Free Motion in Limine - District Court of Delaware - Delaware

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE ____________________________________________________________ HARRY SMITH, JR., and ROSLYN WOODARD SMITH, individually and as Administrators of the ESTATE OF HARRY SMITH, III, ) Plaintiffs, ) v. ) No. 04-1254-GMS ) CITY OF WILMINGTON, JOHN CIRITELLA, THOMAS DEMPSEY and MATTHEW KURTEN, ) Defendants. ) ) ) ) ) ) ) ) )

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UNIVERSITY PLACE, WASHINGTON; MONDAY, APRIL 2, 2007 1:14 P.M. --o0o--

THE VIDEOGRAPHER: This is the videotape deposition of Jon J. Norby, Ph.D., Tape 1, Volume I, in the case of Smith, et al., vs. City of Wilmington, et al., Case No. 04-1254-GMS, in the United States District Court for the Western District of Delaware. Today's date is April 2nd, 2007, and the time is 1:14 p.m. This deposition is taking place at 3532 Soundview Drive West, University Place, Washington, and was noticed by John A. Parkins. The videographer is Dan Fisher, for Premiere Realtime Reporting & Videography. The court reporter is Ron Cook, for Premiere Realtime Reporting. Will counsel please announce their appearances for the record, beginning on my right. MS. SULTON: Attorney Anne Sulton appears on behalf of the plaintiffs. MR. PARKINS: I'm John Parkins. I represent the defendants. THE VIDEOGRAPHER: Will the reporter please swear in the witness.

____________________________________________________________ Videotape Deposition Upon Oral Examination of JON J. NORDBY, PH.D. ____________________________________________________________ Taken at 3532 Soundview Drive West University Place, Washington

DATE: Monday, April 2, 2007 REPORTED BY: Ronald L. Cook CCR, RMR, CRR

JON J. NORDBY, PH.D.,

deponent herein, being

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1 APPEARANCES 2 3 For the Plaintiffs: ANNE T. SULTON 4 5 6
Post Office Box 2763 Olympia, Washington 98507 609.468.6029 [email protected]
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EXAMINATION BY MR. PARKINS: Q. first duly sworn on oath, was examined and testified as follows:

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For the Defendants: JOHN A. PARKINS, JR. 7 Richards, Layton & Finger One Rodney Square 8 P.O. Box 551 Wilmington, Delaware 19899 9 302.651.7624 [email protected]

Dr. Nordby, would you please tell us what is

forensic science? A. Forensic science is a term that is used to

cover natural science as applied to the facts involved in legal matters, so the word forensic literally means forum or -- which means in the Latin I think something like for public debate. So it's the application, it's -- forensic science are applied sciences. Q. scientist? A. Q. Yes. Would you tell the jury what you were asked Would you consider yourself to be a forensic

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DANIEL FISHER, Videographer
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to do in this particular case? A. In this case I was asked to do the following,

review all the documentation that was provided to me in terms of police reports, in terms of autopsy report, photographs, anything related to the physical evidence at the -- involving the incident under -- under question. And I was asked to assess the physical evidence in the light of

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my areas of expertise and to attempt to -- insofar as the nature of the evidence permits, provide some type of a reconstruction of events, which is really at the heart of what applied forensic sciences do or strive to do. Q. Why don't you tell us what in your background

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Q.

Have you worked for any other governmental

agencies other than Pierce County? A. Yes. Worked for King County, which is

Seattle, doing medicolegal death investigations. I was also in both areas heavily involved in writing training materials for investigators, for pathologists. I also taught at the Washington State criminal justice training commission, where I provided training for medical examiners and deputy medical examiners in how to process crime scenes, how to collect, process and store evidence, especially blood-related evidence. Q. Have you done any consulting work for

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enables you to do such work. A. I've always been interested in puzzles and

solving puzzles, and my father's a physician, my mother an artist, and I wanted to figure out how my dad could read an x-ray and come up with a course of treatment by looking at these mysterious shadows, and -- and so I found that my interest was in the process of diagnosis or producing medical explanations rather than specifically anything to do with clinically treating patients. So I pursued my interest by studying philosophy of science and logic and philosophy of mathematics, with a twist to applied sciences. So in the course of my education and training I pursued these -- these areas throughout my entire life and continue to do so at this point. And much of the work in forensic science 30 years ago, when -- when I was involved in my formal education, comes from training and practical experience as opposed to specific courses of study, which they have today. Q. So when you were in college were there

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governmental agencies? A. Yes. I -- I currently am a member of what's

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called SWGSTAIN, which is the scientific working group in blood stain pattern analysis, and that's with the FBI lab in -- in Washington, D.C. I've been a member of the group and my -- my job is to write protocols for the scientific approach to crime scenes involving blood-stained pattern analysis, and the physics of understanding mechanisms of injury that produce blood at crime scenes. Q. Have you ever done any work in connection

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with September 11th? A. Q. Yes. I'm a member of D more the team 1010 -Would you explain what D more the team 10 is?

frequent colleges with majors in forensic science? A. No.

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Q. Tell us a little bit about your employment

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A. D more the is -- at the time when it was started was part of a national disaster medical service, and it since became under the guise of Homeland Security. I am a founding member of the department of Homeland Security, which is an honor that was given to those of us who worked at the 911 twin towers. My job was autopsy examination of human remains, and specifically to find medical appliances, remove them and look for serial numbers, for example, in any medical device that might be among the remains. Also to catalog and organize the remains so that we might apply various techniques to help identify the victims. I also removed various specimens for forensic odontologists, who are dentists who were charged with comparing postmortem dental records with any anti more item records that were available, in the hope of identifying victims. Q. died? A. Q. Before the death occurred, yes. Have you had occasion to deliver any lectures By antemortem, you mean before the victims

experience insofar as it relates to forensic science. A. I accepted a position at Pacific Lutheran

University as a professor -- new professor at the rank of assistant processor in 1977, knowing that Pierce County, which is the county where we -- we live and where the university is situated, is changing from a -- an old-time coroner system, which is an elected official involved in death investigation, to a medical examiner system, which is a system which requires board certified forensic pathologists, and I thought it would be interesting to be involved in -- in the development of an -- an office. My teaching duties included making connections between law enforcement and the academic world. I set up courses in critical thinking and writing, which is one of the areas that I covered in my study of the production and defense of scientific explanations. Q. Did you play any role in investigation of

deaths in Pierce County? A. Yes. As Part my training I did what's called

a preceptorship in forensic medicine with Dr. Emanuel Lacsina, who was then chief medical examiner in Pierce County, and I -- I pursued this course of study for six

on forensic science issues? A. Yes, for many years, since the focus of my

years, and essentially while pursuing that I was involved in investigations of deaths in Pierce County.

