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    1                IN THE UNITED STATES DISTRICT COURT
                    FOR THE NORTHERN DISTRICT OF GEORGIA
    2                           ROME DIVISION
    3    ----------------------------          CIVIL DOCKET NUMBER
         IN RE: TRI-STATE CREMATORY )               MDL 1467
    4    LITIGATION                  )
         ----------------------------            ROME, GEORGIA
    5                                     WEDNESDAY, AUGUST 25, 2004
                                                   10:10 A.M.
    6
                                    VOLUME 1
    7
    8                     TRANSCRIPT OF PROCEEDINGS
                    BEFORE THE HONORABLE HAROLD L. MURPHY,
    9              UNITED STATES DISTRICT JUDGE, AND A JURY

    10
         APPEARANCES:
    11

    12       FOR THE PLAINTIFFS:          ROBERT H. SMALLEY
                                          411 WEST CRAWFORD STREET
    13                                    DALTON, GEORGIA 30720-1105
                                          (706) 278-4499
    14

    15                                    ELIZABETH A. ALEXANDER
                                          EMBARCADERO CENTER WEST
    16                                    275 BATTERY STREET
                                          30TH FLOOR
    17                                    SAN FRANCISCO, CALIFORNIA
                                                         94111-3339
    18                                    (415) 956-1000
    19
                                          KATHRYN BARNETT
    20                                    3319 WEST END AVENUE
                                          SUITE 600
    21                                    NASHVILLE, TENNESSEE
                                                     37203
    22                                    (615) 313-9000
    23
    24
                        PROCEEDINGS RECORDED BY STENOGRAPHY
    25                   TRANSCRIPT PRODUCED BY COMPUTER



                                                              2



                                Page 1
                        Transcript.8.25.04
    1                          APPEARANCES, CONT'D.

    2
    3        FOR THE PLAINTIFFS:          ROBERT M. DARROCH
                                          2200 CENTURY PARKWAY, N.E.
    4                                     TENTH FLOOR
                                          ATLANTA, GEORGIA 30345
    5                                     (404) 248-2866
    6
                                          PHILLIP A. FLEISSNER
    7                                     600 GEORGIA AVENUE
                                          CHATTANOOGA, TENNESSEE
    8                                                  37402
                                          (423) 756-3591
    9
    10       FOR THE DEFENDANTS:          FRANK E. JENKINS III
                                          JENNIFER J. WALKER
    11                                    BRANDON L. BOWEN
                                          15 SOUTH PUBLIC SQUARE
    12                                    CARTERSVILLE, GEORGIA 30120
                                          (770) 387-1373
    13
    14                                    STUART F. JAMES
                                          707 GEORGIA AVENUE
    15                                    SUITE 401
                                          CHATTANOOGA, TENNESSEE
    16                                               37402
                                          (423) 756-3646
    17

    18
    19

    20

    21
    22
    23       COURT REPORTER:              DENNIS J. REIDY
                                          309 U.S. DISTRICT COURTHOUSE
    24                                    600 EAST FIRST STREET
                                          ROME, GEORGIA 30161
    25                                    (706) 291-5610



                                                             3



    1                          INDEX OF WITNESSES
    2

    3    PLAINTIFFS':
                                Page 2
                         Transcript.8.25.04
    4

    5         CHARLES BREWER        DIRECT             BARNETT         45
    6                               CROSS              JAMES           92
    7                               REDIRECT           BARNETT         114

    8                               RECROSS            JAMES           121
    9
    10

    11

    12
    13
    14

    15

    16
    17

    18

    19

    20

    21
    22

    23

    24
    25



                                                                 4




    1                          P-R-O-C-E-E-D-I-N-G-S
    2             THE COURT:    GOOD MORNING, LADIES AND GENTLEMEN.    I
    3    REMIND YOU THAT THE CASE YOU'RE ABOUT TO TRY IS THE CASE OF

    4    BECHTEL AND OTHERS AGAINST TOMMY RAY BRENT MARSH, AND CLARA
    5    MARSH AS ADMINISTRATOR OF THE ESTATE OF TOMMY RAY MARSH.
    6    TOMMY RAY BRENT MARSH IS THE SON OF TOMMY RAY MARSH.    AND
                                Page 3
                           Transcript.8.25.04
    7    MR. TOMMY RAY MARSH DIED A YEAR OR SO AGO, AND HIS WIDOW,

    8    CLARA MARSH, WAS APPOINTED AS ADMINISTRATRIX OF HIS ESTATE,
    9    AND SHE IS HERE IN THAT REPRESENTATIVE CAPACITY, THE OFFICIAL
    10   CAPACITY OF BEING THE REPRESENTATIVE OF MR. TOMMY RAY MARSH'S

    11   ESTATE.
    12               NOW, THIS CASE WILL PROCEED BASICALLY AS FOLLOWS.
    13   COUNSEL HAVE THE RIGHT TO MAKE AN OPENING STATEMENT, WHICH IS

    14   A BRIEF OUTLINE OF WHAT THEY CONTEND THE EVIDENCE IN THIS CASE

    15   WILL SHOW.    AFTER THEY'VE MADE OPENING STATEMENTS, THEN THE
    16   PLAINTIFFS WILL PUT UP EVIDENCE.   AFTER THE PLAINTIFFS HAVE
    17   PUT UP EVIDENCE, THEN THE DEFENDANTS WILL PUT UP EVIDENCE.

    18   AFTER THE PARTIES HAVE INITIALLY PUT UP EVIDENCE, THEY MAY PUT

    19   UP WHAT'S CALLED REBUTTAL EVIDENCE.    AFTER THE EVIDENCE IS
    20   CLOSED, THEN WE'LL HAVE ARGUMENT OF COUNSEL.   THEN THIS MATTER

    21   WILL BE SUBMITTED TO YOU FOR THE MAKING OF APPROPRIATE

    22   VERDICTS.

    23               NOW, DURING THE COURSE OF THE TRIAL, THERE WILL BE

    24   SOME OBJECTIONS TO QUESTIONS AND ANSWERS OR TO ANSWERS.   IF
    25   THE COURT SUSTAINS AN OBJECTION, THEN THAT MEANS THAT THAT



                                                               5




    1    MATTER IS NOT LEGAL EVIDENCE, SHOULD NOT BE CONSIDERED BY YOU
    2    IN ANY WAY IN ARRIVING AT ANY FACTUAL CONCLUSION.   IF EVIDENCE

    3    IS ADMITTED FOR A LIMITED PURPOSE, THEN YOU SHOULD CONSIDER
    4    THAT EVIDENCE ONLY FOR THE LIMITED PURPOSE FOR WHICH IT WAS

    5    ADMITTED.
    6                NOW, IN DETERMINING THE FACTS THAT YOU FIND
    7    APPROPRIATE IN THIS CASE AND IN MAKING YOUR VERDICT, YOU MAY

    8    CONSIDER ONLY THE TESTIMONY THAT'S DELIVERED DURING THE COURSE
    9    OF THE TRIAL, EITHER IN PERSON OR BY STIPULATION OR BY
                                Page 4
                          Transcript.8.25.04
    10   DEPOSITION; EXHIBITS ADMITTED INTO -- ANY ADMITTED INTO

    11   EVIDENCE DURING THE COURSE OF THE TRIAL; AND ANY MATTER TO
    12   WHICH THE COURT TAKES JUDICIAL NOTICE IF THE COURT SHOULD TAKE
    13   JUDICIAL NOTICE OF ANY FACT OR FACTS DURING THE COURSE OF THE

    14   TRIAL.   ALSO, ANY STIPULATIONS OF FACT MADE BY THE LAWYERS ARE
    15   TO BE ACCEPTED BY YOU AS BEING IN EVIDENCE WITHOUT THE
    16   NECESSITY OF FURTHER PROOF.

    17             NOW, THE CASE YOU'RE ABOUT TO TRY IS A CLASS ACTION

    18   CASE ON BEHALF OF A CLASS OF PLAINTIFFS AGAINST THE TWO
    19   DEFENDANTS.   CLASS ACTIONS ARE REPRESENTATIVE SUITS ON BEHALF
    20   OF A GROUP OR GROUPS OF PERSONS SIMILARLY SITUATED.    THE

    21   CONCEPT OF CLASS ACTIONS, THAT IS, REPRESENTATIVE LAWSUITS

    22   SUCH AS A CLASS ACTION, IS NOT SOMETHING NEW.   IT IS SOMETHING
    23   THAT PEOPLE HAVE NOT HEARD MUCH ABOUT IN THIS COUNTRY UNTIL

    24   RECENT YEARS, BUT REPRESENTATIVE LAWSUITS DATE BACK FOR

    25   HUNDREDS OF YEARS BACK TO ENGLAND AND COMES FROM THE ENGLISH



                                                                6




    1    COMMON LAW.
    2              MUCH OF THE LAW IN THE UNITED STATES IS BASED UPON

    3    THE ENGLISH COMMON LAW, AND THE FACT THAT THIS IS A CLASS
    4    ACTION SUIT DOES NOT MAKE IT SOME UNUSUAL CREATURE OR A

    5    DIFFICULT CASE OTHER THAN THE FACT THAT IT IS A CASE
    6    REPRESENTING THE CLAIMS OF MANY PEOPLE, AND THE COURT
    7    DETERMINED THAT TO HANDLE THIS CASE AS A CLASS ACTION WAS IN

    8    THE BEST INTERESTS OF MANY PEOPLE AND ENTITIES.   THE COURT
    9    DETERMINED THAT ALLOWING THIS CASE TO PROCEED AS A CLASS
    10   ACTION WAS MORE ECONOMICAL FOR ALL THE PARTIES IN THE CASE,

    11   WOULD MORE QUICKLY AND SIMPLY RESOLVE ALL THE ISSUES BETWEEN
    12   THE PARTIES IN THIS CASE, WOULD ACCOMMODATE MANY COURTS AND
                                Page 5
                            Transcript.8.25.04
    13   PREVENT THE NECESSITY OF MANY, MANY TRIALS IN MANY, MANY

    14   COURTS.   SO, IN AN EFFORT TO ASSIST THE PARTIES IN THE
    15   RESOLVING OF THE DIFFICULTIES BETWEEN THE ENTITIES INVOLVED IN
    16   THIS LITIGATION, THE COURT IS HANDLING THIS CASE AS A CLASS

    17   ACTION.
    18             SO, THE CLASS REPRESENTATIVES -- AND WHEN YOU WERE
    19   QUALIFIED AS A JUROR, I ASKED YOU ABOUT YOUR RELATIONSHIP TO

    20   CERTAIN PLAINTIFFS.    THOSE INDIVIDUALS ARE REPRESENTATIVES OF

    21   THE CLASS ALLOWED TO ACT ON BEHALF OF THE MEMBERS OF THE CLASS
    22   BY THE COURT, AND IN THIS CASE WHAT THE PLAINTIFFS CLASS IS
    23   SEEKING IS A VERDICT AT YOUR HANDS AS TO CERTAIN ASPECTS OF

    24   THIS LITIGATION.

    25             SO, THE CASE THAT YOU HAVE IS CALLED A TORT CASE.     A



                                                               7




    1    TORT IS THE UNLAWFUL VIOLATION OF A PRIVATE LEGAL RIGHT OTHER

    2    THAN A MERE BREACH OF CONTRACT, EXPRESS OR IMPLIED.   IN THIS
    3    CASE, EACH DEFENDANT DENIES ANY LIABILITY IN THIS CASE TO ANY

    4    MEMBER OF THE CLASS AND SAYS THAT SUCH DEFENDANT IS NOT LIABLE

    5    TO ANY MEMBER OF THE CLASS ON ANY CLAIM MADE.
    6              NOW, IN THIS CASE, IT'S A TORT; THAT IS, IT IS A

    7    CASE IN WHICH THE PLAINTIFFS SEEK DAMAGES, BUT YOU WILL NOT BE
    8    ASKED TO AWARD DAMAGES IN THIS CASE IF YOU FIND RESPONSIBILITY
    9    AND A BREACH OF RESPONSIBILITY ON THE PART OF THE DEFENDANTS

    10   AS TO MEMBERS OF THE CLASS.    WHAT YOU'LL BE ASKED TO DO IS
    11   MAKE SOME DETERMINATIONS AS TO WHETHER OR NOT A DEFENDANT OR
    12   OR THE DEFENDANTS IN THIS CASE VIOLATED A LEGAL OBLIGATION TO

    13   THE PLAINTIFFS; THAT IS, DID THEY BREACH A DUTY OWED THE

    14   PLAINTIFFS, THE PLAINTIFF CLASS; AND IF SO, WAS IT FORESEEABLE
    15   THAT A VIOLATION OF THAT DUTY BY A DEFENDANT SHOULD HAVE BEEN
                                Page 6
                           Transcript.8.25.04
    16   ANTICIPATED BY SUCH DEFENDANT; THAT IS, THAT SOME DAMAGE WOULD

    17   OCCUR TO THAT DEFENDANT -- TO THAT PLAINTIFF AS A RESULT OF
    18   THE DEFENDANT'S BREACH OF THE DUTY, THAT IS, WHETHER OR NOT
    19   INJURY WAS FORESEEABLE?

    20              THERE WILL BE INTERROGATORIES, THAT IS, QUESTIONS,
    21   FOR YOU TO ANSWER, AND THAT IS THE TYPE VERDICT FORM THAT
    22   YOU'LL HAVE, AND I'LL INSTRUCT YOU ABOUT IT AT THE APPROPRIATE

    23   TIME.    AND THE COURT WILL GIVE YOU MORE DETAILS ON THE LAW

    24   APPLICABLE TO THIS CASE AT THE CONCLUSION OF THE TRIAL AND
    25   WHEN NECESSARY AS WE GO ALONG DURING THE COURSE OF THE TRIAL.



