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STATE OF WISCONSIN

CIRCUIT COURT
BRANCH IV

OUTAGAMIE COUNTY

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-------------------- - ----------------------------- -- ------STATE OF WISCONSIN,

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Plaintiff,

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CASE NO. OO-CF-403

vs.
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KENNETH A. HUDSON,

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Defendant.
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--- -- -- ---- ------ -- ---- - --------- -- --- - - - ----- -- -- ----- -- - TRANSCRIPT OF HEARING
October 5, 2005

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--- --- ----- - --- -- ------- --- ---- -- ------ --- -- -- ----- -- -- ---

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Transcript of the proceedings had in the above action
before the HONORABLE HAROLD V. FROEHLICH, Circuit Court
Judge, Branch IV, Outagamie County, held at the Outagamie
County Justice Center, in the City of Appleton, Outagamie
County, Wisconsin, commencing on the 5th day of October,
2005.

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APPEARANCES:

CARRIE A. SCHNEIDER, District Attorney,
Outagami e County, appeared on behalf of the
Plaintiff.
DAVID D. COOK, Attorney at Law, appeared
on behalf of the Defendant.
KENNETH A. HUDSON, Defendant, appeared
te lephonically.

25

JEANNE L. SPOEHR, RMR/CRR
OUTAGAMIE COUNTY JUSTICE CENTER
(920)

832-5151

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I N D E X

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Page 5
Page 24

Direct Examination by Mr. Cook
Cross-Examination by Ms. Schneider

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7
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E X H I B I T S

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IDENT'D OFR'D REC'D

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7

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#1 - Laboratory report

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#2 - 4/12/05 letter

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#3 - Forensic test results

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#4 - 7/7/05 letter

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2

JEANNE L. SPOEHR, RMR/CRR
OUTAGAMIE COUNTY JUSTICE CENTER
(920)

832-5151

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(In open court commencing at 11:12 a.m.)

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THE DEFENDANT:

3

THE COURT:

4

THE DEFENDANT:

5

THE COURT:

Hello?

Mr. Hudson.

Yes, Your Honor.

I will call the case now.

This

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is the State of Wisconsin versus Kenneth A. Hudson,

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case No. 00-CF-403.

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the record.

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MS. SCHNEIDER:

Carrie Schneider appearing on

behalf of the state, Your Honor.

11
12

Please state your appearances for

MR. COOK:

Mr. Hudson appearing by counsel,

David Cook, and he is present by the telephone.

13

THE DEFENDANT:

Your Honor, before we get

14

started, my lawyer had told me that he filed a motion

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and that I'd be present in court.

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be able to consult before the hearing.

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quickly speak to my attorney and consult with him,

18

please?

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20

THE COURT:

Sure.

Can I just

He can come up and speak

to you --

21

THE DEFENDANT:

22

THE COURT:

23

He told me that we'd

Thank you.
on the telephone.

telephone and talk to him.

Pick up the

I'll leave the courtroom.

24

(Recess had from 11:15 a.m. to 11:17 a.m.)

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THE COURT:

You're going to have to keep that
3

JEANNE L. SPOEHR, RMR/CRR
OUTAGAMIE COUNTY JUSTICE CENTER
(920} 832-5151

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microphone about four inches from where you are.

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THE DEFENDANT:

3

MR. COOK:

Thank you.

Your Honor , before we begin, I

4

just want to note for the record an objection to the

5

fact that Mr. Hudson has to appear by telephone.

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THE COURT:

Objection's noted.

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THE COURT:

Ms. Schneider.

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MS. SCHNEIDER:

9

Thank you, Your Honor.

As

the Court has been made aware, I think after the last

10

hearing we had on September 1 of 2005, during which

11

time some of the DNA testing and additional testing by

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defense counsel was explained, the Court then issued an

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order indicating the Court - - based on the new

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information that had been provided, the Court's

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position was not changed as to this issue, but did

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indicate that if either party wanted additional

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explanation or further statements made, that the Court

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was asking that we bring Mr. John Ertl from the State

19

Crime Lab to a hearing where it could be further

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explained for the Court's benefit, and the Court wanted

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that hearing before October 10.

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The state's aware at this point then, Attorney

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Cook did contact the Court and asked that such hearing

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be scheduled, which is why we're here today .

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is present, has been subpoenaed by Attorney Cook for
4

JEANNE L. SPOEHR, RMR/CRR
OUTAGAMIE COUNTY JUSTICE CENTER
(920)

832-5151

Mr. Ertl

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the hearing, so I think it's most appropriate that he

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call Mr. Ertl.

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explanation or at least the opportunity in a subsequent

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hearing to argue some relevancy or issues related to

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these testings.

6

As it appears, he may want further

MR. COOK:

That's correct, Your Honor.

.

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THE COURT:

Mr. Ertl, would you come up,

please?

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9

JOHN ERTL,

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having been first duly sworn on oath to testify the truth,

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testified as follows:

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THE CLERK:

You do solemnly swear that the

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testimony you shall give shall be the truth, the whole

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truth and nothing but the truth, so help you God?

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THE WITNESS :

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THE CLERK:

I do .
Please be seated.

If you would

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state and spell your first and last name for the

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record.

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THE WITNESS:

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My name is John Ertl, J-0-H-N,

E-R-T - L.

