Wednesday’s proceedings began with the defense’s first witness: David Carter, a forensic specialist whose PhD dissertation focused on Forensic Taphonomy.
Carter described the study of taphonomy as “all of the processes associated with something that’s decomposing,” and told the jury that his area of expertise was “death investigation.”
Paul Flores’ attorney, Robert Sanger, spent around 45 minutes reviewing Carter’s curriculum vitae, specifically noting his experience as a professor at Chaminade University of Honolulu and his membership in entities like the American Academy of Forensic Sciences, the American Society for Microbiology and the International Association for Identification.
Noting Carter’s extensive experience in the field of forensics, Sanger asked the court to designate him as an expert witness in forensic sciences and taphonomy.
Prosecutor Christopher Peuvrelle partially objected to this, arguing that the court should not designate Carter as an expert in general forensic sciences but rather specifically human decomposition.
Judge Jenifer O’Keefe designated Carter as an expert in human decomposition and taphonomy.
Carter said he was provided photos of the excavations that took place in March and April 2021 at Ruben Flores’ home in Arroyo Grande, at 710 White Ct. Peuvrelle clarified that Carter never looked at the evidence firsthand, and Carter agreed when Peuvrelle told him that “to be in person would be the best vantage point” to analyze the evidence.
“I don’t see any data that confirms the presence of human remains,” Carter told Sanger during his direct examination.
During his cross examination, Peuvrelle clarified that Carter’s PhD dissertation was on rat decomposition, and Carter explained that a lot of his career dealt with studying animal rather than human decomposition.
“Your testimony is just that, as you see it, the presence of human remains is not confirmed,” Peuvrelle said.
“Correct,” Carter replied.
Throughout the trial, the jury has heard from several witnesses who testified that they believed that stains and markings in the soil under Ruben Flores’ deck revealed human decomposition.
Carter contradicted this on Wednesday, testifying that he would typically expect to find other types of human remains — such as bones, teeth and hair — in burial sites, which were not present in the soil. Carter agreed when Peuvrelle said that you wouldn’t expect to find hair, bones, teeth, nails or skin, however, if the body were dug out of the ground.
The prosecution believes that Paul and Ruben Flores buried Smart’s body under the deck and then removed it at some point.
Cindy Arrington, an archeologist who testified earlier this month, said those things would also not be present in the soil if the body had been wrapped in a semipermeable membrane, such as a tarp, when it was buried.
“As far as you know, there’s no evidence whatsoever that there was a tarp used in this case,” Sanger said.
“That’s correct,” Carter replied.
Carter later clarified that there wasn’t any evidence that a tarp was never present in the soil, either.
“You don’t know what this hypothetical wrapping is made of, so it’s tough to talk about,” Carter said.
Carter noted multiple times during his testimony that “the environment plays a significant role in how bodies decompose.” Decomposition, according to Carter, depends on body temperature, the temperature of the environment and the conditions under which it has been buried.
Carter said “the only thing you can count on to always be there” is microbes. But in this case, he said, “nothing was tested to give insight” into the presence of microbes.
He said that the soil could change over time and the microbial activity in the soil could change depending on how long it was hypothetically kept in the ground, however, and added that he doesn’t “think anybody’s looked at microbial activity that far out.”
During his cross examination, Peuvrelle asked Carter if the defense had paid him to testify.
“You’re not volunteering your time here, are you?” Peuvrelle asked.
“I am,” Carter said.
“How much are you being paid?” Peuvrelle asked. Carter reiterated that he was “not being paid.”
Carter said the color changes in the soil instead possibly indicated lamellae, which sometimes appear when clay and iron accumulate in bands in the soil.
“How much it requires to form lamellae, I don’t know, I can’t tell you,” Carter said. “They just seem to form in soils consistent with what we’re looking at here.”
Peuvrelle said Carter’s report stated the color changes could “also be related to the decomposition of organic matter,” which could be a human body.
The defense’s second witness questions the validity of the test used to detect human blood in the soil under Ruben Flores’ deck
The second witness to testify for the defense was Elizabeth Johnson, a forensic DNA consultant working through a private practice.
“As a scientist, do you come to a case to prove one side or the other?” Sanger asked.
“My duty is to represent the science in a nonpartisan way, and that’s what I’ve always done and what I will continue to do for as long as I’m in this business,” Johnson said.
Noting Johnson’s PhD and her extensive career as a DNA consultant, the court designated her as an expert in DNA microbiology and immunology.
During his direct examination, Sanger referred specifically to soil samples that were taken from under Ruben Flores’ deck.
The jury heard about these samples on Monday when Angela Butler, a senior forensic DNA analyst and Laboratory Supervisor at Seri Lab assigned to the Kristin Smart case, testified that the samples tested positive for the presence of human blood using a HemDirect test.