                                                                8




    1               AT THIS POINT, WE'RE GOING TO IN A MOMENT HAVE

    2    OPENING STATEMENTS.
    3               REPRESENTING THE PLAINTIFF CLASS HERE TODAY IS

    4    ROBERT SMALLEY.   THAT'S MR. SMALLEY.

    5               IS THIS MISS ALEXANDER?
    6               MS. ALEXANDER:   YES, IT IS, YOUR HONOR.

    7               THE COURT:   AND MISS BARNETT.
    8               REPRESENTING THE DEFENDANTS IS MR. JENKINS.     Y'ALL
    9    ALL MET HIM AT LENGTH.    AND YOU MET MR. SMALLEY, OF COURSE, AT

    10   LENGTH DURING THE VOIR DIRE.   AND MR. JAMES AND MISS WALKER.
    11              MR. JAMES:   SHE HAD TO STEP OUT A MINUTE, YOUR
    12   HONOR.

    13              THE COURT:   ALL RIGHT.   NOW, THEY HAVE OTHER LAWYERS

    14   WITH THEM.    I'M NOT GOING TO INTRODUCE THE OTHER LAWYERS AT
    15   THIS POINT.   AND THERE WILL BE SOME OTHER LAWYERS THAT ARE

    16   HERE ON OCCASION WHO ARE INVOLVED IN REPRESENTING THE VARIOUS

    17   PARTIES.   THERE ARE A LOT OF LAWYERS IN THE CASE, BUT THE
    18   LAWYERS HANDLING THE MATTER BEFORE THE COURT TODAY ARE THE
                                Page 7
                          Transcript.8.25.04
    19   ONES I'VE JUST IDENTIFIED.    THEY'RE GOOD LAWYERS.

    20              THIS CASE WILL TAKE A LITTLE WHILE, BUT I ASSURE YOU
    21   IT'S NOT GOING TO BE -- AND I WANT TO POINT OUT THIS IS A
    22   CIVIL CASE, A CLAIM THAT IS WHAT WE CALL A CIVIL CASE.      IT IS

    23   NOT A CRIMINAL CASE.    IT IS NOT A CASE IN WHICH YOU FIND A
    24   PERSON GUILTY OF HAVING VIOLATED A CRIMINAL STATUTE.    AND I
    25   WANT TO ASSURE YOU THAT WHILE THIS CASE WILL TAKE A LITTLE



                          OPENING STATEMENT - BARNETT            9




    1    WHILE TO TRY, IT'S NOT GOING TO TAKE ANYTHING LIKE THE SCOTT

    2    PETERSON TRIAL IS TAKING IN CALIFORNIA AND OTHER TRIALS THAT
    3    YOU READ ABOUT OVER THE COUNTRY.     THERE WILL BE TIMES WHEN YOU

    4    THINK WE'RE DRAGGING OUR FEET, BUT WE'RE REALLY NOT.    AND SOME

    5    DAYS YOU'LL BE IN THE COURTROOM ALL DAY LONG; SOME DAYS YOU'LL
    6    BE HERE PROBABLY A HALF A DAY WHILE WE HAVE TO ATTEND TO OTHER

    7    THINGS, LEGAL ISSUES, WITH THE LAWYERS.
    8               SO, HAVING SAID THOSE PRELIMINARY THINGS TO YOU,

    9    WE'LL NOW HAVE OPENING STATEMENTS.

    10              MISS BARNETT, ARE YOU GOING TO MAKE THE OPENING
    11   STATEMENT?

    12              MS. BARNETT:   YES, YOUR HONOR.
    13              THE COURT:   ALL RIGHT.
    14              MS. BARNETT:   LADIES AND GENTLEMEN, IN FEBRUARY OF

    15   2002, BASED ON THE TIP OF A GAS DELIVERY MAN, AUTHORITIES
    16   FOUND MORE THAN 300 BODIES AT THE MARSH CREMATORY IN NOBLE,
    17   GEORGIA.   AS THE DAYS AND WEEKS AND MONTHS WENT ON WITH THE

    18   INVESTIGATION, THEY FOUND THAT THE MARSH CREMATORY HADN'T
    19   CREMATED REMAINS, THAT THEY HADN'T KEPT RECORDS OF WHAT THEY
    20   DID WITH THE BODIES THAT WERE ENTRUSTED TO THE MARSH

    21   CREMATORY, THAT THEY HAD RETURNED REMAINS TO FAMILIES WITHOUT
                                Page 8
                            Transcript.8.25.04
    22   ANY REGARD TO WHETHER OR NOT THE REMAINS THEY RETURNED WERE IN

    23   FACT THE LOVED ONES OF THE FAMILIES WHO HAD SENT THEM THERE,
    24   WITH NO REGARD TO WHO THEY BELONGED TO, AND EVEN IN FACT AT
    25   TIMES SENT CEMENT BACK TO FAMILIES.



                            OPENING STATEMENT - BARNETT          10



    1               INSTEAD OF RESPECTING THE UNIQUE AND DEAR PERSON

    2    THAT EVERY INDIVIDUAL HAD BEEN TO THEIR FAMILY WHO WAS SENT
    3    THERE FOR CREMATION, THE MARSH CREMATORY TREATED THE REMAINS

    4    AS NO MORE SPECIAL OR INDIVIDUAL THAN A PIECE OF GRAVEL IN A

    5    PILE OR A BLADE OF GRASS IN A FIELD.
    6               MY NAME IS KATHRYN BARNETT, AS THE JUDGE SAID.    I AM

    7    ONE OF THE LAWYERS WHO IS HONORED TO HAVE BEEN APPOINTED BY
    8    THE COURT TO REPRESENT THE FAMILIES WHO ARE HERE SEEKING

    9    JUSTICE.   AND I HAVE A CONFESSION TO MAKE; WHICH IS, I'M

    10   AWFULLY NERVOUS.    SO, PLEASE BEAR WITH ME, BUT THIS IS A CASE
    11   THAT MEANS SO MUCH TO SO MANY.

    12              I WANT TO INTRODUCE A COUPLE MORE PEOPLE WHO ARE

    13   HERE SORT OF ON OUR SIDE OF THE COURTROOM, AND I'M JUST GOING

    14   TO WALK BACK THAT WAY.    WE HAVE SOME CLASS MEMBERS HERE.
    15   CAROL BECHTEL.   YOU PROBABLY HEARD THE NAME BECHTEL WHEN THE

    16   JUDGE WAS TALKING.    THIS IS CAROL BECHTEL.   SHE IS ONE OF THE

    17   CLASS REPRESENTATIVES; AND THE FUNERAL HOME THAT SHE USED,
    18   THEY TRUSTED TRI-STATE WITH BOTH HER PARENTS.    HER MOTHER AND
    19   HER FATHER WERE BOTH SENT THERE FOR CREMATION.

    20              AND THIS IS CRYSTAL TAYLOR, WHO IS ALSO A CLASS
    21   MEMBER.    AND -- THANK YOU, CRIS.   HER MOTHER IS ONE OF THE --
    22   YOU'LL HEAR IS ONE OF THE DECEDENTS WHO WAS SENT DOWN TO

    23   TRI-STATE FOR CREMATION AND WHOSE BODY WAS LATER IDENTIFIED ON
    24   THE GROUNDS.
                                  Page 9
                         Transcript.8.25.04
    25             THERE ARE OTHER CLASS MEMBERS HERE, AND YOU'LL HEAR



                         OPENING STATEMENT - BARNETT             11



    1    FROM OTHER CLASS MEMBERS, BUT CERTAINLY NOT FROM ALL 1,600 OF

    2    THEM.
    3             WE ALSO HAVE LUKE KELLUM, WHO'S A PARALEGAL WORKING

    4    WITH MY FIRM, WHO'S HOPEFULLY GOING TO PULL UP SOME DOCUMENTS.
    5    HE'S BEEN WITH MY OFFICE ABOUT THREE WEEKS NOW, SO HE'S
    6    GETTING QUITE A START.   AND THEN BRENDA PARKER, WHO'S A

    7    PARALEGAL WHO WORKS WITH ME AS WELL.
    8             THAT'S WHO WE ARE.

    9             I WISH THAT I COULD TELL YOU THAT THIS CASE WOULD BE

    10   EASY, BUT I CAN'T.   THIS CASE IS VERY, VERY HARD TO HEAR, AND
    11   IT'S WORSE TO SEE, BUT IT'S IMPORTANT THAT IT BE TOLD.

    12            I WISH THAT I COULD TELL YOU, LIKE LAW AND ORDER OR

    13   PERRY MASON, WHICH IS WHAT I USED TO WATCH GROWING UP, AT THE

    14   END OF THE DAY WE WOULD BE ABLE TO TELL YOU EXACTLY WHAT
    15   HAPPENED WITH EVERY SINGLE PERSON WHOSE REMAINS WERE SENT DOWN

    16   TO TRI-STATE FOR CREMATION, BUT I CAN'T.   YOU'LL FIND THAT THE

    17   MARSH FAMILY DID NOT KEEP RECORDS OF WHAT THEY DID WITH THE

    18   BODIES WHO WENT DOWN THERE, AND BECAUSE THERE ARE NO RECORDS,
    19   AND BECAUSE RAY MARSH IS NOW DEAD, THE ONLY LIVING PERSON WHO

    20   CAN TELL YOU, BRENT MARSH, WON'T.    HE WON'T TELL YOU, AND HE
    21   WON'T TELL THE FAMILIES WHAT HAPPENED TO THEIR LOVED ONES.
    22            IF THERE'S ANY GOOD NEWS, IT IS THIS:    THE TASK AT

    23   HAND IS A PRETTY STRAIGHTFORWARD ONE, AND THE ONLY QUESTION
    24   THAT YOU'RE GOING TO BE ASKED TO DECIDE IS LIABILITY.    IN
    25   FACT, THE CASE BOILS DOWN TO THIS.   IF YOU CAN'T REMEMBER



                         OPENING STATEMENT - BARNETT             12
                              Page 10
                           Transcript.8.25.04



    1    ANYTHING ELSE, TRY TO REMEMBER THIS:     D, R, R, DUTY,

    2    RESPONSIBILITY, AND RESPECT.      THAT'S WHAT THE CASE BOILS DOWN
    3    TO.

    4              DUTY.   RAY MARSH, YOU WILL HEAR, RAN A BUSINESS
    5    WHERE HE DUG GRAVES FOR FUNERAL HOMES IN CEMETERIES.      HE WOULD
    6    TAKE THE BACK HOE OUT, OR HIS EMPLOYEES WOULD, DIG THEIR

    7    GRAVES FOR PEOPLE TO BE LAID TO REST, AND THEN HE WOULD COVER
    8    THE GRAVES UP.    IN ABOUT 1982, HE DECIDED TO OPEN UP A

    9    CREMATORY.   DID HE GO GET TRAINING, DID HE GO TO SEMINARS, DID

    10   HE READ UP ON CREMATORY OPERATIONS?     THE PROOF WILL BE NO.   HE
    11   SIMPLY BOUGHT A USED PIECE OF CREMATORY EQUIPMENT AND SET UP

    12   SHOP BASICALLY IN HIS BACK YARD.     AND BECAUSE HE DIDN'T TAKE

    13   THE TIME TO GET TRAINING, TO LEARN FROM OTHER PROFESSIONALS,

    14   TO LEARN HOW THE BUSINESS WAS SUPPOSED TO BE OPERATED, HE
    15   NEVER ESTABLISHED REASONABLE RECORDS THAT ARE SO IMPORTANT TO

    16   THE BUSINESS.

    17             SOMETHING THAT I HAVE LEARNED, THAT YOU WILL LEARN,

    18   THAT I CERTAINLY DIDN'T KNOW BEFORE, IS THAT WHEN A BODY IS
    19   CREMATED, ALL DNA IS DESTROYED.     AND ONCE A CREMATION IS DONE,

    20   THERE'S ABSOLUTELY NO WAY FOR ANYBODY TO TELL YOU WHO IT IS,

    21   AND THAT'S WHY PEOPLE IN THE BUSINESS TAKE IT SO SERIOUSLY TO
    22   DOCUMENT EVERYTHING.

    23             AND, LUKE, IF YOU COULD PULL UP THAT LOG SHEET.
    24             WHAT THEY DO IN CREMATORIES -- I DON'T KNOW IF YOU
    25   CAN READ THAT.    I'M NOT SURE I COULD READ THAT FROM THERE.



