday she testified that she traveled from New York to her home in Elizabeth City North Carolina on July 4, 2003, but records show that she was making a phone call to Vincent Brothers’ brothers house in Ohio.
Shann Kern called Margaret Brothers and told her the family had been killed. After she was told she went and did the laundry. She did not call the Bakersfield Police Department to see if that was true. She also did not tell Vincent. “What possibly could the reason be that you would not call the police department upon learning that your grandchildren had been murdered,” Green asks. The judge tells her that is argumentative. Maybe an hour later her sister called and told her that the family was killed. She did nothing to ascertain if what Shann Kern said was true? Shann called me after talking with a Bakersfield Detective. “What was there for me to do?” Margaret Brothers said. She believed Shann Kern was telling the truth. Does it seem reasonable to call the police and offer them assistance in finding your son? No, she didn’t. She said she spoke to Vincent at 10 p.m. on Monday July 2, 2003. She denies speaking to Melvin on Monday July 7, 2003. Melvin testified that his mother called his house and Vincent was not there that weekend.
Defense attorney Michael Gardina calls to the witness stand Margaret Brothers’, Vincent Brothers mother.
Vincent Brothers cries and wipes away tears. She has been living in Elizabeth city for 11 years. She has 10 children. She saw on the television about the killings. She talked to Vincent on Monday at about 10 p.m. She talked to him on Friday too, on July 4, 2003. She was leaving Long Island for North Carolina. She made plans on July 8, 2003, to meet him. She talked about him coming to visit in North Carolina so he could be there on Wednesday. She called Melvin Brothers’ Jr., who lives in Ohio, to talk to Vincent Brothers. She called Vincent Brothers on Monday. She talked to Vincent on Tuesday morning between 8 and 9 eastern time. He said he was coming to Elizabeth City, North Carolina. He was going to arrive some time that night. She received a call from her sister asking if she had seen the television. She discovered Vincent Brothers was on the television and went to her sister’s house to watch television. She called her daughter in law Tammy Brothers, Melvin’s wife. She called Tammy, but she doesn’t know at what time. She told Tammy not to tell Melvin because they were on their way to Elizabeth City. She didn’t want Melvin to tell Vincent on the road. Margaret made a lot of phone calls to them in the car from her daughter’s cellular telephone. She wanted them to drive without knowing anything. Margaret told him to meet him at a gas station. She told them as an excuse that she was afraid they were going to get lost. Melvin met her at the gas station. She doesn’t remember who was driving or what time it was. She broke the news to Vincent. They asked him what he wanted to do and they decided to go to the Elizabeth City Police Department. He doesn’t remember if Vincent drove with her or his sister. Theral Bernard, Vincent Brothers, Maragaret Brothers went into the police station. Melvin Brothers stayed out in the car. She doesn’t remember who called who on Friday July 4, 2003. Margaret Brothers said she stayed at the police station all night that night.
Defense attorney Michael Gardina calls to the stand Annie Lamb. She lives in Elizabeth City, North Carolina. Margaret Brothers is her sister. Margaret is Vincent Brothers’ mother. Vincent Brothers is Lamb’s nephew.
In July 2003, her sister called from New York to tell her Brothers was on television. She saw him on July 10, 2003. Vincent Brothers came to her house and “he was crying, he was really upset,” Lamb said. Brothers spent the night at her house. He arrived between 11 a.m. and 12 p.m. He left on Friday at 12. “We were trying to comfort him so he could get some rest,” Lamb said. He wouldn’t eat or drink. He was upset on and off the entire time she saw him. On Friday July 11, 2003, “he had calmed down some.” Deputy District Attorney Lisa Green said she has no questions.
Defense attorney Michael Gardina calls to the stand homicide Sgt. Don Krueger. On July 8, 2003, the same day Brothers’ family was found killed, Krueger seized a video of Vincent Brothers at airport bus where he bought a ticket for a ride to LAX. He is seen with a case on his right arm. He said he injured his arm in a bicycle crash.
He remembers that Joanie Harper and she and Brothers’ children had rights to be in his apartment which he rented after moving out of the house he was living at with Joanie Harper, their children and her mother. Deputy District Attorney Lisa Green questions Krueger. He says he never told another detective that Brothers had a cast on his arm in the video.
Defense attorney Michael Gardina calls to the witness stand Roy McPherson. He lives in Elizabeth City North Carolina. He works for the Department of the Navy. He is also a pastor of a church. He is an associate minister with Margaret Brothers, Vincent’s mother. She too lives in Elizabeth City.
On July 8, 2003, Margaret Brothers asked McPherson to come and pray with her and her daughter. He did that at about 8 p.m. at a gas station. He arrived at about 8:30 p.m. Margaret Brothers told McPherson in a van about the killings. They prayed and talked until Vincent arrived at 9:15 or 9:30 p.m. He arrived with Melvin Brothers. McPherson shook their hands. Brothers’ sister told him what happened. “That’s when he broke down and he gave loose at the knees, buckled, and started weeping,” McPherson said. Someone told him he needed to turn himself in to police and he agreed. “His knees gave loose...his mother and his sister were on both sides of him holding him up,” McPherson said. About 15 minutes later Vincent and his sister and brother left for the police station. Deputy District Attorney Lisa Green said she has no questions.
Defense attorney Michael Gardina calls to the witness stand crime scene technician Jeff Cecil.