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intellectual work was medical diagnosis and the problems associated with inference, which is a branch of logic, I brought that to my training and my experience with forensic

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science and forensic medicine, both formally and informally in terms of my work experience. But I -- I was able to teach courses which I was to develop for Pacific Lutheran University, I -- I set up courses in which I lectured, obviously. I also gave many presentations in areas of my research and areas of my work to various forensic science on, which are peer reviewed, and I've published papers, chapters of books, two of my own books, one edited with a colleague, which is a textbook in forensic science and medicine, and my own book on the process of the logical and philosophical foundations of forensic science involving the production and defense of explanations. That's called dead reckoning, the art of forensic detection. Q. A. When were your books published? My first book was published in 1999. My

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forensic sciences? A. Q. A. Q. Yes, that's correct. And you're a board member? I was a board member, yes. Tell me what is involved when you were

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certified by the American Board of Medicolegal Death Investigators. A. We have both a practical requirement and a --

an academic requirement. The practical requirement involves a certain number of hours of supervision doing medicolegal death investigation, which involves examining decedents at scenes of sudden or violent death or unexpected death, unattended deaths, hospital deaths in some cases, so there's a wide range of -- of different cases that fall under the jurisdiction of the medical examiner. So the duties are -are varied. So we wanted a practical component to require a certain number of hours and certain number of quality of level of participation in death investigation. Then, since this is also involves an academic area a specialization that requires some medical knowledge as well as practical training, there is a written examination as well as a practical examination that -- that one has to complete. In addition, to remain current and maintain board certification, there are continuing medical education

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second -- first edition of my second was in 2002, I believe, or -- I -- I'm not sure. Q. Is there any board which certifies forensic

scientists? A. The -- the answer is somewhat complex,

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meaning that there are several parts to it. Some areas have developed board certification processes in an attempt to standardize practice and protocols in the forensic sciences, to avoid the sort of hit and miss kind of lapses in training and preparation that one can find in medical examiner --

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examiners' offices, coroners' offices, or in sheriff's departments, police departments and so forth. The most obvious is in forensic medicine, forensic pathology, is a specialization which has a board certification much like any other specialty, such as internal medicine or radiology or psychiatry or other -- other branches, but that wasn't established until 1959 in the United States, so -- other forensic sciences have followed. There are various accrediting agencies, some of which require certain number of hours of experience and some which focus on training and so on. Q. A. Q. A. Are you board certified? Yes. By whom are you board certified? The American Board of Medicolegal Death

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credits which have to be earned, and those are earned by attending courses which the American Board of Medicolegal Death Investigators approves and gives certain number of hours credits for. For example, in my involvement with the FBI in SWGSTAIN, we meet twice a year for a week to conduct research to do work to advance the forensic science of blood-stained pattern analysis, and those hours would be applicable for continuing medical education for the board. So those are the components necessary. Q. Dr. Nordby, as you wrote a written report for

me at my request, did you not? A. Q. Yes. And did you attach to your written report a

curriculum vitae? A. Q. Yes, I did. I'm going to ask you -- I'm going to show you

Investigators is a -- an organization that was started with an effort to help provide some standards for death investigation in the United States. There were prior to this organization no certifications, no training requirements and so forth to become a medicolegal death investigator. And this problem was addressed by members of the American academy of forensic sciences. I've been a

what I believe to be your curriculum vitae and ask you if this is what you prepared for me. A. Q. Yes. Does this reasonably and fairly summarize

board member in that organization, I've been a member for

many years, and was on their ethics committee for 10 years. Q.

So you're a member of the American academy of

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A. Yes. Q.

your professional accomplishments in the field?

I'd like to have the court reporter mark this

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as Exhibit 1, Nordby Exhibit 1, please.

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Q.

(Deposition Exhibit 1 was marked for identification.) BY MR. PARKINS: Dr. Nordby, have you ever

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an advocate for any particular side. The results of my scientific endeavors would be the same whether I was working for the plaintiff or the defendant. There would be no difference. And I indicate that in this letter of engagement, which I ask my prospective clients to sign before I begin any work in -- on the data. Q. before? A. Q. No, sir. Have you ever worked for the Wilmington Have you ever worked for me or my law firm

been qualified by a court as an expert witness in the fields of forensic science? A. Q. A. Yes. Tell me how often that has occurred. I'd have to look at my record. I don't --

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it's been enough times that I can't remember. Q. If I were to hand you a document which you

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attached to your report, is this the record that you had to look at? A. Yes, and I always try to put a date at the

Police Department before? A. Q. No, sir. You're -- this deposition is being taken in

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top of both my vita and my court experience, indicating that it's current through that date, because an additional case may come and need to be added. But yes. Q. Without bothering to count the number of

your offices and laboratory in Washington state; is that correct? A. Q. That's correct. Is it fair to say that last fall you were

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times, can you estimate for us the number of times that you have been qualified by a court to give expert testimony? A. Q. country? A. Yes, sir. They are various jurisdictions in 25 or 26 times. And these are various courts around the

diagnosed with a serious illness? A. Q. Yes. Does that -- your illness allow you to travel

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across the country to testify live before the jury in this matter? A. Q. No. Do you understand that your deposition today

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the United States and in Canada. They're both federal court and state court.