                           OPENING STATEMENT - BARNETT             13




    1    BUT THEY JUST -- IT'S NOT HARD TO DO, BUT IT'S IMPORTANT TO

                                 Page 11
                           Transcript.8.25.04
    2    DO.   THEY LOG DOWN WHO OPERATES THE CREMATORY, WHO'S ACTUALLY
    3    RUNNING THE MACHINE.   THEY ASSIGN A NUMBER TO EVERYBODY WHO'S
    4    ENTRUSTED TO THEM SO THEY CAN KEEP TRACK OF IT; THE FUNERAL

    5    HOME; THE NAME OF WHO THE DECEDENT IS; THE DATE AND TIME THAT
    6    THEY RECEIVED THE REMAINS; THE DATE AND TIME THE PERSON, IF

    7    THEY WERE PLACED IN REFRIGERATION, WAS PLACED IN
    8    REFRIGERATION; THE DATE AND TIME THEY WERE PLACED ACTUALLY
    9    INTO THE CREMATION CHAMBER, WHICH IS THE MACHINE WHERE THE

    10   CREMATION ACTUALLY HAPPENS; THE DATE AND TIME THE CREMATION
    11   WAS COMPLETED; AND THEN THE PERSON WHO RECEIVED THE REMAINS

    12   AFTERWARDS.

    13               AGAIN, IT'S SORT OF MEASURE TWICE, CUT ONCE.     YOU
    14   KEEP ALL THESE RECORDS ON THE FRONT END.     IT'S CRITICAL

    15   BECAUSE AFTER THE CREMATION HAPPENS THERE'S NO WAY TO GO BACK

    16   AND RECREATE THAT.   THAT IS WHAT MR. MARSH NEVER, NEVER DID.

    17               IT WAS A FAMILY BUSINESS.   HIS WIFE WORKED IN THE
    18   BUSINESS, AND ALSO ALONG THE WAY AS HE GREW UP, HIS SON, BRENT

    19   MARSH, AND ALSO EVEN HIS DAUGHTER.      BUT THIS BUSINESS,

    20   CREMATING HUMAN REMAINS, IS NOTHING LIKE THE BUSINESS OF

    21   DIGGING GRAVES.    IT INVOLVES A VERY PERSONAL AND VERY, VERY
    22   SACRED OBLIGATION.

    23               DEAD BODIES ARE VULNERABLE.   THE PEOPLE WHO HAVE

    24   LOST LOVED ONES ARE IN THE WORST OF EMOTIONAL STATES.
    25   PREPARATION OF A DEAD BODY, YOU'LL LEARN, IS A FRAGILE



                           OPENING STATEMENT - BARNETT            14




    1    PROCESS, AND EVEN A SMALL MISTAKE CAN MAKE THINGS GO HORRIBLY
    2    WRONG, AND IMPORTANTLY, IT ALL HAPPENS OUTSIDE THE VIEW OF THE

    3    FAMILIES.
    4                IT IS INCREDIBLY IMPORTANT, AND THAT IS WHY THE LAW

                                 Page 12
                          Transcript.8.25.04
    5    REQUIRES, AND SOCIETY DEMANDS, THAT PEOPLE WHO CHOOSE TO GO
    6    INTO THIS PROFESSION DO SO WITH CARE AND THAT THEY TREAT
    7    BODIES AND REMAINS WITH DIGNITY AND RESPECT BECAUSE, AFTER

    8    ALL, THE REMAINS THAT THEY RECEIVE, THEY DON'T KNOW THEM, THEY
    9    DON'T KNOW THE FAMILIES, BUT IT IS SOMEONE'S MOTHER, SOMEONE'S

    10   CHILD, SOMEONE'S PARENT, SOMEONE'S BROTHER.   IT IS A UNIQUE
    11   SPECIAL INDIVIDUAL, AND THEY DESERVE DIGNITY IN THEIR PASSING.
    12             SO, IN THIS CASE, YOU WILL LEARN THAT THE FAMILIES

    13   THAT I REPRESENT AND THE FUNERAL HOMES THAT THEY USED TRUSTED
    14   THE MARSHES TO PROVIDE SIMPLE DIGNITY IN THE PASSING OF THEIR

    15   LOVED ONES, AND THAT WAS WHAT WAS NOT DELIVERED.

    16             SLOWLY OVER TIME, YOU'LL HEAR, AND IT'S TRUE, BRENT
    17   MARSH BECAME MORE AND MORE INVOLVED.   RAY MARSH BECAME WEAKER,

    18   BECAME OLDER, HAD SOME HEALTH PROBLEMS, AND SLOWLY HE PASSED

    19   THE REINS ON TO HIS SON TO TAKE MORE AND MORE RESPONSIBILITY,

    20   BUT HE NEVER SENT BRENT FOR SEMINARS OR FOR TRAINING OR TO
    21   PROFESSIONALS TO LEARN WHAT'S THE RIGHT WAY TO DO THIS

    22   PROFESSION.

    23             AND WHEN THE NEWS FIRST HIT, YOU MAY HAVE WONDERED:

    24   HOW IN THE WORLD DID THIS YOUNG MAN END UP RUNNING A CREMATORY
    25   WHEN HE HAD NO TRAINING, NO SUPERVISION, AND CLEARLY SUCH



                         OPENING STATEMENT - BARNETT             15




    1    DISRESPECT FOR THE DEAD?   WELL, FOR THE ANSWER TO THAT, YOU
    2    NEED TO LOOK NO FURTHER THAN HIS FATHER.   RAY MARSH RAISED

    3    BRENT MARSH, HE TRAINED BRENT MARSH IN RUNNING A CREMATORY,
    4    AND SLOWLY OVER TIME HE PASSED HIM THE REINS.
    5             THIS CASE IS ABOUT DUTY, AND A QUESTION YOU'LL HAVE

    6    TO ASK YOURSELF IS:   RAY MARSH CHOSE TO GO INTO THIS
    7    PROFESSION, CHOSE TO OPERATE A FAMILY BUSINESS AS A CREMATORY.

                                Page 13
                          Transcript.8.25.04
    8    DID HE OWE MORE TO THE FAMILIES AND THE FUNERAL HOMES WHO
    9    TRUSTED HIM?
    10             THE SECOND POINT I SAID IS R, RESPONSIBILITY.       THIS

    11   CASE IS VERY MUCH ABOUT RESPONSIBILITY.   THESE DAYS, IT SEEMS
    12   LIKE EVERY TIME YOU TURN ON THE NEWS OR READ AN ARTICLE IN THE

    13   PAPER, YOU HEAR SOME STORY ABOUT SOMEBODY WHO DOESN'T WANT TO
    14   TAKE RESPONSIBILITY FOR THEIR ACTIONS.    EVERYBODY WANTS TO SAY
    15   IT WAS SOMEONE ELSE'S FAULT, BLAME SOMEBODY ELSE, SHIRK

    16   RESPONSIBILITY.   PEOPLE WON'T ACCEPT IT THESE DAYS.   AND,
    17   SADLY, THE SAME IS TRUE HERE.

    18             THE DEFENSE CAN'T REALLY ARGUE TO YOU ABOUT THE 300

    19   BODIES THAT WERE FOUND ON THE PROPERTY UNCREMATED, AND SO I
    20   EXPECT THAT THEY WILL ATTEMPT TO USE THE PROOF TO LIMIT THEIR

    21   LIABILITY TO ONLY THOSE THINGS THEY CAN'T DENY AND ARGUE THAT

    22   JANUARY 1ST OF 1997 IS A MAGICAL, SIGNIFICANT DAY IN THE

    23   OPERATION OF THIS FAMILY BUSINESS AND SUDDENLY ON JANUARY 1ST
    24   OF 1997 THERE WAS A REGIME CHANGE.   RAY MARSH DID ALL THE WORK

    25   BEFORE THEN; BRENT MARSH DID ALL THE WORK AFTER THEN.    AND THE



                           OPENING STATEMENT - BARNETT            16




    1    REASON WHY THIS DATE IS CRITICAL -- AND THIS IS A TRUE FACT
    2    YOU'LL HEAR FROM THE INVESTIGATIVE AUTHORITIES.   THEY

    3    RECOVERED 300, MORE THAN 300, BODIES OFF THE PROPERTY.
    4    THEY'VE BEEN ABLE, THANK HEAVENS, TO IDENTIFY ABOUT 226 OF
    5    THOSE BODIES.   OF THE ONES WHO HAVE BEEN IDENTIFIED, THE

    6    EARLIEST DATE OF DEATH IS IN JANUARY OF 1997.
    7             BUT TO SAY THAT SUDDENLY ON THAT DAY IN THAT YEAR --
    8    AND I THINK IT'S RED ON THEIR TIMELINES, IN BIG RED, 1997.      TO

    9    SAY SUDDENLY EVERYTHING CHANGED THAT DAY AND THERE WAS NO
    10   EVIDENCE OF MISHANDLING, NO EVIDENCE OF NEGLECT BEFORE, AND

                                Page 14
                          Transcript.8.25.04
    11   EVERYTHING HAPPENED AFTERWARDS DOES NOT RING TRUE.     THIS WAS A
    12   FAMILY BUSINESS, AND YOU WILL HEAR PROOF, A FAMILY CULTURE OF
    13   DISRESPECT AND OF DISREPAIR.      IT PASSED FROM FATHER TO SON.

    14   IT STRETCHES ALL THE WAY BACK TO 1988.
    15               MR. MARSH, YOU WILL HEAR, DID PASS THE REINS ON TO

    16   HIS SON OVER TIME, BUT THERE'S NO DISPUTE WHATSOEVER, AND
    17   THAT'S WHY -- I SAY MR. MARSH.     I MEAN RAY MARSH PASSED THE
    18   REINS ON.    THERE'S NO DISPUTE THAT HE CONTINUED TO LIVE RIGHT

    19   THERE ON THAT PROPERTY JUST YARDS AWAY FROM THE CREMATORY PAST
    20   THROUGH THE DISCOVERIES AND THE INVESTIGATION AND RIGHT UP

    21   UNTIL THE DAY THAT HE DIED.    HE ALSO CONTINUED TO WRITE CHECKS

    22   FOR THE BUSINESS ALL THE WAY UP THROUGH PAST 2000-2001 AND
    23   REMAINED THE OWNER OF THE BUSINESS.     AND WHO TRAINED BRENT

    24   MARSH?   NO ONE BUT HIS FATHER.    YOU DON'T HAVE TO BE ACTUALLY

    25   DRIVING THE BACK HOE TO DIG MASS PITS TO SHARE IN



                           OPENING STATEMENT - BARNETT            17




    1    RESPONSIBILITY.
    2                AND AS FOR EVIDENCE OF MISHANDLING BEFORE 1997, IT

    3    IS IMPORTANT NOT TO FORGET ABOUT THE MORE THAN 100 BODIES WHO
    4    HAVEN'T BEEN IDENTIFIED AND WHO PROBABLY WILL NEVER BE
    5    IDENTIFIED.   THERE'S NOT A WITNESS WHO CAN COME IN HERE AND

    6    TELL YOU FOR CERTAIN WHO THOSE PEOPLE WERE OR WHEN THEY DIED.
    7    THERE'S NOT ANYONE WHO CAN TELL YOU FOR CERTAIN WHETHER THEY
    8    ALL DIED BEFORE OR AFTER 1997, AND, AGAIN, THERE'S NO RECORDS

    9    THAT CAN ESTABLISH THAT FOR YOU EITHER BECAUSE THE MARSHES
    10   DIDN'T KEEP RECORDS.

    11               KRIS SPERRY TESTIFIED, AND DR. KRIS SPERRY YOU'LL
    12   HEAR FROM.    HE'S THE MEDICAL EXAMINER.   THERE HAVE BEEN PEOPLE

    13   WHO'VE TAKEN POT SHOTS AT THE MEDICAL EXAMINER'S OFFICE AND

                                 Page 15
                          Transcript.8.25.04
    14   THE GBI FOR THE WORK THEY DID, BUT I WILL TELL YOU THAT WHAT
    15   THEY HAD TO DEAL WITH IS NIGHTMARISH, AND THEIR EFFORTS WERE
    16   HEROIC.   BUT HE DESCRIBED WHAT HE FOUND AS A RANDOM MESS.   THE

    17   BODIES WERE BURIED IN MASS GRAVES, DUMPED IN VAULTS, STACKED
    18   IN BUILDINGS, STREWN ACROSS THE GROUNDS.   IT WAS A RANDOM

    19   MESS, AND NO ONE CAN TELL YOU FOR THE MORE THAN 100 BODIES WHO
    20   THEY WERE OR WHEN THEY DIED.
    21             PLUS, THE GEORGIA BUREAU OF INVESTIGATION FOUND

    22   PILES OF CREMATED REMAINS ALL OVER THE PROPERTY.   NOBODY CAN
    23   EVEN TELL YOU HOW MANY PEOPLE THAT IS, MUCH LESS WHO THEY WERE

    24   OR WHEN THEY DIED.    AND YOU WILL HAVE EVIDENCE, HEAR EVIDENCE,

    25   OF BONES THAT WERE THERE EVEN AFTER THE GBI HAD FINISHED THEIR



                          OPENING STATEMENT - BARNETT           18




    1    INVESTIGATION.   THEY SIMPLY COULDN'T GET ALL THE BONES OFF THE
    2    PROPERTY, AND THERE ARE PROBABLY STILL BONES AND PITS OF

    3    PEOPLE THERE TO THIS VERY DAY.    THEY CAN'T BE IDENTIFIED, AND
    4    NO ONE CAN TELL YOU WHEN THEY DIED OR WHETHER IT WAS BEFORE OR

    5    AFTER 1997.

    6              YOU WILL ALSO HEAR PROOF FROM FAMILIES, STARTING
    7    BACK IN 1988, GOING THROUGH THE EARLY 90'S, ALL THE WAY UP
    8    UNTIL THE END, WHO GOT REMAINS BACK THAT WERE IN FACT HUMAN

    9    REMAINS, BUT THEY HAD TEETH AND DENTAL WORK AND JEWELRY AND
    10   PIECES OF METAL THAT DID NOT BELONG TO THE PERSON THOSE

    11   FAMILIES SENT DOWN.   ASHES TO ASHES AND DUST TO DUST DOESN'T
    12   MEAN THAT A FAMILY GIVES UP THEIR RIGHT TO THE SPECIAL

    13   IDENTITY OF THE PERSON THEY TRUST TO A FUNERAL HOME AND A
    14   CREMATORY, AND IT CERTAINLY DOESN'T MEAN THAT THE FAMILIES
    15   DIDN'T CARE WHO THEY GOT BACK.    EVERY CREMATORY OPERATOR WHO

    16   WILL COME AND TESTIFY TO YOU ABOUT THE PRACTICE WILL SAY

                                 Page 16
                          Transcript.8.25.04
    17   THERE'S ABSOLUTELY NO REASON IN A PROPERLY RUN CREMATORY FOR
    18   PEOPLE TO GET BACK REMAINS LIKE THAT THAT CONTAIN ITEMS THAT
    19   ARE NOT THEIR LOVED ONE'S.

    20              THE 1997 REGIME CHANGE ARGUMENT IS CONVENIENT FOR
    21   THE MARSHES, BUT THIS CASE IS ABOUT RESPONSIBILITY AND WHO ALL

    22   IS RESPONSIBLE, AND THE QUESTION YOU'LL HAVE TO ASK YOURSELF
    23   IS WHETHER RAY MARSH AND HIS LAWYERS CAN REALLY LAY ALL THE
    24   BLAME FOR WHAT HAPPENED AT THE FEET OF HIS SON.

