Unsealed court documents in Kristin Smart case reveal potential defense witnesses
Editor’s Note: This is another in a series of stories examining hundreds of improperly sealed documents in the Kristin Smart trial. The Tribune obtained the documents by joining with three other media companies to form a coalition that took the issue to court. The coalition won its argument, and the documents were unsealed.
After the prosecution rested its case against the men charged in the Kristin Smart murder trial on Tuesday, the defense was expected to call its first witness Wednesday.
The list of witnesses that could be called by defense attorneys for Paul and Ruben Flores is expected to be short when compared to the witness list for the prosecution.
The defense is expected to call three “experts” to challenge the prosecution’s claims, according to documents unsealed by a Tribune-led news media coalition.
Two of those experts are expected to testify about the soil samples found at Ruben Flores’ Arroyo Grande property, which tested positive for human blood, according to a forensic DNA analyst. The other is expected to testify about the accuracy of cadaver dogs.
Reports from the defense experts were among the hundred of documents unsealed by the news coalition.
Monterey County Superior Court Judge Jennifer O’Keefe denied calling “third party culpability witnesses,” or alternate suspects the defense believes could have killed Smart in 1996 other than Paul Flores, during pretrial motions in early July.
Paul Flores’ father, Ruben Flores, is accused of helping his son hide Smart’s body.
Soil sample tests not ‘scientifically reliable,’ defense expert reports
On Tuesday, the defense questioned Angela Butler, a senior forensic DNA analyst for the Serological Research Institute (SERI) in Richmond, about the fact that she did not test the pH of the soil samples before running the human blood tests.
Butler testified Tuesday that testing the pH was not a requirement and was not needed during this case.
Paul Flores’ defense attorney, Robert Sanger, asked Butler if she had worked with Elizabeth Johnson, a forensic science consultant, on past cases. Butler said she had.
According to unsealed documents, Johnson submitted a report to court reviewing the Smart case and particularly the potential accuracy of the so-called HemDirect test manufactured by Serotec, a German company.
It’s the test Butler used to determine where any hemoglobin, or human blood proteins, could be detected in the samples.
According to an email exchange between Johnson and Serotec scientists, there are no validation studies pertaining to the test’s ability to accurately read samples exposed to soil for more than 20 years.
“Generally I would say that after 20 years there is no hemoglobin left due to degradation. Maybe in a dry desert on shady place,” Christian Stadler, a scientist with Serotec, wrote to Johnson.
He added the test could react “invalid” if the pH is too high or too low, but the buffer that is required to be used with the test should prevent that outcome.
In her report, Johnson wrote that previous studies involving aged bloodstains “always involved samples stored at room temperature under laboratory conditions” in order to yield positive results.
Another study found most human blood exposed to ”significant degradation,” adding that most gave negative results after exposure to environmental conditions, according to the report.
Studies involving false positives with the test focused on reactivity with blood from non-human species and pH variations, the report said, and there have not been any extensive validation studies performed to verify the effect of chemicals possibly present in soil would have on the human blood test.
“This test system has been applied to case work samples without proper validation for the type of samples on which it was used,” Johnson wrote in her report. “Therefore, the positive and weakly positive test results obtained by SERI on soil samples tested with the Seratec HemDirect assay in this case cannot be considered scientifically reliable.”
Butler testified Tuesday that validation studies for the test’s accuracy in soil was not necessary.
“It’s impossible to have a validation study for every forensic sample,” she said, adding that the lack of such a study “does not negate your results.”
Defense: Area underneath Ruben Flores’ deck ‘not consistent’ with human remains
The other soil expert expected to testify for the defense is David Carter, a professor of forensic sciences for Chaminade University of Honolulu.
In an unsealed report, Carter concluded the visual characteristics and elemental and nutrient concentrations of the soil from underneath Ruben Flores’ deck do not confirm the presence of decomposing human remains.
Carter agreed in his report that there is an area underneath the deck that had “significant color changes moving down the soil profile” — something prosecution witness Cindy Arrington, an archaeologist, said was likely from decomposing human remains.
But it’s difficult to determine the cause of the color change because it could be a result from various processes, including the presence of moisture or the movement and concentration of iron, Carter’s report said.
Iron levels were “very high” in all areas excavated by investigators, Carter wrote, but sodium and electrical conductivity was greater in the stain area than others.
Even so, the levels are “not consistent with the presence of decomposing human remains and the analyses conducted did not identify physical evidence of decomposing human remains,” the report said.
Defense witness: Cadaver dog alerts are ‘unreliable’
A contested witness the defense may call to the stand is James Ha, a certified applied animal behaviorist from Washington.
In pretrial motions, the prosecution argued Ha was not an expert in cadaver dog behavior, but rather an expert in birds and primates based on his experience.
According to his website, DrJimHa.com, Ha does behavior consulting for dogs and cats for aggression, anxiety and other misbehaviors and provides expert legal witness services for criminal, civil and dangerous dog actions.
In his opinion, which was unsealed by the court, Ha wrote “while dog-tracking evidence can be used to corroborate other existing crime scene evidence, it should not, as here, be used as primary evidence in a criminal case.”
Even the best trained tracking dogs never reach beyond an 80% accuracy rate, Ha argued in his opinion.
Ha claimed it is “quite common” for cadaver dogs to alert or respond to an old animal bone, bacon grease or a discarded sandwich — something that cadaver dog handlers testified in court was nearly impossible to happen because they trained their dogs to ignore animal remains and food when searching.
He also said cadaver dogs can only detect remains that are present at the time of detection.
“If there is organic material present for the dog to detect, then they would be detectable to any forensic lab’s examination,” Ha wrote in his report.
Ha also claimed residual odors from decomposing organic material can breakdown within 48 hours. Beyond that time frame, there must be a source of decomposing odors that would be detectable to “any competent forensic laboratory,” the report said.
“The only other alternative is that the dog made a mistake, or marked on not-forensically-interesting biological materials, a not uncommon occurrence,” Ha wrote.
Ha said the accuracy of the cadaver dog alerts and responses should be called into question because Paul Flores’ former Cal Poly residence hall room was cleaned and furniture was potentially moved before dogs searched the room.
He noted that the room was not forensically cleaned, either.
Ha alleged law enforcement officers could have tracked in human material from other crime scenes that could confuse the dogs.
He also said the handlers were provided or sought out “highly prejudicial information about the suspect” before initiating the track, which violates protocol.
Every dog handler who has testified in the Smart case said they conducted the searches “blind,” meaning they had little information about what they were looking for and specific areas of interest beyond human remains and a large search area.
“It is my opinion that the detections and indications by the cadaver dogs used in this case are invalid and unreliable,” Ha concluded in his report.
Witness testimony for the defense is expected to begin Wednesday morning.
This story was originally published September 21, 2022 at 9:28 AM.