He went to Vincent Brothers’ apartment after his family was found killed. He was asked to get a head hair sample from Brothers and he searched the apartment and seized items as directed by the detectives. Cecil also took photographs of Brothers to document his appearance. Cecil is shown pictures of shoes, but he did not seize those shoes. Photos of the tops of Brothers’ hands were taken on July 24, 2003. Another photograph was taken of Brothers’ face. He was also photographed in his underwear. He has a large tattoo on his right shoulder. The defense would like to show that Brothers has no injuries. Cecil said he did not see any injuries.
Defense attorney Michael Gardina planned to present a witness to testify about telephone records, but the prosecution said this witness did not have the expertise to discuss this and the judge agreed.
Gardina planned to present several witnesses this afternoon from North Carolina, but the flight was delayed. Gardina said he also planned to bring back two prosecution witnesses including a crime scene technician and one of the lead detectives on the case, but they are not here yet. The trial will be delayed until one of these witnesses arrives.
Defense attorney Michael Gardina calls to the witness stand Debra Erickson. She works for airlines reporting corporation. She determines the risk of travel agents. It is a settlement agency between travel agents and the airlines.
She has records that Vincent Brothers’ purchased airline tickets in April and July 2003. A ticket was purchased for Brothers on March for April 11, 2003, trip, from Los Angeles to Pittsburg and from Pittsburg to Columbus on April 12, 2003. The passenger returned on April 20, 2003. On June 25, 2003, a ticket was purchased for July 2, 2003, through Chicago with a return date of July 13, 2003.
DA Investigator Hodgson also reviewed Brothers’ calls from April 2003 when he previously visited Ohio.
April 12 to April 21 there are records of Brothers’ calls. Saturday April 12 the records reflect what phone calls? On the billing records, two calls are listed. At 10:17 there is an incoming call. At 3:56 p.m. there is an incoming call for one minute. There was a call to Joanie Harper’s phone and then to the Harper landline. There was a call that picked up a signal from Pittsburg. On April 13th there is a call at 6:33 p.m.to Joanie Harper’s cell phone lasting two minutes. He can’t tell if it was picked up. On April 14th there are no records. On April 15th there is a record from Brothers’ cell phone. This code was not made from the California area. On April 16 Wednesday there is a call at 2:23 p.m. to Joanie’s cell phone that does not indicate if the call was completed. It charged for one minute. Records show phone was not in California around these dates. “If Brothers were making a withdrawl in Bakersfield on April 16..would this person have the phone with them?” The judge finds this improper. The records show the telephone was not in California on April 16.
An investigator said these calls were calls made to or from Brothers' cell phone.
Call No. 6 on Brothers’ call phone: voice mail. Call No. 7 from Margaret Brothers to Vincent Brothers. That call was answered. He doesn’t know who called only what telephone was used. The same for whoever answered. Call No. 8 from Carla Tafoya to Brothers’ cell phone. No message was left. Call No. 9 from Brothers’ to Joanies’ cell phone. The call lasted just over 4 minutes. This could have been a 4 minute message or a conversation. No activity on July 5. Call no. 10 the phone was powered at at 10:41 a.m. on July 6, 2003, so the message could be sent to the phone for voice mail. Call No. 11 was a phone call from the cell phone to Charles Pilley’s home phone. Call no. 12 was 29 second call to Earnestine’s landline. Call No. 13 another notice of voice mail was sent to the home landline to Earnestine Harper. It was not charged to Vincent Brothers’ phone. There were no calls to Brothers’ cell phone. Defense attorney Michael Gardina continues to question DA investigator Tam Hodgson about Brothers’ phone records. Telephone call #14 This call was placed to Joanie Harper’s cell phone on July 8, 2003, at 02:48 hours or 2:46 a.m. 11:46 p.m. July 7, PST from the home phone of Melvin Brothers in Columbus Ohio. This call lasted 21 seconds and it does not show it was answered. Hodgson also analyzed the telephone records of Melvin Brothers’ home phone. Call #17 a call was placed July 8, 2003, 2:47 a.m. from Brothers’ cell phone to voice mail retreival number. This lasted a minute or less. Call #18 from Melvin’s phone at 9:30 EDT on July 8, 2003, to Earnestine Harper’s home phone in Bakersfield. The length of the call was 19 seconds. Hodgson said he reviewed about a dozen phone records. He also reviewed Margaret Brothers, his mother, and Melvin Brothers, his brother and Joanie Harper’s cellular telephone. He also reviewed Charles Pilley and Carla Tafoya and Earnestine Harper’s landline. Deputy District Attorney Lisa Green questions Hodgson. The last outgoing call from 901 Third Street on Earnestine Harper’s landline was on July 5, 2003 at 6:30 p.m. for just over one minute. As to the phone records of July 6, 2003, there were three calls to the residence. The first call at 10:46 a.m. there was a call from Brothers’ cellular telephone. The call was not answered. Hodgson said he can’t tell who made any of the calls made from Brothers’ cellular telephone. The second call to Earnestine Harpers at 10:11 p.m. on the night of July 6, 2003, from a local cellular telephone and that phone is re-routed to voice mail. She said there was one other activity, call #14, an “unusual call record to have.” He says this shows that someone took the phone off the hook at 4:05 p.m. He said a 911 call would not be in the records. On Monday July 7, 2003, there were no outgoing calls, Hodgson said. There were calls to the residence.
The investigator pulled records from July 2, 2003, to July 7, 2003. The first day is the day Brothers flew from Bakersfield to Ohio.