    25              THE FINAL THING I WANT TO TALK ABOUT IS RESPECT, AND



                          OPENING STATEMENT - BARNETT          19




    1    THAT IS REALLY WHAT THIS CASE IS ABOUT AND WHAT THE FAMILIES
    2    WANT.   REMEMBER, EACH ONE OF THESE FAMILIES, EVERY FAMILY I

    3    REPRESENT, WENT THROUGH THE WORST IMAGINABLE.   THEY LOST
    4    SOMEONE WHO THEY LOVED DEARLY, AND THEY THOUGHT THAT THEY HAD

    5    CARRIED OUT THE LAST WISHES OF THEIR LOVED ONES.   THEY THOUGHT

    6    THEY HAD PROVIDED THEM WITH A SIMPLE, DIGNIFIED, RESPECTFUL
    7    DISPOSITION, AND NOW EVERY ONE OF THESE FAMILIES HAS LEARNED

    8    SOMETHING UNIMAGINABLE, WHICH IS THAT THEIR GRANDMOTHER, THEIR

    9    CHILD, THEIR FATHER, THEIR BROTHER, WERE SENT TO THE MARSHES'
    10   CREMATORY, A PLACE THAT SHOWED UTTER DISRESPECT.

    11             THERE ARE 226 REMAINS OR PARTS OF REMAINS THAT,
    12   THANKS TO THE EFFORTS OF THE GBI, HAVE BEEN IDENTIFIED AND

    13   RETURNED TO THEIR FAMILIES, BUT WHAT OF THE FAMILIES WHO
    14   RECEIVED FROM THE MARSHES NOTHING BUT URNS FULL OF CEMENT?
    15   WHAT OF THE FAMILIES WHO RECEIVED FROM THE MARSHES REMAINS

    16   THAT ARE HUMAN BUT THE ONLY THING THAT'S IDENTIFIABLE IN THEM
    17   DOESN'T BELONG TO THEIR LOVED ONE?   WHAT OF THE MANY, MANY,
    18   MANY FAMILIES IN THIS CASE WHO ALL THEY KNOW IS THAT THEY GOT

    19   REMAINS THAT ARE HUMAN, AND THEY CAN NEVER KNOW WHO IT IS OR

                                Page 17
                          Transcript.8.25.04
    20   WITH ANY CERTAINTY WHETHER OR NOT IT'S THEIR LOVED ONE, AND
    21   THAT THERE ARE ABSOLUTELY NO RECORDS THAT ANYONE CAN POINT TO
    22   THAT WOULD SAY ON THIS DAY THEY WERE PUT IN THE CREMATORY AT

    23   THIS TIME, THE CREMATION RAN TILL THIS TIME, SO-AND-SO TOOK
    24   THEM OUT AND GAVE THEM BACK TO THE FUNERAL HOME?      THERE'S NO

    25   RECORDS LIKE THAT TO GIVE THEM ANY ANSWERS.



                            OPENING STATEMENT - BARNETT            20



    1              AND WHAT OF THE MORE THAN 100 BODIES WHO HAVE NOT

    2    BEEN IDENTIFIED?   THOSE PEOPLE PROBABLY WILL NEVER BE
    3    IDENTIFIED.   AND I WANT TO TALK ABOUT JUST ONE OF THEM.

    4              IF YOU DON'T MIND PULLING THAT FORM UP.

    5              YOU'LL HEAR ABOUT DMORT; WHICH, I DIDN'T KNOW ABOUT
    6    THAT EITHER BEFORE THIS.   IT IS -- I'LL NEVER GET THIS RIGHT

    7    -- THE DISASTER MORTUARY OPERATIONS RESPONSE TEAM, I THINK.
    8    THEY ARE A FEDERAL AGENCY.   THEY COME INTO NATURAL DISASTERS

    9    AND ALSO TO THINGS LIKE AIRPLANE CRASHES.     THEY WERE AT 9-11.

    10   THEY COME TO HELP FIND BODIES, RECOVER THEM, IDENTIFY THEM,
    11   AND RETURN THEM.   AND THEIR STANDARD PROTOCOL IF THEY FIND --

    12   EVERY TIME THEY SEE A PERSON -- AND IT MAY NOT BE A WHOLE

    13   BODY.   IT MAY BE JUST A VERY PARTIAL FRAGMENT OF A BODY.
    14   EVERY TIME THEY FIND ONE, THEY GIVE IT A NUMBER, AND THEY

    15   TRACK EVERYTHING THEY CAN ABOUT IT.     AND THEN AS PEOPLE ARE
    16   IDENTIFIED, THEY GET THEIR NAME BACK, AND THEY DON'T HAVE A
    17   NUMBER.   BUT I WANT TO TALK ABOUT JUST ONE OF THE

    18   UNIDENTIFIED.   THIS ONE IS BODY NUMBER 158.     THIS IS THE FORM
    19   THAT DMORT ACTUALLY FILLS OUT.
    20             LUKE, CAN YOU BLOW UP THE MIDDLE PART?

    21             I DON'T KNOW IF YOU GUYS CAN SEE THAT OR NOT, BUT

    22   WHAT WE KNOW ABOUT BODY 158:      POSSIBLY FEMALE.   WHAT THEY

                                 Page 18
                          Transcript.8.25.04
    23   FOUND WAS A PARTIAL CRANIUM AND JAW AND A LEFT UPPER LEG, LEFT
    24   LOWER LEG.   IT SAYS DOWN HERE THEY THINK SHE'S OLDER BECAUSE
    25   SHE HAD ARTHRITIS AND HAD A -- HAD BROKEN, BROKEN HER ANKLE,



                          OPENING STATEMENT - BARNETT            21



    1    BROKEN HER ANKLE IN BOTH, BOTH BONES OF THE ANKLE.

    2              CAN YOU SHOW THE NEXT DOCUMENT?    THIS IS ANOTHER ONE
    3    FROM THEIR FILES.   CAN YOU BLOW THAT UP?
    4              BODY 158 WAS FOUND AS A SKULL IN SEVERAL PIECES

    5    FOUND IN A PILE WITH 140 AND 143 AND 159.
    6              CAN YOU TAKE THAT OFF?

    7              BODY 158, WE KNOW WHEN SHE PASSED AWAY HER SOUL HAD
    8    DEPARTED AND SHE WAS BEYOND PAIN, BUT THE LIVING OWE A DUTY TO

    9    THE DEAD TO GIVE RESPECT.   WE WILL NEVER KNOW WHO SHE WAS, BUT

    10   WE KNOW THAT SOMEONE LOVED HER, SOMEONE MOURNED HER LOSS, AND
    11   WE KNOW THAT SHE HAD A NAME THAT'S BEEN FOREVER LOST.    CAN'T

    12   TELL YOU MUCH ABOUT HER, BUT WE KNOW THAT SHE PROBABLY TOOK

    13   HER FIRST STEPS ON THAT LEFT LEG WHILE HER PARENTS HELD THEIR

    14   BREATH.   LATER IN LIFE, SHE WALKED DOWN THE AISLE IN MARRIAGE
    15   HOLDING ON TO HER FATHER, MAYBE WITH HER KNEES SHAKING, LONG

    16   BEFORE THE ARTHRITIS -- IT SAYS ARTHRITIS ON THERE -- LONG
    17   BEFORE THE ARTHRITIS SET IN.     MAYBE SHE BOUNCED HER BABY SON

    18   ON HER KNEE, AND MAYBE SHE BROKE THAT ANKLE CHASING HER
    19   GRANDKIDS AROUND AT A FAMILY PICNIC.    WE WILL NEVER KNOW WHO
    20   SHE IS, WE WILL NEVER KNOW WHEN SHE DIED, SHE WILL NEVER BE

    21   RETURNED TO HER FAMILY, BUT WE KNOW THAT THEY LOVED HER, AND

    22   IN THEIR HOUR OF DARKEST NEED THEY TRUSTED PROFESSIONALS TO
    23   PROVIDE HER SIMPLE DIGNITY IN HER PASSING.

    24             AND WE DON'T KNOW WHO THEY ARE, BUT WE KNOW THAT THE
    25   FAMILY OF THIS ONE BODY AND ALL THE OTHERS IS ONE OF THE MANY

                                Page 19
                           Transcript.8.25.04


                           OPENING STATEMENT - JENKINS             22



    1    FAMILIES IN THIS CLASS WHO ARE HERE SEEKING JUSTICE, WHO WILL

    2    NEVER KNOW WHAT BEFELL THE REMAINS OF THEIR LOVED ONE AND WILL
    3    NEVER KNOW THAT THEY CAN PAY HER THE RESPECT THEY TRIED TO BY
    4    HONORING HER FINAL WISHES.

    5             DUTY, RESPECT, RESPONSIBILITY.        THAT'S ALL THAT
    6    THESE FAMILIES WANTED, AND IT'S WHAT THEY'RE ASKING FOR NOW.

    7             I WANT TO THANK YOU, BEFORE I SIT DOWN, FOR THE
    8    DIFFICULT TASK AHEAD.   IT WILL NOT BE EASY, BUT IT IS VERY,

    9    VERY IMPORTANT TO GIVE ATTENTION TO AND PAY RESPECT TO THOSE

    10   WHO'VE BEEN SO DISRESPECTED.      THANK YOU.
    11            THE COURT:     THANK YOU, MISS BARNETT.

    12            MR. JENKINS?

    13            MR. JENKINS:    THANK YOU, YOUR HONOR.     I NEED TO MOVE

    14   MY PROPS OVER, IF I CAN, JUST VERY QUICKLY.
    15            THE COURT:     YES, SIR.

    16            MR. JENKINS:    WILL THAT BE IN YOUR HONOR'S WAY?

    17            THE COURT:     NO, NO.   IT'S FINE.

    18            MR. JENKINS:    GOOD MORNING, LADIES AND GENTLEMEN.       I
    19   KNOW WE'VE MET.   WE'VE HAD A CHANCE TO TALK A LOT TOGETHER
    20   OVER THE LAST COUPLE OF DAYS, BUT I WANT TO BE SURE YOU KNOW

    21   SOME OF THE OTHERS WHO ARE INVOLVED WITH OUR TEAM OVER HERE,

    22   AND LET ME MAKE SURE YOU GET INTRODUCED TO EVERYBODY.
    23            THIS IS CLARA MARSH, AND YOU'VE SEEN HER HERE.          SHE

    24   IS --
    25            THE COURT:     I'M NOT SURE IF THEY CAN ALL SEE WITH



                           OPENING STATEMENT - JENKINS             23



                                 Page 20
                           Transcript.8.25.04
    1    THIS BOARD UP HERE, MR. JENKINS.

    2             MR. JENKINS:     MAYBE NOT.
    3             THE COURT:    YOU MAY WANT TO MOVE IT FOR A MOMENT.
    4             CAN Y'ALL SEE OVER AT COUNSEL TABLE ALL RIGHT?

    5             MR. JENKINS:     OKAY.   THIS IS CLARA MARSH, AND CLARA
    6    IN THIS CASE IS WHAT IS CALLED THE ADMINISTRATOR OR
    7    ADMINISTRATRIX, TO USE THE FANCY LEGAL TERM, OF THE ESTATE OF

    8    HER HUSBAND, RAY MARSH.   I'M GOING TO USE THE TERM RAY MARSH

    9    TO REFER TO HER HUSBAND BECAUSE RAY AND BRENT MARSH HAVE
    10   ALMOST THE SAME NAME, SO RAY WILL BE THE WAY WE'LL IDENTIFY
    11   THE HUSBAND, FORMER HUSBAND, OF CLARA MARSH.    HE DIED LAST

    12   SUMMER, AND SHE BECAME THE REPRESENTATIVE OF HIS ESTATE.     SHE

    13   IS IN THIS LAWSUIT.    THEY HAVE SUED RAY MARSH'S ESTATE SINCE
    14   HE NO LONGER LIVES.    THAT'S THE WAY THE LAW PROVIDES, THAT

    15   THEY SUE THE ESTATE, AND SO SHE IS HERE AS THE ADMINISTRATOR

    16   OF THAT ESTATE.   THAT'S WHY CLARA IS IN THE CASE.

    17            THANK YOU, CLARA.

    18            THIS IS BRENT MARSH, WHO'S THE SON OF RAY MARSH, AND
    19   HE IS ALSO NAMED AS A PARTY IN THE CASE.

    20            I WANT TO INTRODUCE YOU ALSO TO LORI CORNTASSEL, WHO

    21   IS MY VERY ABLE PARALEGAL, AND I DON'T KNOW WHAT I'D DO
    22   WITHOUT HER, SHE HELPS SO MUCH.
    23            NEXT TO HER IS AN ATTORNEY WITH WHOM I HAVE THE

    24   PLEASURE OF PRACTICING LAW, BRANDON BOWEN.    HE'S IN MY FIRM.

    25            AND I DON'T THINK YOU MET, WHEN WE INTRODUCED PEOPLE



                           OPENING STATEMENT - JENKINS           24



    1    EARLIER, J.J. WALKER, WHO I ALSO HAVE THE PLEASURE OF
    2    PRACTICING LAW WITH.   SHE'S A NEW MOTHER AND SHE'S JUST BACK,

    3    SO WE'RE GLAD TO HAVE HER WITH US.
                               Page 21
                           Transcript.8.25.04
    4                AND YOU'VE MET STUART JAMES.   STUART IS AN ATTORNEY

    5    IN CHATTANOOGA, AND HE AND I ARE WORKING TOGETHER IN THIS
    6    CASE.
    7                ONE OF THE THINGS THAT I DO WANT TO STRESS -- AND

    8    THERE WERE QUESTIONS THAT WERE ASKED OF YOU EARLIER.    I NOTICE
    9    THAT MISS BARNETT REFERS FREQUENTLY TO THE MARSH FAMILY, THE
    10   MARSHES, AND SO FORTH.    AND I WANT TO DRAW THE DISTINCTION,

    11   AND I THINK YOU'LL SEE WHY WHEN YOU HEAR MY STATEMENTS THIS

    12   MORNING, THAT RAY MARSH WAS THE FATHER, AND BRENT MARSH IS THE
    13   SON, WHO IS HERE TODAY, AND THERE IS A DISTINCTION BETWEEN THE
    14   TWO AND THE TIMES THAT THE CREMATORY WAS OPERATING.