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DIRECT EXAMINATION

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BY MR. COOK:

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Q

Mr. Ertl, how are you employed?

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A

I'm a DNA analyst at t he State Crime Laborato ry in

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Madison.
5

JEANNE L. SPOEHR, RMR/CRR
OUTAGAMIE COUNTY JUSTICE CENTER
(920)

832-5151

 1

Q

And how long have you been so employed?

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A

Since January of 2000.

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THE DEFENDANT:

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the witness, Your Honor.

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THE COURT:

I can't hear the testimony of

You're going to have to speak up.

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Those microphones are at top volume, and they ' re not

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doing very well.

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BY MR. COOK:

9

Q

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Now , Mr. Ertl, you were involved in the analysis of the
evidence collected in this case; correct?

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A

Yes, I was .

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Q

And you testified previously at the trial and in

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another proceeding in this case; is that correct?

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A

Correct.

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Q

And did you bring your State Crime Lab file with you

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today?

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A

Yes, I did.

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Q

Now , as part of your more recent work on this case, you

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were involved in the processing and dividing and

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sending out of additional evidence for DNA testing as

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part of the post-conviction DNA proceedings; correct?

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A

That's correct.
THE DEFENDANT:

I can't hear nothing.

don't know if there's anybody talking or not.
THE COURT:

There's no one talking.
6

JEANNE L. SPOEHR, RMR/CRR
OUTAGAMIE COUNTY JUSTICE CENTER
(920)

832-5151

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THE DEFENDANT:

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BY MR. COOK:

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Q

Okay.

Mr. Ertl, I handed you a document that has been marked

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for identification as Exhibit 1.

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that document is?

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A

Can you identify what

It's a laboratory report that I wrote.

It's dated

February 1, 2005.

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8

Q

And what does that report address?

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A

It itemizes various items of evidence that I examined.

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It tells about the results of those examinations and

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then the disposition of the evidence.

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Q

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14

And those items of evidence, are those the items that
you sent out to different labs for further DNA testing?

A

Right.

As explained in the results, it talks about

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what the items were; that I made divisions of various

16

bits of them, repackaged them for shipment to two

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different laboratories.

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Q

Okay.

Now, some of those materials went to the

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Molecular Forensics Lab at the University of Maine;

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correct?

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A

That's correct.

22

Q

And the other materials went to the Reliagene

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laboratory in New Orleans?

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A

That's correct.

25

Q

Okay.

Some of the evidence that you processed that are
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JEANNE L. SPOEHR, RMR/CRR
OUTAGAMIE COUNTY JUSTICE CENTER
(920)

832-5151

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addressed in Exhibit 1 included samples that were

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collected from Mr. Hudson's body; correct?

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A

That's correct.

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Q

And how were those samples from Mr. Hudson's body
designated generally?

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6

A

They were given item designation T.

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Q

Okay.

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A

Items Tl , T2, T3, T4, TS.

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Q

Okay.

And how many T samples were processed by you?

Now, just for clarification, can you tell me

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from what area of Mr. Hudson's body each of those

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samples were collected from?

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A

Yes.

Tl is from the left foot, T2 from the right hand,

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T3 from the left arm, T4 from the right foot, and TS

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from left chest.

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Q

Okay.

Now, was there one additional sample that was

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collected from Mr. Hudson's body on a gauze pad that

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you also were involved in processing?

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A

Yes.

19

Q

And how was that designated?

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A

That's item U.

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Q

And where was that collected from?

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A

The left leg.

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Q

Okay.

Had there been previous testing of these samples

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by your lab to determine the nature of the stains that

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were on these swabs?
8

JEANNE L. SPOEHR, RMR/CRR
OUTAGAMIE COUNTY JUSTICE CENTER
(920) 832-5151

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A

Yes, there had been.

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Q

And what had that testing shown?

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A

As far as the swabs, items Tl through TS, I had done a

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presumptive test for the presence of blood.

Each of

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those were positive .

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specific test for human blood on items Tl, T2 and T4,

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and those were also positive.

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extract human DNA from items Tl and T2.

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any human DNA recovered from item Tl on two attempts,

In addition, I did a more

I also attempted to
I did not get

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a nd I did get human DNA recovered from item T2, which I

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then typed and found to be a mixture of t wo o r more

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individuals.

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consistent with Mr. Hudson's DNA standard, and the

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minor -- I take that back -- it was consistent with the

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DNA from Shannon's (sic) standard and a minor

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contributor was consistent with Mr. Hudson' s DNA

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standard .

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THE DEFENDANT:

THE COURT:
louder?

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23

Could you speak up a little bit

Do your best.
THE WITNESS:

Should I be speaking into the

phone for him to hear me?

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Can he speak up a little bit,

Your Honor, please?

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21

The major contributor to that mixture was

THE COURT:
picks up.

Well, that's the speaker where it

Yes.
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JEANNE L. SPOEHR, RMR/CRR
OUTAGAMIE COUNTY JUSTICE CENTER
(920)

832-5151

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THE DEFENDANT:

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hear.

I just want to be able to

That's all.

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BY MR. COOK:

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Q

Now, of the samples that you were involved in that were

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collected from Mr. Hudson's body, which of those

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samples were sent to the Maine lab?

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A

Items Tl, T2, T3, TS and U.