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is being conducted in lieu of your live testimony before the

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Q. Dr. Nordby, let's take a quick look at your
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jury? A. Q. Yes. Let's focus again, if we could, on your

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role as an expert in this particular case. Are you being compensated for your time by the defendants? A. Q. Yes. Would you please tell the jury how much you

assignment. What did you do to analyze the evidence in this case? A. Well, the first step is to assemble the

are charging the defendants for your time. A. My time is billed at $275 an hour. For long

available evidence and to understand the scope and nature of the questions that might be posed to that evidence, so police reports, anything that involves the collection process and documentation of physical evidence would be something I need to see, as well as that physical evidence itself. Q. Did you ask me for any documents or

days, many involving more than 12 hours, I bill a flat rate of $3,000 a day. For courtroom testimony I bill at the rate of $500 per hour. Much of that is to account for the overhead of our laboratory, which is quite an expensive operation to run. Q. Is your compensation in this case in any way

dependent upon the outcome of the case? A. No, not at all. In fact, the -- the way that

information that I refused to give you? A. Q. A. Q. No. Did you visit the scene of this incident? Yes, I did. Did you examine the automobile which

I conduct my consulting practice is that I provide a letter of engagement, which states basically that as a forensic scientist my job is to develop physical evidence, to assess that evidence within the limitations of my own experience and expertise in the relevant science, and to provide an explanation of why if we are unable to do any inferences -to support any inferences from the data, why -- why that's the case. I am bound to the best methods of forensic

Mr. Smith was driving at the time of this incident? A. Q. Yes, I did. How long did you spend examining the

science and medicine that I can maintain to come up with what the facts show. In that sense, my role is not one of

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automobile with -- that Mr. Smith was driving? Approximately a week. We analyzed the damage

to the vehicle, trying to document anything that involved the shooting, we tried to examine everything relating to the

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blood shed and the incident that occurred, fractures of glass and the nature of the damage to the vehicle. Q. Did you test fire any weapons that were

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Q.

Incidentally, so that we can make this

absolutely clear, the vehicle in this photograph is the vehicle which Mr. Smith was driving at the time of this incident? A. That's my understanding, that's correct.

involved that evening? A. Q. residue? A. Q. Yes. I'm going to show you a few photographs that Yes. Did you examine any materials for gunshot

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It's Patrol Car 1180. Q. Would you do me a favor, please, and turn to

Page I believe it's 38, which I believe is clipped. A. Q. A. Q. 37? 38. Okay. Would you hand that to the court reporter,

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you have previously submitted to us and we have shared with the -- with Ms. Sulton, and before we do that, I'm going to ask the court reporter to mark them one by one, and I'm going to ask you in connection with each photograph to just tell the jury briefly what is happening in these photos. Let's ask the court reporter to please mark as the first exhibit, I guess it would be No. 2. (Deposition Exhibit 2 was marked for identification.) Q. BY MR. PARKINS: Incidentally, Dr. Nordby,

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and I'll ask him to mark this as Exhibit 3. (Deposition Exhibit 3 was marked for identification.) THE WITNESS: Okay. Q. BY MR. PARKINS: Tell the jury what this

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photograph depicts. A. The top photograph shows how we determine

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did you take these photographs? A. Q. Yes, I did. Can you estimate for us how many photographs

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the -- what's called the -- the Z axis, the point in space in the air vertically where a particular bullet entry or exit, depending, has occurred, and we use lasers to accomplish this, and this process involves setting up the equipment, determining angles and measuring those angles using lasers. Since the development of the Ruby laser it's

you took as part of your investigation? A. hundreds. It would be very difficult to estimate, but

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Q. A. Q. A. Okay. Including photomicrographs. What are photomicrographs? Photomicrographs are images that are taken

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become much easier to accomplish these measurements at -- at various crime scenes, and it becomes much easier to understand the dynamics of a shooting when you can understand where the exits and entries occur. The hope is to provide a map of the shooting sequence, not with the ability, necessarily, to tell which shot came first and second but to help understand the patterns that the shots in this case must conform to and the physical description of their trajectories. Q. Why not use plastic dowels or metal dowels to

through a microscope. Sometimes they are incorrectly referred to as microphotographs, which would be very, very small pictures. These indeed are images that are taken through a microscope. Q. Would you take a look at the first one, which

is on I believe Page 1, that the court reporter has been kind enough to mark. A. Q. Yes. Would you please tell the jury what is

do the same thing? A. There are several different methods that are

suitable. The difficulty with metal dowels, and again, the difficulty with any measurement technique, is that it requires an understanding of the materials involved in the shooting. In this case a car as very complex collection of glass, different types of glass, safety glass and tempered glass, then metals of different types, plastics, rubber, cloth, and each of those materials will respond slightly differently to the passage of a bullet, and it also depends on the type of ammunition. So what we're -- what we're trying to do is to appreciate the fact that bullets, while for the most part they travel in straight lines, when they hit a target they -- there is a deflection or some sort of change in the direction of that projectile.

happening in the upper photograph in -- in this collection. A. Yes. This is documenting the process that I

used to provide information about bullet entrances and exits in the vehicle. This top photograph shows the plum bob and a laser level and angle determining dial, which we use to document three dimensions of the impact of a bullet with the vehicle. We essentially treat the vehicle as if it were on an XYZ axis, which is a way of giving numbers running across the front of the vehicle, numbers running the length of the

vehicle, and then numbers running the height of the vehicle. And the photographs here depict that process of setting up the measuring devices to accomplish this examination.

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Metal rods traditionally have been used and put together to accomplish this approximation of a trajectory, but sometimes it becomes potentially misleading. If we think that because it's -- demonstrates a straight line with a -- with a trajectory rod, that that was the path of the bullet. The laser allows us a higher degree of control over the angle and the measurement so that we can appreciate deflections more easily. Also, there isn't the need to touch or damage potentially change the entrance or exits of the projectiles hen we use a laser, since light simply passes through. Q. How could you see, by the way, the path of

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A.