    15               RAY MARSH AND CLARA MOVED TO WALKER COUNTY IN THE

    16   EARLY 60'S, I THINK.   CLARA, IN THE EARLY 60'S, STARTED
    17   TEACHING SCHOOL IN WALKER COUNTY, AND SHE TAUGHT FOR OVER 30

    18   YEARS.    YOU'VE HEARD MISS ATWOOD, WHO WAS ONE OF THE JURORS IN

    19   THE POOL, SAY THAT SHE HAD BEEN TAUGHT BY CLARA MARSH.     SHE

    20   HAS TAUGHT PROBABLY LITERALLY THOUSANDS OF STUDENTS OVER THAT

    21   30 YEARS.    SHE ALSO WAS VERY ACTIVE IN WORKING WITH DFACS AND
    22   WORKING WITH DRUG PROGRAMS, DRUG PREVENTIVE PROGRAMS, AMONG

    23   YOUTH IN THE COUNTY.   YOU'LL HEAR SOME OF THE THINGS THAT

    24   CLARA MARSH ACCOMPLISHED IN HER LIFE, IN HER LONG TIME AS A
    25   SCHOOL TEACHER.



                           OPENING STATEMENT - JENKINS           25




    1                RAY MARSH, PRIOR TO 1982, OPERATED A GRAVE DIGGING
    2    SERVICE CALLED MARSH VAULT AND GRAVE DIGGING.    HE SOLD VAULTS,
    3    AND HE PERFORMED GRAVE DIGGING FOR FUNERAL HOMES AND THE

    4    CEMETERIES IN AND AROUND THE NORTHWEST GEORGIA AREA.    HE DID
    5    THAT FOR A NUMBER OF YEARS, AND THAT'S THE ONLY BUSINESS THAT
    6    HE HAD.
                                  Page 22
                          Transcript.8.25.04
    7              RAY EVIDENTLY NOTICED IN LATE 70'S, EARLY 80'S, THAT

    8    THERE WERE NO CREMATORY SERVICES AVAILABLE, AND CREMATIONS
    9    WERE BECOMING MORE AND MORE FREQUENT AT THAT TIME.    IT USED TO
    10   BE THAT CREMATIONS OF COURSE WERE JUST NOT THE WAY WE FOLKS IN

    11   THE SOUTH HANDLED FUNERAL MATTERS, BUT THEY WERE BECOMING MORE
    12   AND MORE THE THING THAT WAS BEING DONE.   AND RAY EVIDENTLY
    13   LOOKED AROUND AND SAW THAT THERE WERE NO CREMATORIES IN NORTH

    14   GEORGIA TO ASSIST IN THAT, SO IN 1982 HE PUT TOGETHER $20,000

    15   IN EFFECT AND BOUGHT A CREMATION CHAMBER.   YOU'LL HEAR IT
    16   CALLED A BUNCH OF THINGS IN THIS TRIAL.   AND THAT IS THE
    17   CHAMBER IN WHICH THE BODIES WERE ACTUALLY CREMATED.      YOU'LL

    18   SEE PLENTY OF PICTURES OF IT AS WELL.

    19             THIS IS ONE THAT HE BOUGHT THAT WAS MANUFACTURED BY
    20   A COMPANY CALLED I.E.E., OR WE'LL CALL IT THAT.    THOSE ARE THE

    21   INITIALS OF THE NAME OF THE COMPANY OUT OF FLORIDA.      IT'S A

    22   RESPECTED COMPANY.    IT STILL IS IN BUSINESS.   IT MAKES

    23   RESPECTED CREMATION MACHINES.   AND HE PUT TOGETHER $20,000,

    24   QUITE AN INVESTMENT AND QUITE A RISK THAT HE TOOK TO START THE
    25   CREMATION BUSINESS IN 1982, AND HE PERFORMED CREMATIONS FOR



                          OPENING STATEMENT - JENKINS             26




    1    FUNERAL HOMES THROUGHOUT TENNESSEE, SOME IN ALABAMA, AND OF
    2    COURSE IN NORTH GEORGIA.   HE WAS IN FAIRLY HIGH DEMAND AND, I

    3    THINK YOU WILL SEE FROM THE RECORDS, MADE A SUCCESS DURING THE
    4    TIME THAT RAY OPERATED THE CREMATORY.

    5             NOW, MISS BARNETT SAID THAT THERE WERE NO RECORDS,
    6    AND I'M NOT SURE WHY SHE SAID THAT BECAUSE I WILL SHOW YOU THE
    7    RECORDS THAT WERE MAINTAINED BY RAY MARSH DURING THE OPERATION

    8    OF THE CREMATORY.    HE HAD BOOKS THAT WERE LIKE DAILY
    9    CALENDARS.   YOU KNOW, THEY COME IN BOOKS, AND YOU TURN THE
                                Page 23
                           Transcript.8.25.04
    10   PAGE AND THERE'S A DATE ON IT FOR EACH PAGE.    HE USED ONE OF

    11   THOSE FOR EACH YEAR.    AND IN THE DATES OR WHERE IT SHOWS THE
    12   DATES, HE WOULD ENTER THE INFORMATION ABOUT HIS GRAVE DIGGING
    13   SERVICE, WHERE FUNERALS WERE, THE TIME OF THE FUNERAL, WHO IT

    14   INVOLVED, THE FUNERAL HOME INVOLVED.   AT THE END OF THIS
    15   CALENDAR BOOK OR DATE BOOK WERE SEVERAL PAGES AT THE END, NOT
    16   BY DATE, AND WHAT YOU WILL SEE, AND WE'LL SHOW YOU THIS, ARE

    17   THE NAMES OF THE PERSONS OR BODIES, IF YOU WILL, THAT WERE

    18   BROUGHT TO THE CREMATORY TO BE CREMATED.
    19             NOW, ONE OF THE THINGS THAT IS CLEAR HERE:     YOU'RE
    20   GOING TO HEAR FROM VARIOUS EXPERTS WHO COME FROM URBAN AREAS

    21   IN -- I EXPECT YOU WILL HEAR AN EXPERT, FOR EXAMPLE, WHO HAS A

    22   CREMATORY IN NASHVILLE.    THIS WAS A RURAL CREMATORY.   IT WAS A
    23   RURAL BUSINESS.   IT WAS RUN BY A FAMILY TO BEGIN WITH AND PART

    24   OF A FAMILY BUSINESS.    INDEED, FROM THE OUTSET THERE WERE

    25   TIMES WHEN THE WHOLE FAMILY WAS INVOLVED IN THE OPERATION.



                           OPENING STATEMENT - JENKINS            27




    1    BUT IT IS NOT GOING TO BE LIKE, AS YOU WILL SEE, A CREMATORY
    2    IN NASHVILLE, TENNESSEE.   IT IS A RURAL CREMATORY.   BUT IT

    3    SERVED A VERY IMPORTANT PURPOSE, AND ONE REASON IT SERVED AN
    4    IMPORTANT PURPOSE IS THAT IT DIDN'T CHARGE SO MUCH FOR

    5    CREMATIONS BECAUSE IT WAS A FAMILY BUSINESS AND BECAUSE IT WAS
    6    IN A RURAL AREA, WHERE EXPENSES ARE NOT SO GREAT AS IN AN
    7    URBAN AREA.   AND IT PROVIDED A SERVICE FOR MANY, MANY YEARS

    8    FOR THE COMMUNITY AND FOR PEOPLE WHO HAVE CREMATIONS, SO IT
    9    WASN'T SO EXPENSIVE.    AND OF COURSE THAT'S ONE REASON THAT
    10   PEOPLE CHOOSE CREMATIONS, IS BECAUSE IT IS SO MUCH LESS

    11   EXPENSIVE THAN BURIAL, AND WE KNOW THAT.
    12            SO, YOU WILL SEE THESE RECORDS.    AND RAY WOULD ENTER
                              Page 24
                           Transcript.8.25.04
    13   -- IN THE BACK OF HIS BOOK, HE WOULD ENTER THE NAME OF THE

    14   PERSON, THE DATE, THE FUNERAL HOME, WHETHER THEY WERE RETURNED
    15   OR NOT, AND YOU'LL SEE THESE.    SO, I'M NOT SURE WHY MISS
    16   BARNETT SAID THERE WERE NO RECORDS.

    17              NOW, WE DON'T HAVE ABSOLUTELY ALL THE RECORDS.     RAY
    18   OPERATED THE CREMATORY UP UNTIL EITHER '95 OR PERHAPS EARLY
    19   '96.   MISS BARNETT SAID JANUARY 1 OF '97 THERE WAS A REGIME

    20   CHANGE.    I'M GOING TO SHOW YOU THAT THAT'S NOT THE CASE.

    21              THE RECORDS THAT -- THERE'S, FOR EXAMPLE, ONE YEAR
    22   MISSING.   SOMETHING HAPPENED TO THE BOOK.    NOW, THESE RECORDS
    23   WERE TAKEN BY THE GBI OUT OF THE CREMATORY IN 2002, AND

    24   HOPEFULLY IT WILL BE FORGIVEN OF RAY THAT THERE MAY BE A YEAR

    25   OR SOMETHING MISSING OF THOSE BOOKS; THAT I THINK, FOR



                           OPENING STATEMENT - JENKINS            28




    1    EXAMPLE, 1994 IS MISSING.   WELL, THOSE BOOKS, WE'RE TALKING

    2    ABOUT THOSE BOOKS BEING TAKEN FROM THE CREMATORY EIGHT YEARS
    3    LATER, BUT YOU'LL SEE THAT THERE WAS A VERY METICULOUS

    4    RECORDKEEPING PROCESS THAT RAY FOLLOWED.

    5               NOW, YOU SAW THE FORM.   IT WASN'T A FANCY FORM LIKE
    6    MAY BE USED IN A MORE URBAN AREA.      I'M NOT FAMILIAR WITH THAT

    7    CREMATORY.   BUT IT WAS WRITTEN DOWN, AND IT WAS A GOOD AND
    8    VALUABLE AND RELIABLE RECORD OF WHO CAME.
    9               YOU'LL ALSO SEE THAT DURING THAT TIME THERE WERE

    10   MAYBE 90 TO 100 CREMATIONS IN THE COURSE OF A YEAR, SO WE'RE
    11   TALKING ABOUT AN AVERAGE -- YOU'LL GET TO SEE THOSE -- AN
    12   AVERAGE OF ABOUT TWO A WEEK.    SO, WE DON'T FACE OR RAY DIDN'T

    13   FACE THE PROBLEM WITH HAVING CREMATIONS LIKE WE DO IN SOME OF

    14   THE URBAN AREAS WHERE THERE MAY BE 10 OR 15 BODIES THAT COME
    15   IN ONE DAY, WHERE THE RECORDKEEPING AND THE IDENTIFICATION
                               Page 25
                           Transcript.8.25.04
    16   BECOMES REALLY ACUTE.    SO, YOU'LL HAVE AN OPPORTUNITY TO SEE

    17   THOSE RECORDS.
    18               I TOLD YOU THAT IT WAS A FAMILY BUSINESS, AND IT
    19   WAS.    CLARA, IN THE TIMES WHEN SHE WAS NOT TEACHING SCHOOL OR

    20   THE EVENINGS, WOULD TAKE PHONE CALLS OR PREPARE STATEMENTS OR
    21   BILLS OR DO THE BOOKKEEPING TYPE OF WORK FOR THE CREMATORY.
    22   AND SHE WAS NOT INVOLVED IN THE CREMATIONS THEMSELVES, BUT SHE

    23   DID PARTICIPATE UP UNTIL THE TIME RAY WAS NOT ABLE TO WORK IN

    24   THE CREMATORY ANYMORE, AROUND '95, '96, AND THEN ON OCCASION
    25   SHE MIGHT TAKE A CALL OR WRITE A CHECK OR SOMETHING LIKE THAT.



                           OPENING STATEMENT - JENKINS            29




    1    BUT ONCE RAY WAS OUT OF THE CREMATORY BUSINESS, HE WAS

    2    DISABLED.   SHE WAS STILL TEACHING SCHOOL, SO SHE DEVOTED HER
    3    TIME TO RAY, TO HER WORK, AND HAD FAIRLY LITTLE INVOLVEMENT IN

    4    THE OPERATION OF THE CREMATORY.

    5                LASHEA, WHO IS THE DAUGHTER OF CLARA AND RAY, WE
    6    EXPECT YOU WILL HEAR FROM LASHEA.      SHE WORKED ALSO IN THE

    7    CREMATORY, AS DID BRENT, DURING THE TIME THAT THEIR FATHER
    8    OPERATED THE CREMATORY.   THEY WOULD ASSIST THEIR FATHER, AND
    9    IT WAS -- DURING THE 80'S IT WAS A FAMILY BUSINESS.     LASHEA

    10   WAS BORN IN 1970, I BELIEVE, SO WHEN THE CREMATORY WAS FIRST
    11   OPEN, SHE WAS 12 YEARS OLD.   SO, SHE WAS A TEENAGER DURING THE
    12   TIME THAT SHE ASSISTED HER FATHER, AS WAS BRENT, DURING THE

    13   80'S AND EARLY 90'S.    LASHEA GAINED SO MUCH EXPERIENCE AND

    14   INTEREST IN THE BUSINESS THAT SHE NOW IS A LICENSED FUNERAL
    15   DIRECTOR AND INVOLVED IN OTHER WORK OUTSIDE OF THE CREMATORY.

    16               NOW, THE BUSINESS -- AND YOU'LL HEAR A LOT ABOUT

    17   THIS.   THE BUSINESS THAT WAS OPERATED WAS CALLED TRI-STATE
    18   CREMATORY, INC.   IT WAS A CORPORATION.    RAY WAS A GOOD
                                Page 26
                           Transcript.8.25.04
    19   BUSINESSMAN.    HE INCORPORATED HIS BUSINESS IN THE EARLY 80'S,

    20   AND HE MAINTAINED THAT CORPORATION, CALLED TRI-STATE
    21   CREMATORY, INC.   WE'LL OFTEN REFER TO THE CREMATORY AS
    22   TRI-STATE SO YOU'LL KNOW EXACTLY WHAT WE'RE TALKING ABOUT.