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Q

And then which sample collected from Mr. Hudson's body
was sent to the Reliagene lab?

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A

T4.

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Q

Okay.

Now, after February 1 of 2005, when you prepared

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this initial processing of evidence, did you have

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occasion to send a second package of evidence to the

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Molecular Forensic Lab in Maine for testing?

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A

Yes, I did.

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(Exhibit 2 marked)

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BY MR. COOK:

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Q

Mr. Ertl, I handed you a document marked for

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identification as Exhibit 2.

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document?

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A

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Can you identify that

It's a letter written by me that accompanied the second
mailing of evidence to the Maine laboratory.

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Q

And the date of that?

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A

April 12, 2005.

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Q

And what -- what evidence was sent with that, in that
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JEANNE L. SPOEHR, RMR/CRR
OUTAGAMIE COUNTY JUSTICE CENTER
(920}

832-5151

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second packaging, that relates to evidence collected

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from Mr. Hudson's body?

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A

The second mailing of evidence were things derived from

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Tl, and those things were my two attempts to extract

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DNA from the swab, also manipulation control, that went

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along with those extraction attempts, and also a

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standard from Mr. Hudson.

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Q

Okay.

Now, the extracts that you had previously

prepared from the Tl evidence, how were those

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designated in this second mailing?

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A

The extracts were designated Tlb - 1, Tlb - 2.

12

Q

And the fact that there are two reflects that you made

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two attempts to extract DNA from the Tl evidence;

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correct?

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A

That's correct.

16

Q

And then how was the blood sample from Mr. Hudson

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designated in this mailing?

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A

As item Qlb.

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Q

After the DNA testing was completed by these two labs,

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did you have an opportunity to . review the testing

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results of those labs?

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A

Yes, I did.

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(Exhibit marked)

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THE DEFENDANT:

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Is there anybody talking,

Your Honor?
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JEANNE L. SPOEHR, RMR/CRR
OUTAGAMIE COUNTY JUSTICE CENTER
(920)

832-5151

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THE COURT:

No, there isn't.

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THE DEFENDANT:

They got construction going

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on, Your Honor.

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all the sounds, and the jackhammers are going.

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BY MR. COOK:

6

Q

Okay.

With the windows, I can't hear with

Mr. Ertl, I've handed you two documents.

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Looking at what's been marked for identification as

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Exhibit 3, can you identify wh~t that is?

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A

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11

These are the test results from the Rei iagene
laboratory .

Q

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And can you identify what's been marked for
identification as Exhibit 4?

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A

These are the test report from the Maine laboratory.

14

Q

Okay.

15

And the Maine laboratory tests were conducted by

Dr. Irving Kornfield; correct?

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A

That's correct.

17

Q

And did you also have a chance to speak with Dr.

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Kornfield regarding his testing procedures and his

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results?

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A

Yes, I did.

21

Q

Now, the reason that these samples were sent from Mr.

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Hudson's body to the University of Maine forensics lab

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was to determine if the blood samples could be

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identified as belonging to any animal species; correct?

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A

That's correct.
12

JEANNE L. SPOEHR, RMR/CRR
OUTAGAMIE COUNTY JUSTICE CENTER
(920)

832-5151

 1

Q

Did the Maine lab detect any animal species other than
human?

2
3

A

No, they did not.

4

Q

Did the Maine lab detect human DNA in any of the

5

samples that they tested?

6

A

Yes, they did.

7

Q

What samples were those?

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A

Item Tla, item Ul, item Tlb-2, and item Qlb .

9

Q

So four items; correct?

10

A

Correct.

11

Q

And one of those items was Mr . Hudson ' s blood standard;

12

correct?

13

A

Right.

14

Q

Okay.

Now, did the human DNA sequence --

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THE DEFENDANT:

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BY MR. COOK:

17

Q

18

Speak up, Cook.

Did the human DNA sequence -f rom the evidence samples
tested by the Maine lab all match each other?

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A

They all had the same sequence , correct .

20

Q

Okay.

21

And did they also match the DNA sequence for Mr.

Frudson?

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A

Yes , t h ey di_d .

23

Q

So the four DNA sequences were identical; correct?

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A

Correct.

25

Q

Could Mr. Hudson be excluded as the source of the DNA
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JEANNE L. SPOEHR, RMR/CRR
OUTAGAMIE COUNTY JUSTICE CENTER
(920)

832-5151

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found in the sample?

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A

No, he could not.

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Q

You could not tell for certain , however, that the DNA

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found in the evidence samples is DNA from Mr. Hudson;

5

correct?

6

A

No .

According to Dr . Cornwald (sic ) , t here is no

7

individualization in his tests.

8

species, human versus deer versus dog.

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for very large differences.

He's looking

He's not able to detect

differences between one human and another necessarily.

10
11

He is looking for a

Q

Okay.

Now, this DNA testing was different than the DNA

testing that's conducted by your lab; correct?

12

13

A

That's correct.

14

Q

What -- what kind of DNA testing was used by the
forensics lab in Maine?

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16

A

They're looking at mitochondrial -- mitochondrial DNA
sequences.

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18

Q

And your lab uses what kind of testing?

19

A

We look at nuclear DNA sequences.

20

Q

Okay.