Brothers called his brother in Ohio at 9:14 p.m. on July 1, 2003. The call was generated from Bakersfield. On July 1, 2003, 22:30 pacific daylight time, originating from Melvin Brothers’ home phone to Vincent Brothers’ phone. There was no record of that call on Brothers’ telephone so it must have gone to voice mail. A third call was generaged 21:13 or 9:13 p.m. EDT or 6:13 p.m. PDT. The call was placed to Joanie Harper’s cellular telephone on July 2, 2003. It was placed from AT and T wireless system in Columbus Ohio. A fourth call 21:14 EDT on July 2, 2003, from Brothers’ phone to the landline of Earnestine and Joanie Harper. The call was generated in Columbus Ohio as well. On July 3, 2003, at 23:44, 11:44 PDT from the hoome phone of Carla Tafoya to Vincent Brothers’ cellular telephone. It went to voice mail of Vincent Brothers. This call registered off the Indianapolis, Indiana switch. 12:01 July 4 PDT from Brothers’ phone to his voice mail phone number in Fullerton California. This notified Brothers that he had a stored voice mail message. July 4, 2003, EDT from Indianapolis. In Ohio this is 9:43 hours EDT. This is a call to Brothers’ cellular telephone, which was from Margaret Brothers to Vincent Brothers and it was answered. The cellular phone was near Columbus, Ohio. The call lasted 177 seconds. July 4, 2003, 12:40 PDT telephone in Ohio, this call went to voice mail. There is no way to know if there was a call placed or if this was a message to locate the phone. A call from Brothers cell phone on July 4, 2003 at 16:30 EDT made to Joanie Harper’s cellular telephone at 13:29 PDT or 4:30 in the afternoon in Columbus, Ohio. This call lasted just over 4 minutes. This is likely a completed phone call because of the length. The tenth call is a “short message service.” This appears to be another notification that Brothers has voice mail. This was an incoming message that occurred from Indianapolis call at 1:41 p.m. July 6, 2003. The eleventh call is a call from Brothers’ cellular telephone on July 6, 2003, at 13:41 EDT or 10:41 PDT to Bakersfield phone of Charles Pilley. It was a 9 second non-answered disconnect call. He guesses that is one or two rings because the call is so short. Someone pressed the end button on the hand set. Twelth call was a message to Brothers that he had message. Thirteenth call from Brothers phone on July 6, 2003, at 13:45 EDT, 10:45 a.m. Bakersfield from Brothers’ phone to Earnestine and Joanie Harper’s home telephone number. Brothers’ phone is still in Ohio. The call was not answered after 29 seconds. Fourteenth call 16:05 hours, 4:05 PDT on July 6, 2003, from Earnestine Harper’s phone to Vincent Brothers’ cellular telephone. “This is an unusual phone record to have,” This is from Brothers’ telephone at 2:40 a.m. EDT in Columbus on July 8, 2003, shortly after midnight. 11:40 p.m. on July 7, 2003, Bakersfield time on the AT and T wireless network on Columbus Ohio. It could be 10-59 seconds.
Defense attorney Michael Gardina calls to the witness stand Bakersfield Police Detective David Jordan. He responded to the Harper house. He seized a piece of clothing or pieces of clothing from the house on July 11, 2003.
He also notice in the kitchen toast and wet cereal and take-out cups and tin foil with meat in it. The cups had the name Stuart Anderson, Black Angus, on them. He also got Brothers’ flight schedule. On July 12, 2003, he sent out a nation wide teletype to find Brothers’ Dodge Neon which he rented in Ohio.
Deputy District Attorney Lisa Green continues questioning of coroner’s investigator Kenneth Noack, who challenged her time of death.
Green points out that Noack did not mention where Earnestine Harper’s pantyhose were positioned when she was found. He assumes they were up. He assumes the pantyhose were on all the way. Other people at the scene testified the pantyhouse were around her knees. He said in a previous interview that he would not allow witness statements, such as when they were last seen alive or what they were wearing, influence him. Rigor mortis left the adults before the children in this case, but in general children leave rigor mortis faster than adults, Noack said. He also noted no purging from Marshall Harper. He sees a photo with Lyndsey purging from her mouth, but he acknowledges that he did not note it. He explains this is common after several hours and does not think it would factor in to time of death. Noack said he looked under Lyndsey’s dress for elements of decomposition, but he did not look under Earnestine Harper’s dress. Noack said he checked under Lyndsey’s dress because it was loose and couldn’t on Earnestine Harper because her dress was tight. He did not note discoloration of Lyndsey Harper’s feet in his report. Noack also did not take the temperature of the house where the family was found dead. Noack did not take fluid from the eye ball to determine time of death. Noack did not consider “scene markers” to help determine time of death such as uncollected mail or newspapers, dishes left in the sink, etc. He also did not note that a fan was on in the room, which Green said was cooling Marques Harper. The temperature in the room is important because heat hastens decomposition. Noack said a small fan would likely have no bearing, but a large fan would. Green says Noack has admitted to numerous omissions and inacuracies in his report. He said these do not affect his opinion on time of death.
Coroner's investigator Kenneth Noack said he believed Vincent Brothers' family had been killed 24 hours plus or minus a few hours before he arrived. This challenges the prosecutor's timeline, which put the time of death two days before their discovery.
Deputy District Attorney Lisa Green questions coroner’s investigator Noack. Noack acknowledges that time of death is complicated. Green points out that Noack does not have as much medical training as a pathologist. A pathologist previously testified that rigor mortis ends at 24 to 36 hours after death with heat hastening decomposition. Green shows Noack a job description of a coroner’s investigator and he acknowledges that determine time of death is not listed as a duty. Noack said he was directed by his supervisor not to put in his opinion on the time of death. Noack did not consider such factors as gastric contents and body temperature and the person's activities. He said their clothing would have been a factor to consider.
Defense attorney Michael Gardina calls to the witness stand Kenneth Noack. He is a coroner’s investigator with the Kern County Sheriff’s Department.