    23   YOU PROBABLY READ ABOUT AND HEARD ABOUT TRI-STATE PLENTY ON
    24   MATTERS THAT CAME TO YOUR ATTENTION EARLIER.
    25               BUT, YOU KNOW, TO HAVE A CORPORATION, YOU HAVE TO



                           OPENING STATEMENT - JENKINS          30




    1    PAY.    YOU HAVE TO REGISTER THE CORPORATION EVERY YEAR, AND YOU

    2    HAVE TO PAY A REGISTRATION FEE.   IT'S NOT AN EXCESSIVE FEE.    I
    3    THINK IT'S LESS THAN $50.   BUT YOU HAVE TO PAY AND REGISTER

    4    WITH THE SECRETARY OF STATE IN ORDER TO MAINTAIN THE

    5    CREMATORY.   WHAT YOU'LL LEARN IN THIS CASE IS THAT IN 1997, I
    6    BELIEVE JULY OF '97, THE CORPORATION WAS DISSOLVED.    IT WAS

    7    DISSOLVED BY THE SECRETARY OF STATE BECAUSE THE REGISTRATION
    8    FEE WAS NOT PAID IN '95.    SO, IN '97 IT WAS ACTUALLY DISSOLVED

    9    AND NO LONGER EXISTED AFTER THAT.

    10              RAY MARSH WAS A BUSINESSMAN AND RESPECTED IN HIS
    11   COMMUNITY.   YOU'LL HEAR, FOR EXAMPLE, THAT THE COMMISSIONER OF

    12   WALKER COUNTY CELEBRATED A RAY MARSH DAY FOR WALKER COUNTY
    13   DURING THE TIME THAT HE WAS ACTIVE AND ABLE TO PERFORM HIS
    14   WORK.   SO, HIGHLY REPUTABLE, HIGHLY RESPECTED BUSINESSMAN

    15   WITHIN THE COMMUNITY, AND DID WELL FOR HIMSELF, ESPECIALLY AS
    16   A MINORITY IN WALKER COUNTY.   HE AND CLARA DID VERY WELL FOR
    17   THEMSELVES IN THE OPERATION OF THEIR BUSINESS.

    18              NOW, WHAT WE'LL SEE IS THAT THINGS STARTED CHANGING
    19   FOR RAY IN '94.   AT THAT TIME, BRENT WAS IN SCHOOL.   BRENT
    20   WENT TO THE UNIVERSITY OF CHATTANOOGA -- I MEAN UNIVERSITY OF

    21   TENNESSEE AT CHATTANOOGA, PLAYED FOOTBALL THERE.   AND HE WAS
                               Page 27
                          Transcript.8.25.04
    22   THERE, BUT HE WOULD COME BACK AND ASSIST HIS FATHER FROM TIME

    23   TO TIME.   LASHEA WOULD ASSIST DURING THIS TIME.    BUT IN '94 WE
    24   BEGIN TO SEE THE FIRST SIGNS OF RAY'S REALLY FAILING HEALTH.
    25   IN 1988, HE HAD BYPASS HEART SURGERY, PRETTY SERIOUS STUFF,



                          OPENING STATEMENT - JENKINS             31



    1    PARTICULARLY IN 1988.     WE THINK OF IT MORE ROUTINE TODAY THAN

    2    WE DID BACK THEN, BUT HE HAD SOME DISABLING, PERHAPS AS A
    3    RESULT OF THE '88 SURGERY.

    4               YOU WILL HEAR FROM DR. DUHON.    DR. DUHON IS A

    5    PHYSICIAN IN LAFAYETTE.    HE TREATED RAY FROM 1988 UNTIL HIS
    6    DEATH A YEAR AGO.    SO, YOU'LL GET A BROAD PICTURE OF WHAT WAS

    7    HAPPENING TO RAY AND HIS HEALTH DURING THAT TIME.
    8               AND, FOR EXAMPLE -- AND IF WE COULD PUT UP THAT

    9    FIRST MEDICAL RECORD, PLEASE, SIR.

    10              CAN YOU ALL SEE THAT?    IS THE BOARD IN THE WAY?    LET
    11   ME MOVE THAT OUT OF THE WAY.      THAT'S NOT A GOOD PLACE, IS IT?

    12   IS THAT ALL RIGHT?

    13              THE COURT:   IT'S ALL RIGHT.   IT'S JUST GOING TO BE

    14   THERE TEMPORARILY.
    15              MR. JENKINS:   OKAY.

    16              THESE ARE DR. DUHON'S RECORDS ON RAY.    AND YOU SEE

    17   THE DATE HERE:   8-18-94, AUGUST OF '94.    THE ENTRY MADE BY
    18   DR. DUHON, YOU'LL HEAR HIM TESTIFY:     SPEECH SLURRED, STARTED I
    19   THINK TUESDAY WITH HEADACHE AND COULDN'T KEEP BALANCE.       SAID

    20   BETTER AND SUNDAY.   I CAN'T READ ALL OF IT MYSELF.
    21              THEN THEY SCHEDULED AN MRI -- WE'RE ALL FAMILIAR
    22   WITH WHAT AN MRI IS I THINK -- AND ULTRASOUND FOR CAROTID

    23   ARTERIES, WHICH ARE THE ARTERIES IN THE NECK.     AND WHAT
    24   DR. DUHON IS GOING TO TELL YOU IS THAT, AS TIME WENT ON AND
                               Page 28
                           Transcript.8.25.04
    25   RAY WENT TO SEE SPECIALISTS, IT BECAME EVIDENT THAT THESE WERE



                           OPENING STATEMENT - JENKINS          32



    1    THE FIRST SIGNS OF STROKES IN RAY'S BRAIN IN 1994, AND HE'LL

    2    TELL YOU THAT THAT WAS THE BEGINNING.   AND OF COURSE THEY WERE
    3    MINOR STROKES, BUT SLURRED SPEECH, ALL OF THE SIGNS OF STROKE,

    4    AND DR. DUHON WILL TELL YOU IN HIS OPINION THAT'S WHAT THESE
    5    SYMPTOMS IN '94 WERE INDICATING.
    6              OKAY, LET'S GO TO THE NEXT.

    7              IN FEBRUARY OF '95, RAY HAD HIS SECOND BYPASS
    8    SURGERY, HEART BYPASS SURGERY, THE SECOND TIME AROUND.    AND AS

    9    YOU CAN IMAGINE, THAT SECOND TIME AROUND AFFECTED HIS HEALTH,

    10   AND HIS LEGS GAVE WAY.
    11             OKAY, LET'S GO TO THE NEXT ONE.

    12             NOW WE COME TO '96 IN DR. DUHON'S RECORDS.   THESE

    13   RECORDS -- LET ME SEE THE MONTH HERE.   I THINK IT'S MAY OF

    14   '96.   YEAH, MAY OF '96.
    15             THEN YOU CAN ENLARGE IT.

    16             AND YOU'LL HEAR FAMILY MEMBERS TESTIFY THAT RAY HAD

    17   TROUBLE EVEN WALKING AND GETTING AROUND.    YOU CAN SEE THAT

    18   PROBLEMS WITH FEET, CAN'T PICK THEM UP, TENDENCY TO DRAG HIS
    19   FEET, NUMBNESS.

    20             RAY ALSO SUFFERED FROM DIABETES, AND HE HAD WHAT WE
    21   HAVE HERE -- THIS MEANS DIABETES, DIABETES MELLITUS OR
    22   MELLITUS, HOWEVER YOU PRONOUNCE IT, WITH PERIPHERAL

    23   NEUROPATHY.   AND PERIPHERAL NEUROPATHY MEANS THAT THE NERVES
    24   IN HIS FEET HAVE BEEN DAMAGED BY THE DIABETES AND HE WAS
    25   HAVING PAIN, AND HE WAS HAVING DIFFICULTY WALKING IN EARLY



                           OPENING STATEMENT - JENKINS          33
                                Page 29
                          Transcript.8.25.04



    1    '96.

    2               OKAY, LET'S GO TO THE NEXT ONE.
    3               BY THE TIME WE GET TO OCTOBER OF '96, THEN WE SEE

    4    THAT -- I CAN'T READ IT THAT CLOSE.    VERY AWKWARD AND
    5    FUMBLING, STUMBLES A LOT, PERIPHERAL NEUROPATHY DUE TO
    6    DIABETES, DIABETIC, CEREBELLAR CBA.    THAT MEANS STROKE.

    7    DR. DUHON WILL TELL YOU THAT.    NEEDS DISABLED LICENSE TAG AND
    8    A WALKER, ONE OF THE WALKERS THAT YOU WALK AROUND WITH.        SO,

    9    ALREADY WE SEE THE DECLINE OF RAY.

    10              NOW, DR. DUHON WILL TELL YOU THAT HE COULDN'T HAVE
    11   BEEN DOING A CREMATION BUSINESS AT THIS TIME OR EVEN BEFORE.

    12   HE EVEN DOUBTS THAT HE'D BEEN ABLE TO DO IT I THINK ANY TIME

    13   IN 1996.   SO, WHEN YOU HEAR THAT THERE IS AN ABSOLUTE CUTOFF

    14   IN JANUARY OF 1997, THESE RECORDS WILL TELL YOU DIFFERENTLY.
    15   THAT'S NOT THE WAY IT HAPPENED.   RAY WAS NOT ABLE TO OPERATE

    16   THAT CREMATORY LONG BEFORE 1997, PERHAPS AS LONG AS A YEAR OR

    17   YEAR AND A HALF BEFORE THEN.

    18              HERE WE HAVE ANOTHER ENTRY IN NOVEMBER OF '96.
    19   AGAIN, I CAN'T READ IT THAT CLOSE.    PROBLEMS WALKING, DROPS

    20   FEET, CAN'T PICK UP FEET HIGH ENOUGH.    AND YOU'LL HEAR OTHER

    21   EVIDENCE OF THE DETERIORATION OF RAY, AND PARTICULARLY IN '96,
    22   BUT WE SAW IT AS FAR BACK AS '94.     AND HE WAS GETTING AROUND

    23   ONLY ON A WALKER AND SOMETIMES WITH A CANE DURING 1996.
    24              AND IT ALSO -- BECAUSE OF THE STROKES, AND THE
    25   STROKES IN HIS BRAIN, HE BEGAN TO HAVE MENTAL DETERIORATION,



                          OPENING STATEMENT - JENKINS              34




    1    DEMENTIA, PARKINSON'S TYPE DISEASE.    YOU WILL HEAR THAT THAT

                                Page 30
                           Transcript.8.25.04
    2    WAS EVIDENT.   AND SO THE LAST YEARS OF RAY'S LIFE WERE:     AS
    3    THE DOCTOR SAID, HE MIGHT HAVE A GOOD DAY WHERE HE WOULD BE
    4    CLEAR ABOUT WHAT'S GOING ON, BUT HE HAD A LOT OF BAD DAYS

    5    WHERE HE WOULD HAVE NO IDEA WHAT'S REALLY GOING ON.    SO, HE
    6    WAS OUT OF THE BUSINESS BEFORE JANUARY 1, '97, UNLIKE THAT

    7    REPRESENTED TO YOU BY MISS BARNETT EARLIER.
    8              NOW, I WANT TO TALK ABOUT -- LET'S -- THANK YOU.
    9              I WANT TO TALK JUST A MOMENT ABOUT THE OPERATION OF

    10   THE CREMATORY.    YOU WILL SEE PLENTY OF PICTURES, MORE THAN YOU
    11   MAY EVER WANT TO SEE, OF THIS RETORT OR CREMATION CHAMBER, THE

    12   ONE THAT WAS AT TRI-STATE.   YOU'LL SEE SOME PICTURES OF

    13   CREMATORIES AT OTHER LOCATIONS.    ONE THING YOU WON'T SEE IS
    14   THE PICTURE OF THE INSIDE OF THAT CREMATORY.    WE DO HAVE ONE

    15   PICTURE OF THE OUTSIDE, BUT YOU WON'T SEE THE PICTURE OF THE

    16   INSIDE OF THAT CREMATORY AT THE TIME RAY OPERATED THE

    17   CREMATORY.   WHAT YOU WILL SEE ARE PICTURES THAT WERE TAKEN IN
    18   2002.   THIS WHOLE MATTER ERUPTED FEBRUARY THE 15TH OF 2002,

    19   AND YOU WILL SEE PICTURES OF THAT CREMATORY FULLY SIX OR MORE

    20   YEARS AFTER RAY WAS INVOLVED IN HIS OPERATION.    UNFORTUNATELY,

    21   WE DON'T HAVE PICTURES OF THE INSIDE.
    22             ONE OF THE INTERESTING THINGS WE LEARN THOUGH:     THIS

    23   TYPE OF CREMATION CHAMBER IS -- AND, STRANGELY ENOUGH, IT HAS

    24   A CEMENT FLOOR.   IT HAS FIRE BRICK -- YOU'LL HEAR ABOUT ALL OF
    25   THIS -- FIRE BRICK AROUND IT.     IT'S A LONG CHAMBER, AND YOU



                           OPENING STATEMENT - JENKINS           35




    1    HAVE TO PUSH THE BODY IN ON A -- WITH A SPECIAL KIND OF
    2    CARDBOARD CASKET THAT'S PUSHED IN.    I HOPE YOU HAVE A GOOD

    3    STOMACH TO HEAR SOME OF THE THINGS AND THE WAY IT'S DONE.      NOT
    4    MANY PEOPLE EVEN WANT TO WITNESS ONE, BUT WE HAVE TO TALK

                                 Page 31
                          Transcript.8.25.04
    5    ABOUT IT A LITTLE BIT.
    6              SO, YOU'LL SEE A SAMPLE, FOR EXAMPLE, OF THE FIRE
    7    BRICK, BUT IT HAS A CASTABLE CEMENT FLOOR, AND THAT FLOOR IS

    8    SUPPOSED TO BE REPLACED PERIODICALLY EVERY FEW YEARS.     SO,
    9    IT'S ACTUALLY POURED INTO THE BOTTOM, AND YOU HAVE TO HAVE

    10   SOMEONE DO IT FOR YOU.    YOU POUR IT INTO THE BOTTOM, AND IT
    11   CREATES THIS KIND OF CONCRETE FLOOR.    THIS CEMENT IS
    12   SILICON-BASED AND IT'S ON THAT FLOOR, AND IT TENDS TO CRACK.