Now , given that these evidence samples were

21

material that was collected on swabs that were taken

22

off of Mr . Hudson's body, would it be unusual to find

23

some of Mr. Hudson's DNA on those swabs?

24

A

No, that wouldn't be unusual.

25

Q

That could have come from his sk i n, for example, or -14

JEANNE L. SPOEHR, RMR/CRR
OUTAGAMIE COUNTY JUSTICE CENTER
(920)

832-5151

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A

Exactly.

2

Q

-- DNA from his body.

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Okay.

THE DEFENDANT:

4

BY MR. COOK:

5

Q

Speak up, Cook.

If the state wanted to determine whether the human DNA

6

from these samples , which

7

matched Mr. Hudson's DNA, if they wanted to determine

8

whether those sequences also matched the victim's DNA

9

in this case, could they do that?

Hi

A

The state could not.

the sequence of which

We don't do that, mitochondrial

11

testing.

12

(sic) and got her sequence, using Dr. Cornwald ' s

13

test, you could determine whether or noG she could be

14

included or excluded.

15

Q

In theory, if you ran a standard from Shannon
(sic.2,

So the State Crime Lab couldn't do this testing, but

16

the State of Wisconsin could find a lab that does

17

mitochondrial DNA testing and provide a standard from

18

the victim and determine if these samples match that

19

standard; correct, if the sequences --

20

A

That's correct.

21

Q

Okay.

I want to focus on the results obtained by the

22

Maine lab for the Tl sample.

23

Forensics Lab find Mr. Hudson's DNA in Tl, in Tla and

24

Tlb-2 samples, when the State Crime Lab found no DNA in

25

item Tl?

Why did the Molecular

15

JEANNE L. SPOEHR, RMR/CRR
OUTAGAMIE COUNTY JUSTICE CENTER
(920)

832-5151

 c·
THE DEFENDANT:

1

2

BY MR. COOK:

3

Q

Speak up, Cook, please.

when you attempted to test that material?
THE COURT:

4

Would you bring that microphone

just a little closer?

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6

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A

The Maine laboratory was looking for mitochondrial DNA.

7

They would extract a sample the same way I would

8

extract a sample.

9

that sample.

Their next step would be to amplify

So if there were anything there at all,

they would make more of it.

10

My step, after extracting the DNA, is to find out

11

12

how much I have.

So my method is intrinsically less

13

sensitive than their method should be.
The other -- another reason would be that,

14

15

typically, mitochondrial DNA sequences occur multiple

16

times in each cell, whereas nuclear DNA sequences only

17

occur once in each cell.

18

its set of DNA, but it can have numerous copies from

19

the numerous mitochondrial that the cell could have.

20

So again, looking for nuclear DNA would be less
sensitive than looking for mitochondrial DNA.

21
22

The cell has one nucleus with

Q

And that would explain why the Maine lab might find Mr.

~

or might find human DNA in the samples that ~

23

Hudson's

24

they tesced tha

25

correct?

you did not find human DNA in;

16

JEANNE L. SPOEHR, RMR/CRR
OUTAGAMIE COUNTY JUSTICE CENTER
(920)

832-5151

 c~
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A

That's correct.

And if we look at my two attempts at

2

item Tl, they also looked at those items Tlb-1 and

3

Tlb-2.

4

DNA.

5

In neither case could I detect it.

In one case, they were not able to detect human
In the other case, they were able to detect it.

So in my two attempts, I could not detect nuclear

6

In my same two attempts, in one attempt they were

7

DNA.

8

able to detect mitochondrial DNA, and in the other

9

attempt they were not, suggesting there is a very
limited amount of DNA there to begin with.

10

11

Q

Okay.

Now, focusing on the results that were obtained

12

by the Maine lab for the T2 sample, why would the

13

Molecular Forensics Lab find no DNA in item T2a from

14

the right hand when the State Crime Lab found a mixture

15

of human DNA on the T2 sample?

16

A

Now, having said that , the mitochondrial system should

17

be more sensirive.

18

ampli f ication step.

19

inhibitory substances preBent that would prevent them

20

from seeing the DNA that's there.

21

or not there ' s inhibitory substances there, but that

22

would be my best guess as to why I could detect it

23

using a non-amplified process whereas they couldn't

24

detect it using -an amplified process .

25

It does depend on that
So it ' s requiring that there 's n o

I don't knpw whether

So we're using two different methodologies to try
17

JEANNE L. SPOEHR, RMR/CRR
OUTAGAMIE COUNTY JUSTICE CENTER
(920)

832-5151

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to see it, and we're looking for two different types of

2

DNA.

3

by different contaminat i ng substan ces in the samples .

4

Those two different methodologies may be affected

Another explanation for that may be, I took a

5

cutting from a swab.

6

from a swab.

7

could very well be different.

8

homogeneous mixture of the sample.

9

however, the person who rubbed the reddish-brown

They took a different cutting

The amount of DNA on those two cuttings
The swab's not a
It's -- it's

10

material off of Mr. Hudson's skin, did they rotate the

11

swab while they were doing that or -- or how it was

12

done, I don't know.

13

The size of the cutting that we took, I may have

14

taken a larger cutting, they may have taken a smaller

15

cutting.

16

inhibitory substances in it; they may have taken one

17

that had more.

18

know for sure, but they're possible explanations.

19

Q

Okay.