He worked as a pathologist assistant since 1977. He has with with the coroner’s department in Kern County since the early 1980s. He has assisted with more than 6,000 autopsies. He received an associate of science degree in the 1970s. He has also had further training. He looks at lividity, or settling of the blood, rigor mortis, or stiffening of the body and the decomposition of the body to determine time of death. Noack examined Joanie Harper and her three children on the day they were found killed. He found Lyndsey and Marques Harper had rigor mortis. He noticed rigidity in her arm and with some pressure he was able to move her arm and break the rigor mortis. Noack said rigor mortis should be gone after 36 hours after death, but it could last longer. He said heat hastened the process of decomposition. Noack said it was uncomfortably hot in July when the bodies were found. Noack estimated the time of death at about 24 hours, plus or minus a few hours. He said that children will go out of rigor mortis quicker than adults and head will speed up the process of rigor mortis, Noack said. Marshall had no rigor mortis. Marques had rigor mortis in upper extremeties and lividity.
Defense attorney Michael Gardina calls to the witness stand Mark Maxwell. He is an engineer for the Bakersfield City Fire Department. He was one of the first people who found the Harper family dead on July 8, 2003.
He noticed the child was laying in an “unnatural position” on the bed, not as if she were sleeping. “Not one one would normally lay in,” Maxwell said. He also noticed the female had an injury on her right arm. Deputy District Attorney Lisa Green questions Maxwell. She shows him a photo of Lyndsey Harper. He notes Lyndsey is not laying with her head toward the head of the bed and it does not look like a natural position someone would fall asleep in. Green asks if that looks like she was sleeping on her side. Maxwell said he has a daughter himself. Maxwell now says that the child could sleep in that position.
Defense attorney Michael Gardina calls to the stand Bakersfield City Fire Fighter and Engineer Scott Smith. He was one of the first people to find the Harper family dead. He touched the young girl’s leg and noticed rigor mortis. He touched the family and noticed they were cold. Smith does not remember if Joanie Harper was stiff. He looks at his notes and recalls Joanie Harper was stiff.
Smith also noticed what he believed was blood on the bottom of Lyndsey Harper’s feet. The prosecution believes this discolloration on the foot was actually decomposition. If the discolloration were blood, it could call into question the prosecutions theory that Lyndsey was asleep when she was killed. Deputy District Attorney Lisa Green questions Smith. Smith said he did not do a report until he was questioned three days after the bodies were discovered. Smith said he does not have the training to identify advanced stages of decomposition. He also said the girl was wearing a purple and red dress. She was actually wearing a blue plaid dress.
Defense attorney Michael Gardina calls to the stand Bakrsfield Fire Captain Trever Martinusen.
He was one of the first people at the house where the Harpers were found dead. The fire captain entered into the house from the sliding glass door in the back of the house. He thought the family may have asphyxiated so he went and opened the front door. The fire captain had to pull open a bar that secured the front door. The fire captain went into the back room and saw Joanie Harper, Marques Harper and Lyndsey Harper dead on the bed. Either he or a crew member noted rigor mortis, or a stiffening of the body. The bodies were also cold. The defense would like to question the prosecution’s timeline. Rigor mortis goes away after 24 to 36 hours after death, a pathologist testified. But the prosecution believes the family was killed two days before the family was found. The fire captain did not check Joanie Harper for rigor mortis. Deputy District Attorney Lisa Green questions the fire captain. Green shows the witness a metal bar that she believes secured the front door. THe fire captain said he believes that is the bar that secured the door. The fire captain said he touched both small children, noticing they were cold and rigor mortis set in. He said he has been trained to identify rigor mortis.
Monday is the first day that the defense in the Vincent Brothers case is calling witnesses.
Deputy District Attorney Lisa Green said she wanted to settle a couple of issues and rest her case before the Brothers defense begins calling witnesses. In dispute is the number of trips a witness visited Brothers in jail. The prosecution believes that a woman who Brothers had a sexual relationship with visited Brothers more than 75 times after he was arrested on charges of murder for the death of his family. The defense believes there are not quite that many visits. The prosecution wants to show this woman may be biased in favor of Brothers. Defense attorney Anthony Bryan said he does not want to make a stipulation, or agree that the prosecution’s number is right. Green said if there is no stipulation, she wants to submit the records. But the defense does not want this to be allowed because the record also shows visits from other people. The judge said the other visits would have to be redacted and Green said she will stipulate to the lower figure. The prosecution would also like the judge to tell the jury that a person can serve half their prison sentence if they receive credit for working and for good behavior. Green wants to help the credibility of a witness who came forward with a story that he saw Brothers in the backyard of the Harper house after he was in jail on charges of petty theft. The witness later was sentenced to prison and the prosecution would like to prove that the witness was not given a deal on that prison sentence. The defense does not want the judge to say specifically that this witness received that credit for working and good behavior because there is no proof he had. The judge agrees to take out the witness’ name. The stipulations are read to the jurors and the prosecution rests its case.
Deputy District Attorney Lisa Green calls to the stand John Van Rensselaer. He is a supervisor at the coroner’s office. He is coroner investigator Kenneth Noack’s boss.