    13   YOU'LL SEE EVIDENCE OF THAT, PLENTY OF EVIDENCE OF HOW IT CAN
    14   CRACK.   BUT IT HAS -- BECAUSE OF THE EXCESSIVE HEAT, 1,600 TO

    15   1,800 DEGREES WITH A FIERY JET OF GASEOUS -- GAS FIRE COMING

    16   DOWN, YOU HAVE TO HAVE THAT CASTABLE CEMENT FLOOR.
    17             WHEN THE CREMATION IS OVER, THEN THE REMAINS HAVE TO

    18   BE REMOVED, AND THEY ARE REMOVED -- AND YOU'LL SEE ONE OF

    19   THESE RAKES THAT'S USED.    SOME PEOPLE USE A BRUSH SOMETIMES.

    20   SOME USE A RAKE, AND IT'S JUST LIKE A SOLID PIECE OF METAL.
    21   AND YOU REACH IN THE BACK, AND YOU PULL THE CREMATION REMAINS

    22   OUT WITH THIS RAKE.   AND OF COURSE AS YOU'RE RAKING IT ACROSS,

    23   YOU ARE RAKING UP SOME CONCRETE, SOME CEMENT, SOME SILICON.

    24   SOMETIMES THERE ARE THINGS THAT ARE LEFT IN THERE FROM A PRIOR
    25   CREMATION BECAUSE OF CRACKS OR THINGS IN THE FLOOR, AND THOSE



                          OPENING STATEMENT - JENKINS             36




    1    THINGS COME OUT AS A PART OF THE CREMATION PROCESS.      NOW, WE
    2    KNOW THAT THERE IS A CONCERN ABOUT THAT BECAUSE IN SOME OF THE

    3    FUNERAL HOMES THAT CONTRACTED WITH RAY TO CREMATE THE BODIES,
    4    THEY HAD A CONTRACT THAT THEY USED FOR PEOPLE TO SIGN.
    5              CAN WE HAVE THAT, PUT THAT?

    6              THIS INCIDENTALLY IS A CONTRACT WITH BUCKNER-RUSH
    7    FUNERAL HOME, WHICH IS IN TENNESSEE.

                                  Page 32
                          Transcript.8.25.04
    8              WHERE IN TENNESSEE? WHERE'S BUCKNER-RUSH?
    9              MR. JAMES:   BRADLEY COUNTY, CLEVELAND.
    10             MR. JENKINS:    BRADLEY COUNTY.   CLEVELAND, TENNESSEE.

    11   I DIDN'T MEAN TO SCARE YOU.
    12             MR. JAMES:   ANY TIME.

    13             MR. JENKINS:    IF YOU CAN ENLARGE THIS PART RIGHT
    14   HERE.
    15             WHAT YOU'LL SEE, AND THIS WAS A CONTRACT TO BE

    16   FILLED OUT BY FAMILY MEMBERS WHEN THEY CONTRACTED WITH THE
    17   FUNERAL HOME.   THE FUNERAL HOME THEN WOULD EITHER DELIVER THE

    18   BODY TO TRI-STATE OR SOMEONE FROM TRI-STATE WOULD GO GET THE

    19   BODY, AND IT SAYS -- CAN YOU READ THAT?     CAN YOU SEE THE WORDS
    20   THERE?   IS THAT LARGE ENOUGH?

    21             CAN WE TAKE THAT, THIS, ENLARGE THIS PARAGRAPH RIGHT

    22   HERE?

    23             ALL RIGHT.   BETTER?
    24             OKAY.   DUE TO THE NATURE OF THE CREMATION PROCESS,

    25   ANY PERSONAL POSSESSIONS OR VALUABLE MATERIALS SUCH AS DENTAL



                           OPENING STATEMENT - JENKINS           37




    1    GOLD OR JEWELRY, AS WELL AS BODY PROSTHESIS OR DENTAL
    2    BRIDGEWORK, THAT ARE LEFT WITH THE DECEDENT AND NOT REMOVED

    3    FROM THE CASKET OR CONTAINER WILL BE DESTROYED OR OTHERWISE
    4    NOT BE -- I THINK IT SAID AVAILABLE -- RECOVERABLE, AS THE
    5    CASKET OR CONTAINER WILL USUALLY NOT BE OPENED BY THE

    6    CREMATORY.
    7              SO, USUALLY THESE CASKETS WERE DELIVERED, AND
    8    THEY'RE KINDS THAT ARE CARDBOARD AND WILL BE DESTROYED IN THE

    9    CREMATION PROCESS.   THEY'RE JUST DELIVERED.    IDENTIFICATION IS
    10   PART OF IT.   THE CREMATION OCCURS, AND THEN THE CREMATORY HAS

                                  Page 33
                          Transcript.8.25.04
    11   USUALLY NO REASON TO EVEN LOOK AT IT, LOOK AT THE BODY, OR
    12   MAKE ANY DETERMINATION ABOUT WHO IT IS.
    13              LET'S DO THE SAME WITH THIS PARAGRAPH, THIS NEXT

    14   PARAGRAPH, PLEASE.
    15              FOLLOWING AN APPROPRIATE COOLING PERIOD, THE

    16   CREMATED REMAINS ARE SWEPT OR RAKED FROM THE CREMATION
    17   CHAMBER.   THE CREMATORY MAKES ALL REASONABLE EFFORTS AND USES
    18   ITS BEST EFFORTS TO REMOVE ALL OF THE CREMATED REMAINS FROM

    19   THE CREMATION CHAMBER, BUT IT IS IMPOSSIBLE TO REMOVE ALL OF
    20   THEM, AS SOME DUST AND OTHER RESIDUE FROM THE PROCESS ARE

    21   ALWAYS LEFT BEHIND.   IN ADDITION, WHILE EVERY EFFORT WILL BE

    22   MADE TO AVOID COMMINGLING, INADVERTENT OR INCIDENTAL
    23   COMMINGLING OF MINUTE PARTICLES OF CREMATED REMAINS FROM THE

    24   RESIDUE OF PREVIOUS CREMATIONS IS A POSSIBILITY.

    25              SO, IT WAS RECOGNIZED -- AND THAT'S THE REASON THIS



                          OPENING STATEMENT - JENKINS            38




    1    LANGUAGE WAS IN THE CONTRACT.    IT WAS RECOGNIZED THAT THERE
    2    MIGHT BE SOME BECAUSE OF THE NATURE OF THE CREMATORY AND THE

    3    REMOVAL OF THE REMAINS, AND SO THAT'S NOT SOMETHING THAT'S
    4    UNUSUAL.
    5               NOW, THE DISCOVERIES -- I'M THROUGH WITH THAT.

    6               THE DISCOVERIES OF THE BODIES OCCURRED ON FEBRUARY
    7    THE 15TH, 2002, AGAIN, FULLY SIX YEARS AFTER RAY HAD OPERATED
    8    THE CREMATORY.   SOME OF YOU SAW, I'M SURE, SOME OF THE

    9    PUBLICIZED NEWS REPORTS, TV REPORTS.   DR. KRIS SPERRY, WHO IS
    10   SCHEDULED TO COME TESTIFY AS A MEDICAL EXAMINER FOR THE

    11   GEORGIA BUREAU OF INVESTIGATION, HE WAS GENERALLY THE
    12   SPOKESMAN.   WHENEVER THE CAMERAS WERE ROLLING AT THE TRI-STATE

    13   CREMATORY AS THE RECOVERY WAS ONGOING, HE WAS THE SPOKESMAN

                                Page 34
                          Transcript.8.25.04
    14   WHO TALKED TO THE TV. I'M SURE MANY OF YOU, IF YOU REMEMBER
    15   BACK TO THAT TIME, WILL RECOGNIZE HIM.
    16               NOW, NO QUESTION THIS WAS A MEDIA FRENZY THAT WAS

    17   GOING ON.    IT WAS BEING COVERED NATIONALLY, IT WAS BEING
    18   COVERED BY EVERY CHANNEL, EVERY NEWSPAPER JUST ABOUT, AND

    19   DR. SPERRY I THINK WAS BEFORE THE CAMERAS SEVERAL TIMES A DAY
    20   DURING THE FIRST PART OF THE RECOVERY.
    21               NOW, WHAT HAPPENED IS THAT WITHIN TWO OR THREE DAYS

    22   -- THIS IS IMPORTANT -- WITHIN TWO OR THREE DAYS OF THE
    23   DISCOVERY, DR. SPERRY SAID THESE BODIES MAY GO BACK 20 YEARS,

    24   AND THAT WAS PUT OVER THE AIRWAYS.   THESE BODIES MAY GO BACK

    25   20 YEARS.    NOW, ONCE THAT GOT OUT IN THE PUBLIC AND EVERYBODY



                           OPENING STATEMENT - JENKINS           39




    1    WHO HAD EVER HAD A BODY SENT TO TRI-STATE, IT SENT SHIVERS
    2    THROUGH THEM.   IT MAY GO BACK 20 YEARS.

    3                NOW, AS THE RECOVERY EFFORT PROGRESSED AND AS THEY
    4    WERE ABLE TO NARROW DOWN WHAT THEY WERE FINDING THERE -- AND

    5    AS MISS BARNETT TOLD YOU, TWO-THIRDS OF THE BODIES HAVE BEEN

    6    IDENTIFIED, AND NOT ONE OF THOSE BODIES PREDATED '97.    AND
    7    YOU'LL HEAR EVIDENCE THAT -- OPINION, PROBABLY MORE THAN ONE
    8    OPINION, THAT OF THE UNIDENTIFIED BODIES, IT IS LIKELY THAT

    9    NONE OF THEM PREDATED '97.   SO, INSTEAD OF THE FRENZY CREATED
    10   BY DR. SPERRY SAYING THEY GO BACK 20 YEARS, THE EVIDENCE IS

    11   GOING TO SHOW YOU IT ONLY GOES BACK TO '97.     BUT OF COURSE THE
    12   HORSE WAS OUT OF THE BARN, AND EVERYBODY WHO HAD EVER SENT A

    13   BODY THOUGHT, "WELL, I CAN'T -- I CAN'T RELY ON THIS."      RAY
    14   GETS DRAGGED IN BECAUSE RAY WAS OPERATING THE CREMATORY UNTIL
    15   95-96.

    16               THE MEDIA AND EVERYBODY WANTED -- THEY WANTED

                                 Page 35
                            Transcript.8.25.04
    17   PEOPLE'S HEADS.    BRENT WAS ARRESTED.   IN FACT, THE WHOLE
    18   FAMILY WAS ARRESTED.    ON AUGUST -- ON MARCH THE 8TH OF 2002,
    19   EVERYBODY IN THE FAMILY WAS ARRESTED.    CLARA HANDCUFFED, TAKEN

    20   IN.   RAY WAS ARRESTED, RAY IN A WHEELCHAIR.     THEY HAD TO HOLD
    21   HIM UP LIKE THIS BECAUSE HE -- AND TAKE HIS FINGERPRINTS, HOLD

    22   HIM UP FROM THE WHEELCHAIR.    HE WAS ARRESTED.    LASHEA WAS
    23   ARRESTED.    AND IT WAS A REACTION, GROSS OVERREACTION, BROUGHT
    24   ON BY A MEDIA FRENZY AND A FRENZY AMONG OTHERS INVOLVED, AND

    25   IT WAS UNFORTUNATE THAT THIS HAPPENED.



                            OPENING STATEMENT - JENKINS           40




    1                NOW AS TIME GOES ON AND MORE INFORMED MINDS PROCEED,
    2    THINGS HAVE CHANGED.    AND WE HAVE ONE LAST STEP TO GO, AND

    3    THAT'S IN THIS TRIAL.    AND AS YOU CAN IMAGINE, AN INCIDENT
    4    LIKE THIS BROUGHT LAWYERS FROM ALL OVER THE COUNTRY INVOLVED.

    5    ONE OF THE LEAD COUNSEL IS FROM CALIFORNIA.      MISS BARNETT'S

    6    FROM NASHVILLE.    WE'VE GOT LAWYERS GALORE IN THIS CASE WHO ALL
    7    COME IN ON THIS CLASS ACTION, AND THEY SUE THE WHOLE FAMILY.