I may have taken a cutting that had fewer

None of those things you can really

Now, looking at the -- the lab results from the

20

Molecular Forensics Lab generally that found no DNA

21

whatsoever, what -- what items did those include of the

22

samples that were collected from Mr. Hudson's body

23

where they found no DNA?

24

25

A

They found no DNA in T2a, T3a , T5a; one of my extracts
from Tl; both of m

manipulation controls, which are
18

JEANNE L. SPOEHR, RMR/CRR
OUTAGAMIE COUNTY JUSTICE CENTER
(920)

832-5151

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supposed to not have DNA in them; and then also from

2

Qlc, another manipulation control, which should not

3

have DNA in it.

4

Q

And looking at the Reliagene lab results, with regard

5

to item T4, which was tested by the Reliagene lab, what

6

results did they have as to that sample?

7

A

They also did the same presumptive testing for blood

8

that I did, and they were also positive in that test

9

for presumptive -- presence of blood.

They then

10

extracted a cutting from the -- the swab and were

11

unable to recover any human DNA from that.

12

put in their report here, it produced no results due to

13

insufficient or excessively d~raded DNA.

14

Q

Okay.

And they

So with respect to item T4, tested by Reliagene

15

and items TS, T3, T2, and one of the Tl items, all of

16

those testing results showed no human DNA; correct?

17

A

That's correct.

18

Q

What are the possible explanations as to why no DNA

19
20

would be detected in these samples?
A

Well, in the case of the Maine lab's work, where they

21

were specifically looking for any creature from this

22

planet that would have bl ood and they didn't see any,

23

that would suggest it ' s not animal blood there .

24

would suggest the Reliagene's c onclusion that there's

25

insufficient amount o f DNA or the DNA that's there is
19

JEANNE L. SPOEHR, RMR/CRR
OUTAGAMIE COUNTY JUSTICE CENTER
(920)

832-5151

That

 C

too highly degraded to be detected or recovered.

1

2

Q

Now, in terms of the possibility that the DNA has been
degraded, what would cause DNA

3
4

C

A

o be degraded?

Typically we think of microbia l action.

The blood

5

is -- think of it like a food item .

You leave it out;

6

it rots.

7

has been broken down and converted into microbial

8

components.

9

degradation.

Once that's happened, the human portion of it

That's what we normally think of as
Exposure to u traviolet light , such as

10

sunlight, can also cause degradation to the DNA.

11

Exposure to certain chemicals, such as bieaching

12

solutions or peroxides, can cause degradation very

13

quickly.

14

Q

Okay.

Were any of those factors, to your knowledge,

15

operative in this -- with these samples, or could they

16

have been operative with these samples?
THE DEFENDANT:

17
18

A

Speak up, Cook .

I wouldn't think that there would have been sufficient

19

time for bacterial degradation to have occurred, and I

20

wouldn't think there would have been sufficient time

21

for ultraviolet degradation to have occurred, but

22

certainly any amount of time is sufficient to get

23

chemical degradation.

24

25

Q

Is there a difference between chemical degradation and
the possible presence of inhibitory substances that you
20

JEANNE L. SPOEHR, RMR/CRR
OUTAGAMIE COUNTY JUSTICE CENTER
(920)

832-5151

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referred to earlier?

1

2

A

Yes, there is.

3

Q

What is that difference?

4

A

The difference is if it's chemical degradation, the

5

chemical is acting on the DNA molecule itself, cleaving

6

it, breaking it down, so it's no longer DNA.

7

i s an inhibitory substance present, then that's not

8

acting on the DNA molecule itself .

9

methodology that I'm going to use to detect it.

If there

That's acting on my
Sort

10

of 1 ike spraying black spray paint over the sec.u ri ty

11

camera.

12

at.

13

I've just altered the camera's ability to see it.
An inhibitory substance has been, in effect, my

14
15

I haven't altered what the camera's looking

methodologies rather than the DNA molecule itself.
Q

In your work as a DNA analyst, have you run into

16

various types of inhibitory substances that might come

17

into play in the examination of this kind of sample?

18

A

19

There are known substances that will affect my ability
to detect it, yes.

20

Q

What are those substances , for example?

21

A

Well , the main thing wou l d be something that ' s going to

22

affect the enzyme I'm g oing t o use to ampli f y my DNA.

23

It's sensitive to salt concentrations.

24

to things you ' d think of as mi neral

25

ions, magnesium ions , divalent metal ions will affect

It ' s sensit ive

eposit s .

21

JEANNE L. SPOEHR, RMR/CRR
OUTAGAMIE COUNTY JUSTICE CENTER
(920)

832-5151

Calcium

II

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1

it.

2

protein nature of that enzyme, things such as battery

3

acid, caustic chemicals like drain cleaner, oven

4

cleaner, and again things that would destroy DNA would

5

also affect my reaction, so bleach, peroxides,

6

whitening agents in laundry detergents.

7

amounts of detergent itself could cause this .

8

Certainly anything that's going to affect the

Excessive

And then there is a whole list of things of

9

chemical substances that you wouldn't think of normally

10

when you think of kitchen chemistry.

11

are the chemicals in these things we use every day?

12

Most of them are benign, but if there's anything that

13

says, call your poison control person if you inge st it,

14

that's probably going to be a good likely substance

15

that's going to affect my ability to detect the DNA

16

because I ' m using a biological enzymatic reaction to

17

identify the DNA that ' s there and to type it.