May I see the book for a second, please? Yes. MR. PARKINS: I'm going to ask the reporter to please mark as Exhibit 5 Page 48. (Deposition Exhibit 5 was marked for identification.) Q. BY MR. PARKINS: Does Exhibit 5 depict a

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similar effort as you just described to us in connection with 41? A. Q. a second. Can I ask the court reporter to mark as Exhibit No. 6 Page 91. (Deposition Exhibit 6 was marked for identification.) Q. BY MR. PARKINS: What does Page -- Exhibit Yes. Okay. Can we take -- let's see this book for

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the laser beam? A. What we do is we examine the vehicle, in this

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case in a confined controlled environment, where we introduce fog or smoke. It's a particular benign sort of particulate that is suspended in the air, and the laser simply shows on those suspended particles. Q. So you put the vehicle in a closed garage and

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No. 6 show? A. This is -- represents the documentation and

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fill it with smoke or fog and then take the photographs? A. Q. Yes. Would you take a look, please, at Page 41. And I'm going to ask that ask you to hand that to Ron and have him mark it as -- Exhibit 4, is it? THE REPORTER: Yes.

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measurements that were -- were done for the shots that came through the rear window of Patrol Car 1180 and also instruct Plexiglas slider between the rear passenger compartment and the front of the -- front seat of the vehicle. The numbers and letters are used to help us orient and -- and document each of the particular bits of damage. A commonly, although

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please. THE VIDEOGRAPHER: We're going off the record. The time is 1:48 p.m. Please stand by. (Short recess.) THE VIDEOGRAPHER: We're back on the record. The time is 2:00 p.m. Q. A. BY MR. PARKINS: What does 41 depict? The -- the top photograph shows the (Deposition Exhibit 4 was marked for identification.) THE WITNESS: I need to get some water. MR. PARKINS: Let's take a short break,

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not always, is an entrance, B is an exit, although not always, it's not a hard-and-fast rule, but as long as we understand that part of the effort is to understand entrances and exits, fracture patterns as they apply or don't apply, and what -- whatever else the physical evidence here can show us about each of those sets of impacts. Q. Based upon the information that you gleaned

from this undertaking, did you attempt to approximate the trajectories of the bullets that were fired at the police car? A. Yes. Yes. And again, the -- the notion of

importance here is reliability to make determinations of entrances and exits, not always precision or exacting measurements, because the different materials according to the research that I have done by firing suitable ammunition through different types of materials have what are called deflection angles, and those deflection angles can vary with -- with the material, with the type of ammunition that's used, and sometimes even with the environment, that is, whether the surface is wet or not wet, and so on. So the -- the effort is to -- to document each of those bits of data and record the result. Q. Is it possible to determine which shot was

orientation of a bullet crease and it is size and place in three-dimensional space. We also use at least three different applications of method where possible to produce a measurement. Because there are factors that can influence one method over another, such as error rates or other issues of more technical scientific sort, I will use trajectory rod and a laser and simple mathematics to determine what we can from a particular bullet impact in this case, and that's what that depicts. It shows the plum bob orienting vertical space and it shows the angle of impact with the trajectory

rod, and then a suitable measuring device, which gives us a scale for the whole process. Q. Thank you.

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fired first? A.

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Q.

Based upon your examination, do you have any

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Q.

Okay. Would you take a look at Page 8 and tell us

conclusions as to whether your findings are consistent or inconsistent with the positions of the defendant police officers as they've described them in their depositions? A. Without recalling every detail, it certainly

briefly what is there. A. Q. A. Excuse me. Exhibit 8? Exhibit 8. I'm sorry. Yes. This, again, shows two -- two

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is consistent with the story that was provided to me in those depositions. Q. Did you see any evidence that the car was

photographs. The top photograph compares a known with an unknown -- a known cartridge case fired through this particular pistol, Officer Ciritella's pistol, and an unknown item from Harrison Street, found at the scene. And again, these are firing pin impressions in the primer of the cartridge, and the firing pin on a pistol will leave characteristic impressions that can be analyzed in terms of their class as well as individual characteristics. Q. Do you have an opinion as to whether the same

struck by anyone standing on the side of the car, on the driver's side? A. On the driver's side, no. All of the impacts

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that were documented either came from behind -- from the rear of the vehicle or toward the rear and to the right side, that would be the passenger side of the vehicle, and those opinions are based upon the damage to the vehicle and the type of damage that we see to the vehicle. Q. May I see the photos for a second, please. I'm going to ask the court reporter to mark as Exhibits 6 and 7 two photographs that appear in Appendix Part 3, Pages 1 and 3. THE REPORTER: Counsel, this is 7 and 8. MR. PARKINS: Thank you. (Deposition Exhibit 7 was marked for identification.) Q. BY MR. PARKINS: Dr. Nordby, would you take a

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weapon fired both of -- used -- excuse me. Do you have an opinion as to whether the shell casings were both fired from the same weapon? A. Q. Yes, they were. Okay. One last photograph to look at, please. I'm going to ask the reporter to mark as Exhibits 9, I believe, Page 4 from Part 7 of the appendix. (Deposition Exhibit 9 was marked for identification.)

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look at Exhibits 7 and 8 and tell us if you took these photographs. A. Q. A. Yes, I did. Briefly, what do they depict? These are comparisons of test-fired bullets

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Q. MR. PARKINS: Is that 9? THE REPORTER: Yes. BY MR. PARKINS: Without any detailed

scientific explanation, can you just briefly tell us what Exhibit 9 represents? A. This is a graph, which represents spectra

from a particular pistol, with a serial number SAF0327, and they're compared with the bullet recovered by the medical examiner from the decedent, Mr. Harry Smith the 3rd, and these photographs were taken with a comparison microscope and documented showing the -- the physical features of each. Q. In your opinion does the -- the bullet which

from x-ray fluorescence analysis of particular items. In this case it's the headliner from the driver's side of Patrol Car 1180. And what -- what this does is x-ray fluorescence is a -- a scientific technique that we use to determine the elements that are present in a particular sample, and x-ray fluorescence works particularly well on melts. Q. Were you looking for any particular elements

was retrieved from Mr. Smith match the test bullet that -that you fired? A. Yes, both class and individual

characteristics show that the bullet recovered from Mr. Harry Smith the 3rd was fired through that particular pistol. Q. Do you have an understanding who that pistol

in -- in this study? A. Yes. When a -- a cartridge is fired in a

pistol such as Officer's Ciritella's pistol a primer is struck by the firing pin and that primer initiates the burn for the gunpowder to fire the bullet through the pistol, and characteristically there's antimony, barium and lead in most primers, and one indicator of the proximity of a -- the discharge of a firearm to a particular target is the presence of antimony, barium and lead fused as one particle. Q. Did you find any evidence of antimony, barium

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was used by? A. Yes. I was told that it was Officer

Ciritella's pistol. Q. Thank you.