He says the primary job of an investigator is to investigate unusual deaths, possibly criminal deaths. They prepare a preliminary coroner report given to the doctor prior to autopsy. The report gives the circumstances at the scene of the death, but does not necessarily give the manner of death. It’s not a normal function of a coroner’s investigator to determine time of death. In the case of a traffic fatality, we would use the date and time of the accident as the date and time of death. If the person were taken to the hospital we would use the time the person was pronounced death. In the case of a witnessed death, we would use the time the person seen dead, Van Rensselaer said. If the time of death is under question, the coroner’s investigator would not be asked to determine time of death such as when a body is dumped, Van Rensselaer said. The investigator would want to document the last time the person was alive. It would be inappropriate to put an opinion on the date and time of death, Van Rensselaer said. The doctors also do not determine time of death, even though they may render an opinion on it. He says a coroner’s investigator should not be rendering opinions on the time of death. Van Rensselaer said Noack has overstepped the bounds of his expertise and rendered opinions in his reports on more than one occassion. He has had conversations with Noack about specific statements in his reports regarding that. Van Rensselaer is excused. Defense attorney Michael Gardina argues that Kenneth Noack does have the background to render an opinion. He points out that the pathologist’s opinion as to time of death does not differ. She said rigor mortis is gone in 24 to 36 hours after death. Deputy District Attorney Lisa Green says Noack will never have the experience to testify about time of death unless he goes to medical school. He was not familiar with all the factors that are considered by the pathologist. Green says Gardina has a pathologist who can render her opinions, but Noack does not have the expertise. Kern County Superior Court Judge Michael Bush said that given Noack’s background, he is qualified to render an opinion and will be allowed to testify.
The prosecution wants to question a coroner’s investigator to determine if he has the expertise to determine time of death.
Coroner investigator Kenneth Noach said in a report that the bodies had rigor mortis when he saw them on July 8, 2003, when the bodies were found. If the bodies were in the last stages of rigor mortis, that would challenge the prosecution’s time frame because a pathologist testified that rigor mortis, or stiffening of a dead body, goes away after 24 to 36 hours. The prosecutor doesn’t want Noach to testify about time of death because he does not have the expertise to determine this. Kern County Superior Court Judge Michael Bush ordered a hearing outside the presence of the jury to determine if Noach has the expertise to testify on this issue. Noach testified that he has numerous classes and training to become a coroner’s investigator. He was trained with the Orange County coroner. He has attended over 100 trainings. He 21 years he has been to about 3,000 crime scenes. About 5 percent of those were homicides, meaning a couple hundred. He has had specialized training to determine time of death. Noach explains what rigor mortis is and how long it remains. He was a physicians assistant in pathology. He has also assisted in 6,000 autopsies. When he arrives at the scene, he is asked to determine time of death using lividity, the settline of blood, and rigor mortis. Deputy District Attorney Lisa Green questions Noach if time of death is his duty. He said it is. He said it is a critical part of his job. He initially said the time of death was estimated at 24 plus or minus a few hours. He was directed to take time of death out of his report. He said this is one of the few times he was ever asked to take out time of death from his report. Green challenges Noach calling himself a physician’s assistant. He says that when he was a physician’s assistant, the educational requirements were different. Green believes a physician’s assistant is the same as a coroner’s assistant, but he said there is a different. Noach agrees with Green that time of death is a complicated issue in this case. He said he is not going to let eye-witnesses change his opinion on time of death. He said he did not attend the autopsy of the Harpers. “Wouldn’t you agree the pathologist is in the best position to determine the time of death,” Green asks. He said they certainly have the training. “I was at the scene, Dr. Dollinger was not at the scene,” Noach said. Fixed rigor mortis was easily broken on Lyndsey and Marques, Noach noted in his account. He has been to 3,000 scenes where he has had to determine time of death. He has been to the scene of about 150 homicide cases. How many has decomposition been an issue? Possibly 50. Of those 50 cases where you expressed an initial opinion, how many times have you been asked to withdraw your opinion on time of death? This is the only time. How many times have these opinions been reflected in the final report? He said he cannot remember. He does not know. He has been asked to take information on other topics out of the reports, he said. He said that details have been removed at times because they are too descriptive. Are you aware of how post mortem changes are different in a child? He said that rigor mortis disappears more quickly in children. Noach said the heat has a lot of effect on post mortem changes. He also considered humidity. He said the last time the person was seen alice would be something he searched for. Joanie Harper was in a more advanced state of decomposition. The children were in the early, early stages of decomposition, Noach said. He noted some skin discoloration to her chest and abdomen. He does not recall seeing changes on her feet. The prosecution believes there was some decomposition on her feet, based on the pathologist’s testimony. Rigor had passed with Joanie Harper, Earnestine Harper and Marshall. Why had the rigor mortis passed with them and not the other two. He also noted the heat in the room. He said that adults have more bacteria and the children have less, which causes rigor mortis. The rigor is hastened by heat. He did not examine Earnestine Harper completely, only her hands and her face. But he did notice a smell. He did not indicate odor in the report. He did not take the body temperature of the victims. He said you would not want to do that. He did not note that Lyndsey Harper was purging from her mouth. Green questions Noach if he used stomach contents to determine time of death. He said he did not attend the autopsy. He said he did not seek out any other information from the other reports regarding time of death. Green points out all of the elements of determining cause of death he did not rely upon including stomach contents. Noach said he did not consider things such as mail left un collected to determine the time of death. Noach said the clothes the people were wearing are important to determine the time of death. Does this change his time of death? He said it does not think so because he is looking at the changes to the body which are far more important.
Defense attorney Michael Gardina questions FBI agent Mark Safarik.