18

quite a long list.

19

Q

You know, what

So it's

Now, when you packaged these various samples off to --

20

to be sent off for testing, did the samples appear to

21

be blood-stained?

22

A

They did.

23

Q

And you said that preliminary testing showed that these

24

samples actually were blood; correct, or presumptive

25

for blood?
22

JEANNE L. SPOEHR, RMR/CRR
OUTAGAMIE COUNTY JUSTICE CENTER
(920)

832-5151

 C

C

1

A

That's correct.

2

Q

And in such samples , would you expect to find DNA in
those samples?

3
4

A

Yes , I would .

5

Q

Now, in a -- in our conversation yesterday by phone,

6

you made -- you expressed that the resu l ts that we're

7

talking about , the absence of DNA , was weird.

8

recall that?

Do you

There was something weird about this?

9

A

Yes .

Yes.

10

Q

What is --

11

A

Typically -- you know, typically , if there ' s going to

12

be something that ' s going to affect the DNA, it will

13

also affect the appearance of the blood .

14

that attack DNA will also attack the proteins in blood

15

that make it

16

on a swab, I would think that that ' s going to be a good

17

candidate to get DNA from.

18

that looked black or green or have mold growing on .

19

them, and I can still get DNA from them.

20

more effects of time and biological degradation l whereas

21

I ' m not so sure what the effects of a chemical attack

22

on the DNA would have onto the appearance of the blood .

23

Typ i ca ll y , what we see are biological degradati ons ,

24

things that h appen na turally over time .

25

Q

Those things

ed, so if I see a nice bright red stain

I've taken blood stains

But those are

And the fact that the stains that you observed were
23

JEANNE L. SPOEHR, RMR/CRR
OUTAGAMIE COUNTY JUSTICE CENTER
(920)

832-5151

 C

C

1

still red and, in one case, at least bright red would

2

indicate that that biological degradat ion process

3

wasn ' t occurring; correct?

4

A

Thac's right .
MR. COOK:

5

Okay.

I have no further

question s.

6

MS. SCHNEIDER:

7

Just a few follow-up, Mr.

Ertl.

8

CROSS -EXAMINATION

9

10

BY MS. SCHNEIDER:

11

Q

Your test r u n on T4 was just a test first to develop if

12

it was presumptive for blood , and then you further

13

developed and determined that it was human blood;

14

correct?

15

A

That's correct.

I ran a test to determine if it's

16

human -- presumptivel y human, absolutely blood.

17

there 's a fine line t h ere, yes.

18

Q

Okay .

So

You d id not though i n any regard on T4 ever

attemp t to create a DNA profile from that .

19
20

A

No, I did not .

21

Q

Okay.

Have you compared, Mr. Ertl, your original

22

report from this case in which Shanna's DNA profile was

23

created with the Reliagene lab and the profile or

24

markers found in those samples?

25

A

Yes , I have .
24

JEANNE L. SPOEHR, RMR/CRR
OUTAGAMIE COUNTY JUSTICE CENTER
(920)

832-5151

'

 C

1

Q

Okay.

@

And is it true that the Reliagene report, which

2

you have in front of you marked as Exhibit 3, does have

3

a profile listed for certain markers for three items,

4

and when you compare those numbers, they appear to all

5

be the same numbers?

6

A

Yes, and they also match with Shannon's (sic) numbers.

7

Q

Okay.

And those all matched Shanna Van Dyn Hoven's

known sample.

8
9

A

Yes, they did.

10

Q

Did you attempt

well, let me ask you this, Mr. Ert l .

11

The crime lab runs a series or a certain number of

12

markers when they create a profile; correct?

13

A

That's correct.

14

Q

How man y markers doe s the crime lab run?

15

A

We run 16 markers, but 13 of those are used for the

16
17

National DNA Data Bank.
Q

And the Reliagene lab only listed ten markers on these
samples; is that correct?

18
19

A

That ' s correct.

20

Q

Even with that, were you able to run any kind of

21

statistical analysis on the items from the Reliagene

22

lab that were tested and a DNA profile was created with

23

Shanna's known sample?

24
25

A

Yes.

I compared all of their markers to the markers

that corresponded to ours, and they all matched.
25

JEANNE L. SPOEHR, RMR/ CRR
OUTAGAMIE COUNTY JUSTICE CENTER
(920)

832-5151

And I

 8

C

1

can calculate a stat i stic on the likelihood of that

2

happening just per chance .

3

that one time out of 650 billion samples.

4

Q

And you would expect to see

And those samples from the Reliagene l ab where a

5

profile was created were a left sandal sample from Mr.

6

Hudson, a right sandal sample from Mr. Hudson, and then

7

what we ' ve referred to as a wad of papers, or I believe

8

it might have been item Wat one point?

9

A

I believe i t was item C.

10

Q

C.

11

A

Yes.

12

Q

Okay .

I'm sorry.

Yes.

Item C?

So those three items that Reliagene tested the

13

likelihood in comparing them to Shanna's DNA profile,

14

the likel i hood that they ' re anyone else other than

15

Shanna that were on the left sandal, right sandal and

16

this wad of papers is one in 650 billion?

17

A

That's correct .