Was this the bullet that was retrieved from Mr. Smith's brain? A.

Yes, I believe so.

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and lead in the headliner of the car?

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A. Q.

No. Did you similarly analyze the clothing worn

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the same type of ammunition with the same amount of powder, the same general configuration and design as those used by the Wilmington Police Department at the time of this shooting. The measurements were taken showing the -the location that ejected cartridge cases would fall when discharged from the weapon, and there's a wide variety, as one would expect, of distances which were documented and put together in a chart. Q. Did you use the same kind of ammunition as

by Mr. Smith at the time of this event? A. Q. Yes, I did. Did you find any antimony, barium or lead on

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his clothing? A. Q. you? A. Well, one has to be careful whenever one No, I did not. What does the absence of such a finding tell

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infers from the absence of something, but certainly in this case, considering other factors, as well, that -- the conclusion is that we can't say that any of those items, whether it be headliner or clothing, was within three feet of the discharge of a -- of a firearm. Q. If someone had stuck a firearm into the car

Detective Ciritella was using that night? A. Q. Yes. What general conclusions can you reach as to

the pattern of ejection of the shells -- shell casings? A. That the particular pistol discharges its

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spent cartridge cases slightly backward and to the right, which is the design of the weapon. Also, depending on the particular location that the shooter holds the weapon, it's possible and it happened several times that the ejected cartridge casing hit the shooter, and sometimes went higher, sometimes went lower, but the cartridge cases seemed to spin and stay in the air for some period of time rather than just go straight down. Q. What does the fact that there was one of

to shoot Mr. Smith, would you have expected to find those elements in the materials you tested? A. Q. Yes, I would expect to find them. Let's move on to your conclusions for a few

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minutes. And I'd like to focus your attention first on the events on 5th Street. The plaintiffs in this case I believe contend that Mr. Smith was trying to drive away from Detective Ciritella on 5th Street and the defendants contend that Mr. Smith was driving towards Detective Ciritella on

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Detective Ciritella's shell casings found in the car tell

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the 5th street. What does the physical evidence tell us about what happened at that time? A. The physical evidence indicates that Patrol

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you? A. Well, that tells me given the testing that

we -- we did -- that I did with -- with respect to the ejection patterns -- that tells me that within a range of distances we -- we -- we can put that cartridge case and its -- the fact that it's a spent cartridge case in proximity with that squad car, so that in order for that cartridge case to be in the front seat along the center console area of the squad car, the squad car and the ejected cartridge case had to be very close to each other in -- in space and time. Q. Would that suggest the direction in which the

Car 1180 was going toward the position that Officer Ciritella had taken at the corner and was going toward and past him. Q. A. And what physical evidence tells us that? There are several factors. One is the

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presence of glass on the corner. The glass is from the side window, at least it is typical of side window glass from the -- from the properly car. It is tempered glass. Then also there are two cartridge cases that were fired through over Ciritella's pistol that were found, one in the vehicle itself in the front seat of the -- of the properly car, and one found in the windshield wiper well of the vehicle, and the other factor are -- involves tire impressions and tire marks, and the impact between the properly car and a parked vehicle, which was a white Jeep. Q. Let's -- let's focus for a moment on the

squad car was driving? A. It -- it would. It would suggest that the

car was moving -- if we're facing at direct -- sideways, facing the passenger door, that it was moving from -- from left to right, and that since the pistol ejects cartridge cases also to the -- to the right and slightly backward and upward, that the cartridge case came through the window of the -- of the squad car while it was still in the air, meaning that -- that the car was fairly close. Q. Does that suggest whether the car was driving

shell casings, one of which was found in the car and one on the -- in the windshield wiper well. Did you test Detective Ciritella's weapon to see how it ejected shell casings? A. Yes. I fired the weapon over a flat concrete

surface so we could understand the characteristic patterns if there are characteristic patterns that result from firing

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toward -- behind Mr. Ciritella? I'm sorry. Could --

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Q.

Was driving left to right; am I correct?

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A. Q. A. Q.

Yes. Was it also moving in a -- towards his rear? No, it would be moving away, toward -Was the car moving away from Detective

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Q.

THE REPORTER: Yes. (Deposition Exhibit 11 was marked for identification.) BY MR. PARKINS: The photograph to which I'm

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Ciritella when he was shooting? A. Q. A. Q. A. Q. No. It would be coming right up to him. Right. So -I'm sorry. I'm not sure I understood. No. You -- you also made reference to glass. A. Q. Yes. I'm going to show you a photograph which you

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referring, Dr. Nordby, is the lower of the two photographs. A. Q. A. Yes. What does that depict? It shows that the white Jeep had a antitheft

device in place, called the Club, and that had locked the steering wheel in -- in position, and it also appears to have had a -- another standard safety lock mechanism, which kept the wheels from turning. Also, one can see the damage to the -- to the white Jeep as well as the tire tracks left by Patrol Car 1180. Q. Detective Ciritella will testify that as the

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reproduced in part of your report at Page -- supplemental report at Page 4. Would we have the court reporter mark that as I believe Exhibit 9. THE REPORTER: 10, Counsel. 10. MR. PARKINS: 10. Sorry. (Deposition Exhibit 10 was marked for identification.) MR. PARKINS: Anne, for purposes of the record, the only portion of Exhibit 10 is the photograph and not the accompanying text, and not the report.
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car turned the corner he could hear tires screaming and smell rubber burning. Based upon the evidence that you have seen, do you believe that to be accurate? A. Q. Yes. There has been some suggestion that this was

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a low-speed crash because the air bags on the properly car did not deploy. Where are -- what causes an airbag to deploy on a car? A. Well, in the design of this police