Gardina points out the many degrees that Safarik doesn’t have and areas where he is not an expert including DNA analysis. Safarik says he believes Joanie Harper was not moved during or after the assault. If the offender didn’t a key you would have to believe this woman who was obsessed with security would have left the sliding glass door unlocked, the wrought iron door unlocked and the dowel out of the sliding glass door track. Could the offender put the chair under the door? That wouldn’t make any sense at all. Safarik went to see the layout of the house, but he did not look to see if it was secured. He had no reports that a screen was ripped and the bolts loosened one of the bars over the window. Was Joanie the biggest threat if Earnestine had a gun? If the person who killed the family knew the family why would he not go after Earnestine first? Safarik said no one knew Earnestine had the gun. If you weren’t aware of the gun, Earnestine Harper was overweight and may have limited mobility? Safarik asked himself. Could the television have been abandoned because it was heavy and awkward? No. Safarik said he didn’t know that four people went into the house before law enforcement arrived. Safarik said the effect depends on what people did. Safarik said he did not enquire into Earnestine Harper’s civil rights activities. Safarik inspected the house in January 2007. He was not provided with reports that neighbors heard gunshots. He enquired about crime demographics. Family anihilation is unusual, but if you have an area where there are a lot of homicides that might be important, Safarik said. Bakersfield Police said this house sits between two crime statistic zones. He said there were few homicides in this are and that violent crime was relatively low although property crime was moderate, Safarik said. Earnestine and Lyndsey were not covered with anything, Safarik said. The agent said you cannot see Marques’ face from certain angles.
Deputy District Attorney Lisa Green asks FBI agent Mark Safarik what is the motive.
He said some children could be killed because they are witnesses. But with the 2 year old and 6 week old, they could not be witnesses. What would a person gain by killing a baby? Safarik asks. He wondered if there could be a financial motive to someone. There is nothing to indicate there is a sexual component to any of the killings, Safarik said. Why would Earnestine Harper have her pantyhose down around her knees? Safarik said other atributes indicate that is not what happened here. He also says that children are not involved with sexual elder abuse crimes. Safarik considered if this was a crime where the killer could have some financial gain. He says there is nothing to suggest that. Safarik says there is a lot of electronic equipment, cash laying out, jewelry. The only thing missing is a cellular telephone. Safarik believes this crime scene was staged. “Recognizing staging in crime scenes is important because it suggests some relationship to the scene,” Safarik said. “When you see a crime, there is a flow to the crime, they make sense,” Safarik said. The offender fails to carry out the staged crime to the logical conclussion, Safarik said. The criminal does not do things in chronological order or a person may introduce things that do no belong there. The reason the offender fails to carry out the crime is they fail to bring the crime to the logical conclussion, Safarik said. The movement of the large plasma screen television, 50 pounds, which is large, heavy. If a person has engaged in the effort to lift the television of its stand, why wouldn’t a person take it? It is not taken it is laid carefully on the floor, Safarik said. Safarik said if you’re going to search the purse why not dump them on the ironing board? The purse was dumped on the floor. Why would a person kneal down, Safarik asks? “There is nothing taken from this scene, there is nothing of any value, even though there were items of value to take,” Safarik said. He also believes the computer tower was also moved to another room, Safarik said.
FBI agent Mark Safarik believes there is only one offender. He can’t tell the jury there is not more than one offender, but there is nothing at the scene that indicates a second offender. He said if there is another offender he is not engaging with the victims or the crime scene.
He believes the weapon was brought to the scene. Why would an offender bring a gun, Safarik asks himself. The shots were done very specifically, Safarik said. The intention of the offender is to kill the children, Safarik said. These shots are not random. It is a single shot for each of the children. This offender is driven to obliterate the people in this residence, Safarik said. Earnestine is shot in the face because she is up and mobile. Joanie is shot in the head, but she is lying down in the head in the master bedroom where the three children are located. There is nothing to indicate that Joanie ever got up off the bed. The blood spatter indicates she was lying on the bed as were the three children. Most likely she was asleep and can’t resist or confront the offender, Safarik said. She is likely shot first and incapacitated and other shots follow. If she were up would she have defended children? Green asks. He would not expect her to remain lying on the bed if she were aware that someone was in the room, Safarik said. Joanie hung up her clothes in the closet so she could wear them again. Marques’ clothes are neatly folded on the chair. Lyndsey and Earnestine are still wearing the clothes they wore to church. Safarik recalls that Kelsey Spann found the sliding glass door open even though it is normally locked. The offender came into the residence earlier through the garage and using a key entered the door between the garage and the house. Moving the wooden dowel. He believes the killer prepared the residence for entrance at a later time. He is assuming the killer opened the garage door and unlocked the door. No force was used. He believes Earnestine was in her bedroom napping with her pantyhose down to her knees. She was an obese woman who would pull her pantyhose down when she rested because of the pressure on her abdomen. She could be in the bathroom, but the bathroom is adjacent to the bedroom. he doesn’t know for sure, but he doesn’t think it makes a differene because Joanie is the initial target and presents the biggest threat to the offender. Joanie is shot initially and the offender move behind Lyndsey and shoots her in the back. The problem is the shots have allerted Earnestine. She is up and moving. She doesn’t bother to pull up her pantyhose because of the crisis of the situation. She arms herself with an antique revolver. She doesn’t get very far before she is immediately confronted and shot in an upright standing position. It is unlikely Earnestine would have let someone in because she was security conscious and because she had her pantyhouse around her knees. She is logically responding to the gunshots. Earnestine Harper may have been calling out and that might alert the offender she was on the move. To get to Earnestine in that short a period of time in the relatively cluttered house and in the strange configuration of the house, unless you’re familiar with the layout how do you find this location, Safarik asks. After shooting Earnestine, the offender travels from where he killed Earnestine Harper back to the master bedroom where the shots have alerted Marques. Lyndsey doesn’t move from her position napping at the foot of the bed. Safarik believes Marques was asleep, sat up and saw what was going on, but the offender did not have time to kill Marques because Earnestine is on the move. In that time marques bit down to the bone on his finger. Marques is biting down on his fingers such that he has bloodied his lips and caused fairly significant injuries to his finger tips. While Marques is sitting up, the offender comes around the puts the pistol close to Marques face and he is shot in the forehead based on the stipling, unused gunpowder. Marques goes down on the bed, Safarik said. The infant between Marques and Joanie Harper is shot last with a single wound to the infant’s back.