18

MS. SCHNEIDER:

19

MR. COOK:

20

THE COURT:

21

Nothing further.

No further ques t ions.
Thank you, Mr . Ertl .

You may

step down.
MR. COOK :

22

Your Honor, I believe that

23

concludes the testimony with regard to the DNA testing

24

results.

25

any argument that may come out of the testimony today

I think it probably makes sense to reserve

26

JEANNE L . SPOEHR , RMR/CRR
OUTAGAMIE COUNTY JUSTICE CENTER
( 920)

832-5151

 0

1

for the post-conviction hearing, which is where all of

2

the full record would be developed and the significance

3

of this testimony could be put in perspective at that

4

time.
Mr. Hudson did request before -- by phone here

5
6

before we began
THE DEFENDANT:

7
8
9

Speak up, Cook.

I can't

hear.
MR. COOK:

He requested that I would bring to

10

the Court's attention a matter that I discussed with

11

him last week up at the prison, and that is that I am

12

in the process of closing my law practice.

I expect to

13

close that practice by the end of October.

And I have

14

talked with the State Public Defender Appellate Office

15

last week and also again yesterday, and they have

16

assured me that they will find successor counsel to be

17

appointed to two or three cases that I will not be able

18

to conclude before the end of this month, including Mr.

19

Hudson's case.

20

It seems that it's a good time for this kind of

21

transition to take place because we've now concluded

22

the DNA testing part of the post-conviction proceedings

23

with this hearing today, and there are some discovery

24

matters that have yet to be addressed by the Court.

25

Those will not be decided by the Court till the end of
27

JEANNE L. SPOEHR, RMR/CRR
OUTAGAMIE COUNTY JUSTICE CENTER
(920)

832-5151

 0

C

1

November, and then the post-conviction hearing is set

2

for January 19, which is still about three-and-a-half

3

months in the future.

4

time for successor counsel to become familiar with the

5

issues that need to be addressed at the post-conviction

6

hearing.

7

and I would expect that after successor counsel is

8

found, probably in the next week or so, that we would

9

present the Court with a motion to allow the

So that should allow plenty of

It's a good time for a transition to be made,

10

appointment of successor

11

to replace me in this case.
THE COURT:

12

13

Does the state have any comments

on that?
THE DEFENDANT:

14
15

on that, Your Honor?

16

THE COURT:

17

THE DEFENDANT:

18

appointed successor counsel

Court.

Yes.

Could I have a comment

You certainly may.
I filed a motion with the

I don't know if the Court received it yet.

19

THE COURT:

Yes, I did.

20

THE DEFENDANT:

I would like briefings

21

because I'm highly objectionable to Cook just up and

22

withdrawing from my case right now, and I would like to

23

have a hearing on this matter, specifically where I

24

have time to prepare to object to h i m withdrawing from

25

my case.
28

JEANNE L. SPOEHR, RMR/CRR
OUTAGAMIE COUNTY JUSTICE CENTER
(920)

832-5151

 0

C

I believe that Cook is being threatened by the

1

2

district attorney's office or the police to withdraw

3

from my case so that he -- issues of the police

4

corruption and prosecution corruption are not brought

5

forth to this Court.
Now , I have no problem.

6

I love Cook as an

7

attorney.

8

is one of the first attorneys that I've got that I get

9

along with that is bringing forth the evidence that

10

He's doing an amazing job.

I've been framed by the police.

Okay?

And this

Okay?

Now, if this Court allows Cook to withdraw from my

11

12

case and new counsel gets on and that new counsel

13

doesn't raise these -- this defense of me being

14

innocent and framed, then that's prejudicing my whole

15

defense, and I want time to prepare a response -- a

16

written response to him withdrawing from my case or set

17

a hearing for a motion.
THE COURT:

18

I don ' t know, Mr. Cook, how I

19

stop anyone from closing their law office and leaving

20

the practice of law.

21

MS. SCHNEIDER:

Well, the only thing I

22

think

23

might like to have put on the record, without prying

24

into Mr. Cook's personal life choices, is the fact

25

that -- and I don't want to speak for Mr . Cook -- but

and this is the state responding -- that I

29

JEANNE L. SPOEHR , RMR/CRR
OUTAGAMIE COUNTY JUSTICE CENTER
( 920)

832-5151

 C

Q

1

there has been no pressure, no threats, no promises, no

2

inducements made by any member of the state, the

3

Kaukauna Police Department, the State Crime Lab, or

4

anyone involved in this case.

5

This is a personal life choice of his that he is

6

making, and so that that door and any claim by Mr.

7

Hudson that that may be the reason why Attorney Cook is

8

getting off of this case can clearly be addressed today

9

and addressed in a fashion that none of that has

10

occurred, despite whatever Mr. Hudson from this point

11

or hi s family or his friends may believe.

12

MR. COOK:

Your Honor,

I can assure the Court

13

that there has been absolutely no pressure whatever

14

from the district attorney, the state, any police

15

department or officers --

16

THE DEFENDANT:

17

MR. COOK:

Speak up, Cook.

-- that enter into this decision.

18

This is a personal decision.

19

making with my family to pursue another line of

20

employment.

21

the coming, but it's a -- it's going to take place at

22

the end of this month, and I'll be closing my practice

23

of law and beginning new employment.