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Q. A. What does this photograph depict, Dr. Nordby? It shows a police officer pointing to glass

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interceptor the frame rails have the sensors which trigger the airbag, and most modern cars are designed to protect the passengers and occupants, drivers, as well, from injury during any impact. This particular impact damaged the right front fender of Patrol Car 1180 and that damage did not directly strike the front bumper with sufficient force to deploy the air bags. The failure of the bags to deploy is actually a design feature because the vehicle crumpled on the right side the way it was designed to do. Q. I'm going to show you a photograph, which

from a tempered glass side window on the corner of 5th and Harrison. Q. BY MR. PARKINS: Is this the glass to which

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you earlier referred when you were telling us about the proximity of the motor vehicle? A. Q. Yes. Okay. Thank you. Dr. Nordby, I'd like to now focus on what happened as the properly car turned the corner. I believe it's conceded that it struck a -- a Jeep Cherokee. A. Q. Yes. Can you tell us anything about whether the

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I'll ask the reporter to mark as Exhibit 12. (Deposition Exhibit 12 was marked for identification.) Q. BY MR. PARKINS: It's the upper photograph to

car was -- the stolen car was accelerating or decelerating? A. Yes. The evidence at the scene indicates

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which I would like you to refer. Does this photograph depict the damage to the properly car? A. right front. Q. Were the airbag sensors on this 2002 Crown Yes. This shows the crumple zone on the

that the car was accelerating. The -- the vehicle left rubber trail tread impressions from this acceleration. The 2002 Ford vehicle is designed to grip one side if the other side slips, in a type of traction control, and that left side wheel, the driver's side wheel, was -- was probably spinning and producing a lot of smoke and the other wheel was maintaining traction. Q.

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Victoria police interceptor impacted? A. Q. No. Does the absence of airbag deployment in this

I'm going to show you a photograph on Page 7

of your supplemental report. And this will be Exhibit 11?

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Jeep?

particular incident tell us anything at all about the speed at which the -- the properly car was going when it hit the

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A. Q.

No. Were you able to make any determination as to

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made a number of observations. The -- one pallet had instruct headrest and the other bullet had to go through Plexiglas in order to reach that area of the -- of the car occupied by the decedent. Q. The flex glass meaning the barrier between

what likely happened to Mr. Smith as the properly car hit the Jeep Cherokee? A. Yes, my examination of the windshield showed

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in the upper left-hand corner of that windshield that there was an impression typical of a blow from a forehead to the -- to the glass, and that -- that was documented photographically and examined. So in -- in my opinion when the vehicle struck the Jeep Mr. Smith bumped his head on the front of the windshield. MS. SULTON: I'm going to object and ask that that testimony be stricken because Dr. Nordby is not a biomechanical expert. MR. PARKINS: Okay. Q. Dr. Nordby, did you find any residual

the front and back seats? A. Q. Yes, that's correct. Did the car which -- the bullet which struck

the headrest also have to hit the Plexiglas first? A. Q. A. Yes. What happens when bullets hit Plexiglas? There is a -- in this particular case the --

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the jacketed hall owe point ammunition will expand, and it's designed to expand in -- in size. Also, Plexiglas in the experiments that I've done in the pass by shooting ammunition through Flex I glass indicate that there's a slight downward deflection when a projectile strikes that, because obviously when that projectile is going at a certain rate and it slows markedly when it strikes the object such as Flex glass. Q. Do you have an opinion as to whether

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material on the inside of the windshield at the point where that impact took place? A. Yes, as I recall, there was some grease and a

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pattern impression and I -- I can't recall what else we found. Q. Do you recall whether the autopsy report made

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Mr. Smith was sitting upright or slumped forward over the steering wheel when he was struck by these two bullets? MS. SULTON: I want to again reiterate my standing objection to any testimony being offered by this

any in -- suggestion as to whether there had been -A. Q. Yes. -- some impact involving Mr. Smith's

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please. reread? THE WITNESS: Please. MR. PARKINS: Ron, would you do that for me, forehead? A. Yes, the pathologist reported a contusion in

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Ron. (Record read.) THE WITNESS: The evidence shows that he was upright given the trajectories and the wound path described by the pathologist. Q. BY MR. PARKINS: And what do you mean by the particular witness because he is not qualified to render testimony about the cause or manner of death. Thank you, Counsel. THE WITNESS: Repeat. MR. PARKINS: Would you read it back, please,

the area that I believe hit the windshield. Q. Thank you. Let's move on. The medical examiner's report indicates that two shots struck Mr. Smith from the rear. Did you make any determination as to whether any of these bullets struck anything before hitting Mr. Smith? A. Yes. MS. SULTON: I'm going to object to this entire line of questioning about any injuries, the cause and/or manner of death of Mr. Smith, because Dr. Nordby is not qualified to render an opinion about physical injuries. He is not a medical doctor, has no education in the field of medicine, and is not board certified as a pathologist. So I will leave that as a continuing objection. MR. PARKINS: That's fine. MS. SULTON: Thank you, Counsel. MR. PARKINS: Would you like the question

trajectories? A. The trajectories meaning the incoming rounds

through the vehicle, the angles at which all of those potential bullets had to take in order to reach the occupied space. Q. Thank you. Let's focus, if we could, on the shot that struck Mr. Smith in the head. Do you have an opinion as to what trajectory that bullet took? A. Q. A. Yes. What trajectory did that take? Well, the bullet came in from the side. One

(Record read.)