FBI agent Mark Safarik said he thinks the Harpers had a low risk of being victims.
He was contacted in Aug. 2003 about the Harper case. He was given crime scene photographs, investigative reports related to crime scene, evidence, autopsy protocols from medical examiner and photographs, crime scene diagrams. Safarik reviewed these items and considered victimology with regard to Earnestine Harper. She was an elderly woman. She was heavily involved in her church. She was religious and owned her own home. She was very security conscious, based on the way she secured her residence. She was well liked by her community. There was no evidence anyone had a grudge against her. She disliked and distrusted the police. He is not sure what caused that. She is security conscious. He doesn’t know why that is. He considers her a low risk victim. Green puts up a photo of a chair under the door. Earnestine Harper put a chair under the door knob to ensure someone could not enter the locked door. Safarik said this is an example of her security consciousness. “It’s almost excessive behavior as far as the security aspect of the home,” Safarik said. Safarik found there was nothing in her background meaning her risk level is low and the secure environment also makes it low. He noted that this residence was more secure than other houses surrounding because it had bars on windows and doors, which some others don’t. The house is also on the corner, meaning it is visible from many angles. “It is not a good target for someone who is thinking about breaking into a house for a burglary or a robbery,” Safarik said. She does bolster her residence with chairs and bars, which is well beyond what most people do in terms of safety. He also examined Joanie’s safety. She was an adult, fairly tall, a big woman. She was employed, held a steady job, she was a religious woman who doted on her kids. Nothing in her background suggests an elevated risk level. She was married, but they were separated at the time. There were no indications she had been threatened or followed by anybody. Her risk level was low. He believes the killing happened on Sunday July 6, 2003. He noted that people saw them at church that morning. A video from church shows what they were wearing. They went out to eat after church at Black Angus. They finished at 1:40 and left the restaurant and went back to the residence. They were supposed to return to church at 6 p.m. that evening and they did not. Safarik said Joanie Harper had no drugs or criminal problems. She was also in a secure environment. He accessed her risk level as low. They are not good targets for becoming the victims of violent crime, Safariks said, so when we see low risk victims targeted the pool of potential offenders becomes much smaller. High risk victims have higher offender pools. As to the children, the children are so young they don’t have a victimology because they are not outside the confines of being with their parents. When he accessed the children he considered motive, not victimology because they don’t have a victimology. He believes the primary target of the killings was Joanie Harper because she is the one who sustained the most injuries and injuries from two different weapons and there is a lapse in time between the shooting and the stabbing. He is relying on coroner’s reports and criminalists reports to make these determinations. The risk level for the offender is elevated. This is a sunny Sunday afternoon. He said there is a window of two or three hours in which the family was killed. A weekend is a problem is a residential neighborhood because people are not at work, they are at home. Offenders cannot control being seen going to or coming from a crime scene.
FBI agent Mark Safarik explained Tuesday to a jury in the Brothers case how he analyzes a crime.
He said the important this is to look at the totality of the evidence and not pull out one bit of evidence. Safarik asks himself why that victim, why that time, why that crime, why that location. He looks at the history of the person, the social habits, do they have a job, what are their relationships. “Looking at all of these aspects helps me understand why a person is the victim of a violent crime,” Safarik said. What are they killed with, what is the weapon, is it up close and person, is it hands on or is it a distance weapon, Safarik said. What does the injury tell us, is there a difference between someone who gets stabbed one time or 150 times? What types of injuries, life threatening or superficial injuries, Safarik said. The vast majority of violence offenders are males, Safarik said. He also considers motive, body disposal in a homicide, how does the defender handle the body, Safarik said. He analyzes the victim’s risk and the offender’s risk. Some victims are high risk. For these, the risk for the offender is low - hitchhikers, prostitutes, drug users. Why would the offender raise their risk level? Safarik asks himself.
Deputy District Attorney Lisa Green calls to the stand Mark Safarik. He is a supervisory special agent in the behavioral analysis unit.
Before joining the FBI, he was a police officer in Davis, California. He has been an FBI agent for 23 years. He investigates 15 to 20 cases at a time, but he also does research. He has had 6 articles published in a peer-reviewed journal, not including one coming out in June in a journal of aggressive and violent behavior about elder abuse. He also gives presentations to inform people of different issues. Safarik is a member of the American Academy of Forensic Sciences, and other organizations. He also teaches law enforcement investigators in California. He has worked on more than 4,000 cases. He has had classes on blood spatter interpretation. He has qualified as an expert in crime scene analysis in court about 12 times including California.
Deputy District Attorney Lisa Green calls to the stand Deputy District Attorney Kate Zimmerman. She handled the plea agreement of a witness in the Brothers case.
The witness, Jasper Robinson, testified that he saw Brothers behind the Harper house on the day the prosecution believes the family was killed. Robinson did not come forward with this statement until he was in jail months later. Robinson was charged with possession of cocain for sale and possession of cocaine Zimmerman said. There were .25 grams of cocaine, a quarter of a sweet n’ low package. She said she would not file a possession of cocaine for sale charge based on this little amount of drugs. Robinson had never been to prison before. She offered 16 months of prison time, which is the low term. She did not know that Jasper Robinson was involved with Brothers and she did not discuss the plea deal with Green. The plea was made in Oct. 2004. Zimmerman said that on a drug charge people are eligible to be released after 8 months on a 16 month sentence, with good time and work time. Defense attorney Michael Gardina questions the witness. Robinson initially faced five years and eight months, but Zimmerman said he was mistaken about the highest possible term Robinson would face because she was new. Robinson admitted buying the cocaine and said he was going to sell it, Zimmerman said. She recommended three years in prison, initially. A supervisor would have to approve the plea agreement. Robinson had three misdemeanor probation cases for drugs.