24
25

It's a decision that I'm

It's a decision that's been a long time in

THE COURT:

Are you going to give up your law

license also?
30

JEANNE L. SPOEHR , RMR/ CRR
OUTAGAMIE COUNTY JUSTI CE CENTER
( 920 )

832 - 5151

 1

MR. COOK:

Well, I --

2

THE DEFENDANT:

3

MR. COOK:

I can't hear, Cook.

Well, I will not be practicing law

4

any further.

5

expire, probably at the end of the year.
THE COURT:

6

7

I imagine at some point that license will

If you don't do your CLE, they

will take it away from you.

8

MR. COOK:

That's right.

9

THE COURT:

I -- I got Mr. Hudson's petition

10

yesterday, and I called Tom Cane, Judge Tom Cane, who

11

is the head of the district

12

and they at one time issued an order refusing your

13

withdrawal on the basis that there would be no more

14

no additional counsel appointed by the public defender

15

program.

Appellate Court system,

16

And his advice was that, inasmuch as now that

17

you've told me that there will be an attorney appointed

18

by the Appellate Division of the Public Defender's

19

Office, and, secondly, that there is no way that either

20

the Appellate Court or this Court can stop you from

21

changing your occupation, that we will have no choice

22

but to grant your withdrawal from the case.

23

therefore, there is nothing in a further hearing with

24

Mr. Hudson that will prevent you from withdrawing.

25

his request is denied.
31

JEANNE L. SPOEHR, RMR/CRR
OUTAGAMIE COUNTY JUSTICE CENTER
(920)

832-5151

And,

So

 C

THE DEFENDANT:

1

2

C

Hold on, Your Honor.

Can I

speak on that for a moment?

3

THE COURT:

Go ahead for the record.

4

THE DEFENDANT:

Okay.

I have documentation

5

that I want to produce to the Court , exhibits, where

6

the district attorney's office and the police, not

7

once , not twice, but t h ree times stopped me and my

8

family from getting me an attorney, three attempts

9

where they made calculated efforts to arrest my

10

girlfriend falsely, okay, to prevent me from getting an

11

attorney.

12

Now, Cook brought this forth to this Court in a

13

July 1 , 2005 motion, okay, discovery motion, that the

14

district attorney's office from Outagamie County made a

15

calculated effort to arrest my girlfriend falsely to

16

prevent me from getting private counsel at my trial .

17

Okay?

18

The district attorney's office a second time,

19

Steven Malchow, called up my girlfriend's sister ' s

20

foster care home and said that he feels that she's

21

unfit to

22

when she was working on getting me counsel.

23

to watch those kids.

Okay?

And this is

Now , I have documentation from that foster care

24

that Malchow made these calls .

Okay?

I got

25

documentation where the assistant chief of the police
32

JEANNE L. SPOEHR , RMR/ CRR
OUTAGAMIE COUNTY JUSTICE CENTER
( 920)

832 - 5151

 0

0

1

said I never asked for an attorney.

2

in his police reports.

3

I have asked for an attorney prior to me being

4

interrogated.

5

Okay?

And put it

However, we got tapes now where

However, you got the district attorney's office,

6

Your Honor, telling you prior to my trial that Mr.

7

Hudson never asked for a lawyer.

They lied to you.

8

The Supreme Court Office of Lawyer Regulation has

9

an investigation going against Biskupic and Mike Gates

10

(phonetic) for prosecution misconduct, for lying to you

11

about me asking for an attorney, and for him

12

withholding highly exculpatory evidence, and I want to

13

submit these documents to this Court before the Court

14

makes a ruling.
THE COURT:

15

16

This has got nothing to do with

Mr. Cook's withdrawal.
THE DEFENDANT:

17

Yes, it does, because it

18

shows a pattern of them threatening people and

19

harassing people, arresting people falsely, and I have

20

a right

21

THE COURT:

Mr. Hudson -- Mr. Hudson, I'm not

22

going to argue with you.

23

Mr. Cook can withdraw when substitute counsel is

24

provided, and that's the end of it .

25

THE DEFENDANT:

I've made my decision.

Well, then when that
33

JEANNE L. SPOEHR, RMR/CRR
OUTAGAMIE COUNTY JUSTICE CENTER
(920)

832-5151

And

 1

happens then --

2

THE COURT:

Court is adjourned.

3

MS . SCHNEIDER:

Thank you.

4
5

(Proceedings concluded at 12:02 p.m.)

6
7
8
9

10
11

12
13

14
15
16
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21
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25
34

JEANNE L. SPOEHR, RMR/CRR
OUTAGAMIE COUNTY JUSTICE CENTER
(920)

832 -5151

 1

2

STATE OF WISCONSIN)
) ss.
OUTAGAMIE COUNTY )

3

I, Jeanne L. Spoehr, certify that I am the

4

5

official court reporter for Branch IV of the Circuit Court

6

of Outagamie County; and as such court reporter, I made

7

full and accurate stenographic notes of the foregoing

8

proceedings; that the s~me was later reduced to typewritten

9

form; and that the foregoing is a full and accurate

10

transcript of my stenographic notes so taken.

11

12

the

13
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35

JEANNE L. SPOEHR, RMR/CRR
OUTAGAMIE COUNTY JUSTICE CENTER
{920)

832-5151