THE WITNESS: Yes. We did a number of --

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has to be cautious in -- in putting together shooting scenarios in this sense because heads obviously move, but

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when we put together the information we have from the squad car itself and damage to the vehicle, the bloodstain pattern evidence which is present inside the vehicle, the medical examiner's account of the direction of the bullet impact through the decedent's head, we can come up with a trajectory, as you put it, that the bullet came from the right side or the passenger side of the car, and that the decedent was upright in the -- in the vehicle when this bullet struck his head. Q. The plaintiffs have alleged in this case that

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officers will testify that when they arrived at the stopped car he was slumped to the right. What does the physical evidence tell you about what happened? A. The physical evidence indicates that when the

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bullet struck the decedent's head his head was upright, and we can determine that by looking at the bloodstain patterns on the clipboard that are between the passenger and driver's seat in the front seat of the squad car, that allows us to form a point of origin for those -- for those blood -- blood stains. And the second feature is that there's projected blood, which can only come from a compromised artery, for example, and that blood is projected behind and to the right side of the driver's backrest, and that would place the decedent slumped to the right at the time those projected stains struck the partition. Q. The plaintiffs in this case allege that

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Mr. -- that the defendant officers shot Mr. Smith after the police car had come to a stop. Do you have any opinion as to whether the car was still moving when the shot which hit him in the head was fired? A. The movement of the vehicle is not something

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that is captured by an analysis of an impact of an injury or damage to the -- to the vehicle itself. It occurs to me that we have to consider the -- the scene, as well, the glass, the fractures of different types of glass, the striking the Jeep and the movement of the Jeep, as well, and the fact that for that bullet to have struck the decedent in the head, that there had to be a relationship between -between him and the vehicle. And that's what we can look at the bloodstain patterns to tell us. Q. Is it your understanding that when the car

Mr. Smith on 5th Street was trying to drive away from Detective Ciritella and that Detective Ciritella was never in danger. The plaintiffs further allege, as I've mentioned, that the detectives -- the defendants, excuse me, shot and wounded Mr. Smith after the car had stopped. The plaintiffs -- excuse me. The defendants claim that Mr. Smith narrowly missed Detective Ciritella as he drove in his direction. He accelerated around the corner, and that the defendants never fired at the car -- at the car after

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car? A. correct. Q. If the car had been stopped and Detective
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the car was stopped. Which version does the physical evidence support? A. The physical evidence clearly supports the

was on Harrison Street it was moving northbound? A. My understanding is that it was moving

northbound. Q. Where were detective Ciritella's shell

latter version. Q. You have expressed a number of opinions today

casings found vis-a-vis the end point of the -- of the trip, the car? A. They were found toward the back end of the

about the most likely event based on the physical evidence. Have those opinions been expressed to a reasonable degree of scientific probability? A. Yes. MR. PARKINS: Thank you. I have nothing further. Do you want to take a short break? MS. SULTON: If the doctor would like to. THE WITNESS: Yeah, short. I'm not feeling very good. MS. SULTON: Off the record. THE VIDEOGRAPHER: We're going off the record. The time is 2:43 p.m. Please stand by. (Short recess.) THE VIDEOGRAPHER: We're back on the record. The time is 2:49 p.m. Q. BY MS. SULTON: Good morning, Dr. Nord -- or

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car, if I'm understanding your question correctly. Q. Were they found south of the front of the

South of the front of the car, that's

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Ciritella had fired his weapon, where would you have expected to find them? A. I would have expected to find them either in

the same area as the car or north of the car. Q. What does the fact that they were found south

of that area tell you? A. Tells me that the car was moving and

continued to move after those shots were fired. Q. Okay.

The plaintiffs in this case allege that

Mr. Smith was slumped over the driving -- over the steering wheel. The defendants will testify -- or the police

Draft Copy
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good afternoon, I should say. Mm-hmm.

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I am reserving all of the objections I've

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made prior to the point at which we began your deposition. Wanted to go through just a couple of issues with you, if I may. Do you know whether or not Mr. Ciritella is right- or left-handed? A. Q. A. Q. 2003? A. Q. That's correct. Do you have any idea of how many people were No. Not off the top of my head. When did you look at Patrol Car 1180? It was in I believe June of 2006. And this incident occurred September 13th of

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summer of 2006 did you see any of the photographs that the police officers or someone working on behalf of the police officers had taken of the car showing the trajectory stakes that some refer to as dowel sticks that had been put through the car and so forth? A. Q. Yes, I did see some of those photographs. And -- and did you see the photographs where

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someone had taken a piece of paper and tape and stuck it on top of the headliner and wrote on the word headliner? A. It's not ringing any bells for me, but I

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might have. I don't recall. Q. You don't deny that there might be some

inside that car before you saw it in the summer of 2006? A. Just from the photographs that were supplied

photographs in existence that show someone placing what appears to be kind of a clear tape kind of like a masking -kind of like a mailing tape and using that against the headliner and kind of sticking pieces of paper up there to mark certain parts of the headliner? A. possible. Q. Now, is it fair to say that when someone I -- I don't recall that, but it's certainly

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to me showing the work that had been done, but -- but the exact number I'm not sure, but I would -- I would venture to say that several people had been in there. Q. When you looked at the car did you see the

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car as it was -- the state of the -- the physical state of the car as it was on September 13th, 2003, within hours of the shooting? A. No one would be in that position unless they

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takes a wood dowel to try to visually show the trajectory of a bullet that they are going to -- although minutely, they're going to change the configuration of the holes through which they stick those wooden dowels? A. The answer is it depends on the material, and

were at the scene of the shooting and able to look at the vehicle at that time. Q. I'm sorry, Doctor. Let me try to sharpen my

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question a bit, if I could. A. Q. Sure. When you looked at the car it had already

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to the extent that one was doing a microanalysis, for example, of changes or effects on the margin of an entrance wound, for example, or an entrance to a vehicle, it might affect the -- the deposit of trace materials that were available only to the aided eye microscopically, but the presence of trajectory rods through metal bullet holes in cars through glass, Plexiglas and so forth doesn't alter the hole in any significant way. Q. Is it true, Doctor, that you can't tell when

been cut up by other -- I assume police investigators. A. I saw evidence that prior processing had

occurred, yes. Q. A. Q. And it was extensive, correct? Yes. And some of that processing included using

some kind of device to actually cut the metal off one of the fenders, correct? A. Yes, I believe the fender was cut in an

each of the 31 shots were fired at the intersection of 5th and Harrison Street? A. Q. Yes, that's correct. So you don't know when the shot was fired

effort to find one of the projectiles, the bullets. Q. And the same thing had happened to at least

that actually left a bullet lodged in Mr. Smith's brain? A. Q. I'm not sure I understand your question. There were -- you know there were 31 shots

one of the doors on the car, as well, where they had taken the -- taken the -- part of the -- well, had taken the door apart to look at the inside of the door of the car between where you have the -- what I call the creature comfort part of the door and the mechanical inner workers of the door for the window and so forth? A. Yes, I think the -- there was at least one of

that were fired at the intersection of 5th and Harrison Street. A. Q. Yes. You can't tell which of those 31 shots were

fired at any particular point in time or the sequence of those shots, correct? A. Only -- only in general terms. We can't --

the rear doors, maybe both rear doors, where the -- the

panel -- interior panel was -- was removed and was loose in the back see the area. Q.