The prosecution wants a defense attorney to testify about a plea agreement from one of the witnesses who said he saw Brothers in Bakersfield around the time of the killings.
Art Titus, from the public defender’s office, said he does not want to waive the office’s attorney-client privilege on Mr. Brothers. The Kern County Public Defender’s Office briefly represented Brothers as secondary attorney at the appointment of a judge, but the office successfully fought the appointment in the Fifth District Court of Appeal. Green said she will withdraw her request to have the public defender on the case. The witness, Jasper Robinson, testified that he saw Brothers behind the Harper house on the day the prosecution believes the family was killed. Robinson did not come forward with this statement until he was in jail months later. Robinson received a plea agreement on a drug charge and Green would like to prove that Robinson was not treated favorably in exchange for his testimony. Defense attorney Michael Gardina said that in Deputy District Attorney Lisa Green’s opening statement, Green said an FBI agent will testify that the defendant confronted Earnestine Harper. The judge has ruled that the agent cannot testify that Brothers was the killer. Kern County Superior Court Judge Michael Bush said he assumes that was a slip of the tongue for Green. Green said she understands the court’s ruling, and acknowledges that she understands that the agent cannot testify that Brothers was the killer. But she does not believe she committed any kind of misconduct. Bush reiterated his ruling.
Defense attorney Michael Gardina continues to question entomologist Lynn Kimsey.
She testified that bugs found on Brothers rental car had bugs from the western United states. Kimsey said that some of the publications she relied upon to develop her theories on where the bugs live were published in the 1950s. But she said she supplemented these with more modern publications. Gardina asks why an insect could change its distribution, meaning where it lives. She said bugs can start to live in new areas. She said butterflies may not have stuck to the car because they are delicate.
Defense attorney Michael Gardina questions entomologist Lynn Kimsey.
She looked at specimens at museums and publications to see where these bugs are distributed. She has not done any field work on the grass hopper and some of the other bugs. She did do field work on other bugs in question and has done field work in the mid-west. Gardina questions if she compared some of the bugs with those found in Ohio. She said not from Ohio, but other states. She has not published papers about many of the insects, but is working on a paper about wasps. Insects can be found outside of their area of distribution, Kimsey says.
Entomologist Lynn Kimsey also found bugs on the air filter. She found a species of True Bug.
This bug is found in Southern California, Nevada and Utah, Kimsey says. Kimsey was given a report from the defense entomologist. She requested to re-examine the samples. She did not change any of her opinions based on the review. She did make another identification from a bug at the air filter. She said she did not have the time to make this identification when she was first given the samples. This was a second True Bug. Kimsey consulted with a graduate student to determine the species of this second True Bug.
Entomologist Lynn Kimsey also found a very large grass hopper leg. Based on the size and coloration and markings, she was able to determine what kind of grass hopper she was looking at. The hind legs of the grass hopper, which they use for hopping is helpful in determining what type of bug it is, Kimsey says.
The inside of the grass hopper leg is red with a black marking. This type of grass hopper is unusually large. The grass hopper is close to two inches long. There are cream color bands with darker brown bands around the legs. This bug is faily localized in Oklahoma, west Texas and into Mexico. It can also go west and up into Canada, Kindsey said. The bugs were taken off Vincent Brothers’ rental car, which the prosecution believes Brothers drove to Bakersfield from Ohio to kill his family.
Entomologist Lynn Kimsey was given a couple of viles with bugs. The bugs were taken off Vincent Brothers’ rental car, which the prosecution believes Brothers drove to Bakersfield from Ohio to kill his family.
An FBI agent initially tried to remove bugs from the car with tweezers, but found he was destroying the bugs in the process. So he decided to ship the entire radiator and air filter to the entomologist. Kimsey explains the organization system for bugs. She was able to identify 12 species either in whole or in part. Kimsey found one paper wasp. Green shows a photo of the bug and a map of the United States where this bug would be found. One photo is of the bug found on Brothers car compared to another found at the museum where Kimsey works. You find the paper wasps most in California, but you find them as far east as Montana or maybe South Dakota, Kinsey says.
Deputy District Attorney Lisa Green calls to the witness stand Lynn Kimsey. She is a professor at the University of California, Davis. She studies entomology, which is the study of bugs.
Specifically she studies the biodiversity of California insects. She works at a museum with seven million insects collected. She worked on the Brothers case. This was the first time she reviewed bugs for a law enforcement agency. Kimsey spent most of a day reviewing the bugs and she was not paid. She said it did not occur to her to charge for reviewing the bugs. “It was actually a lot of fun,” Kimsey said. She said she will bill for going to court at $150 an hour. She was asked to find bugs on a radiator and air filter to determine where they were from. Kimsey was given no information about the case. “It was a new puzzle, sort of a new research area,” Kimsey said. She was surprised at how intact some of the insects were. The only question posed to Kimsey by law enforcement was if it had been in the western part of the country. The radiator and air filter where the bugs were found was taken from the Dodge Neon that Vincent Brothers rented during a trip to Ohio to see his brothers. The prosecution believes Brothers drove back to Bakersfield during this trip to kill his family. |