Johnson called the validity of the test into question during her testimony, saying that there hasn’t been enough research done to verify that the HemDirect test can be used on soil samples.
“The length of time a sample is exposed to environmental conditions impacts how degraded that sample has become,” Johnson said. “And these tests don’t work well — or work at all — with those types of samples.”
She told Sanger that, because there have been no validation studies on whether the HemDirect test works accurately on soil samples, she couldn’t be certain that using the test was appropriate.
“[When testing samples], you need to have confidence that they are valid tests, and you need to understand the conditions under which they work and under which they don’t work,” Johnson said.
Johnson said she emailed Dr. Christian Stadler from SERATEC, the distributors of the HemDirect test, who told her that he didn’t have data to answer the question of whether the test would work on bloodstains exposed to soil for more than 20 years.
“You would want your validation studies to reflect those same types of samples [that you’re testing],” she told the jury.
Johnson’s opinion contradicted Butler’s testimony.
“My opinion is that the HemDirect test was not appropriately applied in this situation because there were no validation studies performed on the type of samples being used,” Johnson said, citing a “lack of understanding” present in the analysis.
She also added that, in some cases during the analysis, there were multiple samples taken from the same tube of soil which varied on whether or not they tested positive for blood.
“[This] speaks to the inconsistency of the non-reproducibility of the test result,” she said.
Johnson’s testimony is set to resume Thursday morning.
Juror and witness speak in the hallway, going against court rules
After Carter finished testifying, Judge O’Keefe dismissed all jurors in the courtroom except one: a juror who somebody saw talking to Carter in the hallway during lunch.
During his testimony, Carter said he came from Hawaii to testify in the trial. The juror told Judge O’Keefe that she approached Carter during lunch and told him she was “surprised” that he “didn’t have a sun tan.”
The juror also mentioned asking Carter how he liked the West Coast.
“One of the hardest things that I tell people is not to be pleasant and normal with other human beings,” O’Keefe said. “Any time we hear that anybody has had any kind of contact… we have to get information.”
She then asked the juror if anything about her discussion with Carter caused her to form an opinion about the case or if it impacted her “in any way that would make you not a fair or impartial juror.”
The juror said no and left the courtroom.
Carter returned to the courtroom later and confirmed that the juror approached him to engage in smalltalk, adding that he tried to “stop the conversation.”
“I really was just trying to: ‘Thank you, have a good day,’ and that’s how it ended,” Carter said. “I wish I could’ve gone back and said ‘Hey, I shouldn’t be talking to you right now.’”
O’Keefe dismissed Carter. “Sorry about that,” Carter said, as he left the courtroom.
Ruben Flores’ attorney, Harold Mesick, said Carter and the juror were just “exchanging pleasantries,” adding that it was “no harm, no foul situation.”
Peuvrelle disagreed and said he found it “very, very concerning” that the juror would go against the rules of court, which are read to jurors daily.
O’Keefe suggested that council take up the issue at the end of the day, and Sanger said he would reserve his thoughts until then.
The council did not have time at the end of the day to take up this issue.
A juror accuses another juror of ‘lack of professionalism‘
At the end of the day, when the juries had left the courtroom, one juror stayed behind.
Some time on Wednesday, the juror had provided a note to O’Keefe saying that another member of the jury had expressed a “lack of professionalism” during proceedings.
Outside the presence of the rest of the jury, the juror told O’Keefe that the other jury member had been “laughing at the testimony” or “laughing at what the attorneys are asking.”
She mentioned that he (the other juror) was offering “commentary on professionalism from the attorneys” in a conversation with another juror on Wednesday and added that the laughing had been going on for about a month.
After dismissing the juror, O’Keefe called the juror accused of laughing into the courtroom and told him what the other juror said.
“If you could refrain from doing that, that would be greatly appreciated,” O’Keefe said.
O’Keefe then expressed the importance of following the rules of the court in order to stay impartial as a juror.
“I need to make sure… [you] have not formed an opinion on the case,” O’Keefe said, calling it “extremely essential.”
The juror said he had not formed an opinion, and O’Keefe dismissed him.
“I think that this juror has gone over the edge,” Sanger said after the juror left the courtroom, adding that he had been admonished about a separate issue before and that he “doesn’t seem to be taking the evidence as seriously as he should.”
Peuvrelle moved to deny the request.
O’Keefe agreed and denied the request, saying she was “able to see his demeanor” as she spoke with him.
“He seemed to take the admission seriously and nothing about the case was discussed,” O’Keefe said. “To my understanding, it was simply just an observation of conduct by the attorneys.”
Court proceedings resumed on Thursday morning.