And prior to you looking at the car in the

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and the reason I -- I want to be -- be clear here is that the -- the factors that involve moving the vehicle's

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movement, the fact of the bloodstain pattern, the impact staining and the arterial spurt deposition, would indicate that at the time after that shot was fired the decedent went -- fell over to his right, but I couldn't be -- you couldn't tell whether the 14A or 11A through the Plexiglas, for example, came first. Q. You don't know when out of 31 shots, which

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where it came from, when it got there? How do you know that? A. The volume of the glass -- again, the answer

is it's an inference. The volume and the shape of the glass shows that it's tempered glass. Tempered glass breaks into little squares. Q. What do you -- what evidence do you have

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one of those 31 shots in terms of the timing sequence -which one of those 31 shots is the one that was shot into Mr. Smith's head? A. Well, again, forgive me if I'm not being
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other than that Photograph No. 10 that shows that that is the Plexiglas -- I'm sorry -- the tempered glass to which you refer? A. Q. A. Q. Nothing other than visual identification. Visual through photographs? Correct. You are assuming, and correct me if I'm

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responsive, but there is a certain inference, and again, it's an inference based on the total -- total evidence here, that if that shot to his head was the first one that struck, then you would expect to see the scene appear quite differently than it does. Q. A. Q. A. How? I guess that's -- that's what I'm -How? Well, for example, if the shot incapacitated
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wrong, that that is the tempered glass that came from the window on the passenger side of the vehicle? A. I think the answer is yes, because the -- of

the orientation of the vehicle to the -- to the glass at the side. Q. Given the volume of glass that you're looking

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him immediately, then one would expect the car to be in a different position. There wouldn't be the trail of broken glass here and the position of the car further north. So the -- the vehicle kept moving. Q. Let me ask you briefly if I could about the
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at at Exhibit No. 10, do you know how much glass was left in the window of the car? A. I looked at the -- each of the windows of the

vehicle as part of my examination, and there -- there was very little if any glass left in that passenger side window.

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not? MS. SULTON: No. THE WITNESS: Ciritella and Brown and I believe -- can't recall, but there are some other photographs that were part of this set that showed the -the glass more -- in a close-up. Q. BY MS. SULTON: Let me repeat the question. it -MR. PARKINS: Should I help the witness or broken glass. You were asked to refer to an exhibit that shows a police officer pointing at what appears to be some broken glass on the street. A. Q. Yes. Can you pull that out and tell us what

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Q. How could you know the angles of bullets going through the passenger side window if there is no glass left in that window? A. I never said anything about angles with

passenger side windows, and the answer is you can't. When tempered glass is struck, sometimes the first shot will remain and the window will checker, but traditionally radial and concentric circles -- radial fractures and concentric circles are used to establish the order of shots. Well, that doesn't work with tempered glass and it doesn't work with safety glass. So you can't tell. Q. Can you tell whether or not the projected

exhibit number that is, sir. A. Q. It's Exhibit 10. Thank you. So when looking at Exhibit 10, did you talk to that police officer during your work on this case? A. I spoke with -- I'm trying to remember. Was

blood about which you testified came from Mr. Smith's head, his arm, his wrist, or any other place where she was shot? A. Q. A. Yes. How can you do that? Under the microscope I observed brain tissue

and soft tissues associated with brain material. Q. A. Q. In the projected blood? Yes. Let me ask you about the bullet casing that

Did you speak with the officer who is pictured in Exhibit 10? A.

I -- I don't recognize him from the

photograph. Q.

How do you know what kind of glass that is,

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A.

was found inside the car. You testified that Mr. Ciritella's gun would discharge a shell back and toward the right, correct? Correct.

13 (Pages 49 to 52)

Case 1:04-cv-01254-GMS

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Q.

Do you know whether or not Mr. Ciritella

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and apply physical laws. So -Q. That science as a method can help us prove

shoots with one hand or two hands? A. I don't know how any of these shots were

something false, correct? A. It -- it's certainly easier to prove

accomplished. I mean, I don't. Q. Assuming that the car was close enough to

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something is not true than it is to prove that something is true. However, if you prove something is not true, you've just proved that something is true. There's the par docks. Q. You would agree with me that no

Mr. Ciritella at the point at which his shell casing ended up in the middle of the car, would the window have been down or up at that point? A. From -- from looking at the glass in the

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window channel when I examined the vehicle, the glass would have to be gone. Q. So is it fair to say, then, Dr. Nordby, that

reconstruction can explain every element of an event, correct? A. Q. That is correct, yes. And you would agree with me that when using

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the first bullet shot by Mr. Ciritella shattered the glass? A. I couldn't speculate on which bullet

the scientific method the facts and data considered as you reach your conclusion -- in other words, in reaching your conclusion when using a scientific method, your conclusion is only as good as the facts and data you have considered? A. Q. That's correct. So if the information you considered is

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shattered the glass. Q. But it's fair to say that the first bullet,

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since the window was up, would not have resulted in that shell casing being inside the car, correct? A. Q. That's correct. Can you tell whether or not Mr. Ciritella was

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incorrect, then your conclusion is incorrect? A. Q. A. Well, that doesn't follow. Why is that? Because we could get the correct answer for

walking or running when he was firing his gun? A. Q. No. Does it make a difference as to the shell

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pattern or the -- or the placement of the shell casings on the pavement?

completely accidental reasons. We can -- we can use faulty method and incredible errors and still come up coincidently with a true conclusion. So what's interesting in science is

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