    8                NOW, WHAT YOU WILL HEAR ABOUT, TOO, IS THAT BECAUSE

    9    OF THIS INITIAL INFORMATION THAT THIS GOES BACK 20 YEARS, THAT
    10   GBI SET UP A CENTER IN WALKER COUNTY, AND PEOPLE WOULD BRING

    11   IN CREMAINS OR REMAINS, HUMAN REMAINS.    SOMETIMES THEY'RE
    12   CALLED CREMAINS.    THEY WOULD BRING THEM IN FOR TESTING.     AND

    13   SOMETIMES THEY APPEARED TO BE CEMENT; SOMETIMES THERE WERE
    14   THINGS IN THERE THAT DON'T NECESSARILY IDENTIFY WITH THE
    15   PERSON, AGAIN, GOING WAY BACK.    AND SOMETIMES THEY BROUGHT

    16   THEM IN, AND THEY SUSPECTED FRAUD.   I MEAN, IT'S AN
    17   OPPORTUNITY FOR PEOPLE TO ADULTERATE CREMAINS THEMSELVES AND
    18   BRING THEM IN.    SO, FOR A LOT OF REASONS THEY EITHER ACCEPTED

    19   SOME OF THEM OR REJECTED THEM.

                                 Page 36
                           Transcript.8.25.04
    20              MISS EDMISTON, I EXPECT YOU'LL HEAR FROM, CAME BY,
    21   WAS SO UPSET BY THE GBI AND BROUGHT REMAINS THAT SHE HAD AND
    22   SAID, "THESE THINGS DON'T -- HAVE THINGS THAT I DON'T

    23   UNDERSTAND BECAUSE THEY DON'T -- I DON'T ASSOCIATE THEM WITH
    24   MY MOTHER."   AND SO ON THAT STRENGTH, ON THAT BASIS, THEN ALL

    25   THESE SUITS OR ALL OF THESE -- THE DIFFERENT FAMILIES GOING



                             OPENING STATEMENT - JENKINS           41



    1    BACK ALMOST 20 YEARS ARE INVOLVED IN THIS CASE.

    2               NOW, THE GBI COMPLETED ITS INVESTIGATION IN MAY OR
    3    JUNE OF 2002; FROM FEBRUARY, WHEN THE BODIES WERE DISCOVERED,

    4    TO MAY OR JUNE.     THESE LAWSUITS WERE FILED.    I MEAN, THEY WERE

    5    FILED WITHIN DAYS AFTER THIS DISCOVERY.    BUT THEN AS THE
    6    INVESTIGATION BY THE GBI CONTINUED, IT BECAME CLEAR THAT ANY

    7    OF THE BODIES THAT WERE FOUND ON THE PROPERTY DIDN'T GO BACK
    8    BEFORE '97, BUT, AS I SAID, THE HORSE WAS OUT OF THE BARN

    9    ALREADY.   THE FRENZY HAD GONE FORTH.

    10              NOW, I'M HERE, AND I SEE ONE OF MY ROLES, OF COURSE,
    11   IS TO TRY TO DRAW THAT DISTINCTION FOR YOU.       YOU'LL NOT HEAR

    12   ME REFER TO THE MARSH FAMILY OR THE MARSH OPERATION OR THE

    13   MARSH THIS.   I WANT TO DRAW THE DISTINCTION BETWEEN RAY AND
    14   THE TIME THAT HE OPERATED THE CREMATORY, AND I ASK YOU TO DO

    15   THE SAME AS YOU CONSIDER THIS CASE AS WELL.
    16              NOW, WE'RE SOMEWHAT HANDICAPPED.      WE'RE HANDICAPPED
    17   FOR SEVERAL REASONS.    ONE IS THAT RAY IS DECEASED.    HE CAN'T

    18   DEFEND HIMSELF.     IN FACT, HE COULDN'T DEFEND HIMSELF FOR A
    19   NUMBER OF YEARS BECAUSE OF HIS DEMENTIA AND PARKINSON'S, BUT
    20   FOR SURE HE CAN'T COME IN AND TESTIFY AND DEFEND HIMSELF NOW.

    21   SO, YOU'LL NOT BE HEARING FROM RAY.

    22              BRENT.   HERE ARE THE INDICTMENTS AGAINST BRENT

                                  Page 37
                           Transcript.8.25.04
    23   MARSH.   750 SOMETHING INDICTMENTS THAT ARE PENDING IN THE
    24   CRIMINAL CASE.    YOU PROBABLY KNOW ABOUT THAT.   MANY OF YOU
    25   KNEW ABOUT THE CRIMINAL CASE.      THOUSANDS OF YEARS IN JAIL IF



                           OPENING STATEMENT - JENKINS            42



    1    CONVICTION ON ALL OF THESE.    BRENT OF COURSE CAN'T TESTIFY.

    2    HE'S GOING TO BE EXERCISING HIS CONSTITUTIONAL RIGHT TO PLEAD
    3    THE FIFTH, AND I EXPECT THEY'LL PROBABLY PUT HIM ON THE STAND
    4    JUST SO THEY CAN PARADE THROUGH HIS PLEADING THE FIFTH.       HIS

    5    ATTORNEY, KEN POSTON, IN THE CRIMINAL CASE WILL BE HERE DURING
    6    HIS TESTIMONY.   YOU'LL SEE HIM HERE, AND THAT'S WHY HE'S HERE,

    7    BECAUSE HE REPRESENTS HIM IN THE CRIMINAL CASE.     AND OF COURSE
    8    HIS ADVICE IS, "DON'T TESTIFY UNTIL WE GET THE CRIMINAL CASE

    9    OVER."   UNFORTUNATELY, IT'S NOT OVER.    SO, WE CAN HEAR NOT

    10   FROM RAY, AND WE CANNOT HEAR FROM BRENT.     SO, WE HAVE TO SORT
    11   PIECE THINGS TOGETHER WITHOUT THE BENEFIT OF THEIR STORY.

    12               ONE OF THE THINGS I'M REMINDED AS TO WHY THE WHOLE

    13   FAMILY WAS ARRESTED IN MARCH OF 2002, AND CLARA AND RAY AND

    14   LASHEA, THEY DIDN'T HAVE ANY EVIDENCE OF THEIR INVOLVEMENT IN
    15   ANY MATTERS.   THEY WERE ARRESTED FOR SIGNING A DEATH

    16   CERTIFICATE UNDER THE LINE WHERE IT SAYS FUNERAL DIRECTOR.
    17   THAT'S WHY THEY WERE ARRESTED.     AND YOU WILL HEAR CLARA

    18   TESTIFY THAT THEY WERE -- AND LASHEA THAT THEY WERE TOLD AT
    19   THE HEALTH CENTER THAT THAT'S WHAT THEY WERE SUPPOSED TO DO ON
    20   THESE, AND SO NOTHING HAS HAPPENED TO THAT BECAUSE THERE WAS

    21   NOTHING TO IT TO BEGIN WITH.      SO, THANKFULLY, NOTHING HAS

    22   HAPPENED.
    23               SO, MY GOAL HERE WILL BE TO MAKE SURE THAT THERE IS

    24   A SHARP DISTINCTION AS TO THE DIFFERENT TIMES THAT THINGS
    25   OCCURRED.   I KNOW IT'S GOING TO BE DIFFICULT.    THERE ARE SOME

                                 Page 38
                          Transcript.8.25.04


                          OPENING STATEMENT - JENKINS            43



    1    -- I EXPECT THERE WILL BE SOME VERY GHASTLY AND GHOULISH

    2    PICTURES THAT NONE OF US PARTICULARLY LIKE TO LOOK AT, AND I
    3    REGRET THAT'S THE CASE, BUT I ASK YOU TO KEEP IN MIND THE
    4    THINGS THAT I'VE TALKED ABOUT.     AND MY GOAL AND OBJECTIVE IS

    5    THAT THE EVIDENCE THAT YOU HEAR IN THIS CASE WILL SUPPORT
    6    EXACTLY WHAT I HAVE TOLD YOU, AND I'M SURE THAT YOU'LL BE

    7    LOOKING AT IT WITH JUST THAT IN MIND.    HAS THAT EVIDENCE
    8    SUPPORTED WHAT HE TOLD US ABOUT THIS CASE?

    9              THEY HAVE THE BURDEN.     THEY GET TO GO FIRST.   WE ASK

    10   YOU TO KEEP AN OPEN MIND TO HEAR ALL THE EVIDENCE, AND WE'RE
    11   SURE THAT YOU'LL MAKE THE RIGHT DECISION.    THANK YOU VERY MUCH

    12   FOR YOUR ATTENTION.

    13             THE COURT:   THANK YOU, MR. JENKINS.   DO YOU MIND

    14   MOVING YOUR BOARD?
    15             MR. JENKINS:    I DO NOT.

    16             THE COURT:   THANK YOU.

    17             MR. JENKINS:    YES, SIR.

    18             THE COURT:   LADIES AND GENTLEMEN OF THE JURY, IT'S
    19   PERMISSIBLE FOR YOU TO MAKE NOTES IF YOU WANT TO DO SO DURING
    20   THE COURSE OF THIS TRIAL.    IF YOU WANT TO TAKE NOTES AS PEOPLE

    21   TESTIFY AND AS THINGS MOVE ALONG, YOU -- WELL, IF YOU WANT TO

    22   TAKE NOTES, YOU MAY.   IF YOU DON'T WANT TO TAKE NOTES, YOU
    23   DON'T HAVE TO.   IT'S JUST WHETHER OR NOT YOU WANT TO TAKE

    24   NOTES.   IF YOU DECIDE THAT YOU WANT TO TAKE NOTES, LET ME
    25   CAUTION YOU THAT YOU SHOULD NOT GET SO BUSY TAKING NOTES THAT



                                                                 44



                                  Page 39
                           Transcript.8.25.04
    1    YOU FAIL TO OBSERVE THE WITNESSES, THEIR DEMEANOR AND THEIR

    2    ATTITUDE AS THEY TESTIFY.    THAT'S VERY IMPORTANT THAT YOU DO
    3    OBSERVE THE WITNESSES AS THEY TESTIFY.
    4              ALSO, IF YOU TAKE NOTES, KEEP THEM PRIVATE; THAT IS,

    5    LEAVE THEM IN THE JURY ROOM WHEN YOU'RE IN RECESS OR WHEN
    6    YOU'RE GONE FOR THE EVENING.      AND THE NOTES ARE FOR YOU TO USE
    7    TO REFRESH YOUR RECOLLECTION, BUT IF YOU USE THE NOTES, DON'T

    8    LET THEM OVERPOWER THE BALANCE OF THE TESTIMONY THAT YOU DID

    9    NOT -- AND EVIDENCE THAT YOU DID NOT PARTICULARLY NOTE.       YOU
    10   HAVE TO CONSIDER THE CASE IN ITS ENTIRE CONTEXT.     SO, WITH
    11   THAT INSTRUCTION, YOU MAY DO AS YOU LIKE WITH REFERENCE TO

    12   NOTES AS THESE PEOPLE TESTIFY.

    13             ARE YOU READY FOR A WITNESS, MR. SMALLEY, AT THIS
    14   MOMENT?

    15             MR. SMALLEY:    YES, YOUR HONOR.

    16             THE COURT:   ALL RIGHT.

    17             MS. BARNETT:    WE CALL MR. PAT BREWER, YOUR HONOR.

    18             THE COURT:   PAT BREWER?
    19             MS. BARNETT:    YES, SIR.

    20             THE CLERK:   SIR, IF YOU WILL, COME AROUND TO THE

    21   WITNESS STAND, PLEASE.    SIR, IF YOU'LL RAISE YOUR RIGHT HAND.
    22   YOU SOLEMNLY SWEAR THE EVIDENCE WHICH YOU'RE ABOUT TO GIVE IN
    23   THE CAUSE NOW BEFORE THIS COURT WILL BE THE TRUTH, THE WHOLE

    24   TRUTH, AND NOTHING BUT THE TRUTH, SO HELP YOU GOD?

    25             THE WITNESS:    I DO.



                      CHARLES BREWER - DIRECT BY BARNETT          45



    1              THE CLERK:   BE SEATED, PLEASE, AND STATE YOUR NAME
    2    FOR THE RECORD.

    3              THE WITNESS:     CHARLES P. BREWER.
                                  Page 40
                           Transcript.8.25.04
    4                                *     *   *

    5         CHARLES BREWER, THE PLAINTIFFS' WITNESS, WAS DULY SWORN
    6                  DIRECT EXAMINATION OF CHARLES BREWER
    7    BY MS. BARNETT:

    8    Q.    THANK YOU, MR. BREWER.
    9    A.    GOOD MORNING.
    10   Q.    I UNDERSTAND THAT YOU ARE A MEMBER OF DMORT.       CAN YOU

    11   TELL THE JURY WHAT DMORT IS?

    12   A.    DMORT IS A FEDERALLY OPERATED TEAM CALLED DISASTER
    13   MORTUARY OPERATION RESPONSE TEAM.         WE OPERATE UNDER HOMELAND
    14   SECURITY AND FEMA.

    15   Q.    AND WHAT IS THE PRIMARY MISSION OF DMORT?

    16   A.    TO RECOVER AND IDENTIFY REMAINS FROM A DISASTER LARGER
    17   THAN THE LOCAL AREA CAN HANDLE.

    18   Q.    HOW DID YOU GET INVOLVED PERSONALLY IN DMORT?

    19   A.    1994, I WAS PART OF TRAINING IN A MASS FATALITY DISASTER

    20   TRAINING IN FLORIDA AND WAS ASKED TO JOIN THE DMORT TEAM, AND

    21   I MADE APPLICATION, APPLIED, AND WAS ACCEPTED IN 1994.
    22   Q.    CAN YOU TELL THE JURY A LITTLE BIT ABOUT THE KINDS OF

    23   CASES YOU'VE WORKED ON AS A MEMBER OF DMORT?

    24   A.    MY FIRST CASE WAS THE VALUJET PLANE CRASH IN MIAMI;
    25   SECONDLY, HURRICANE FLOYD IN TARBORO, SOUTH CAROLINA; 9-11 IN



                        CHARLES BREWER - DIRECT BY BARNETT           46




    1    NEW YORK; NOBLE; AND JUST THIS LAST WEEK HURRICANE CHARLEY IN
    2    FLORIDA.
    3    Q.    WHAT'S YOUR TITLE WITH DMORT?

    4    A.    I'M A MORTUARY OFFICER.
    5    Q.    TELL THE JURY ABOUT YOUR EXPERIENCE IN THE MORTUARY
    6    SCIENCES.
                                 Page 41
                            Transcript.8.25.04
    7    A.   I'M A LICENSED FUNERAL DIRECTOR AND EMBALMER IN THE STATE

    8    OF FLORIDA, HAVE BEEN SINCE 1963.
    9    Q.   HAVE YOU EVER OWNED AND OPERATED A CREMATORY?
    10   A.   YES, I HAVE.

    11   Q.   WHEN DID YOU FIRST OPERATE A CREMATORY?
    12   A.   1988.
    13   Q.   TELL THE JURY A LITTLE BIT ABOUT HOW YOU CAME TO OPERATE

    14   A CREMATORY IN 1988.

    15   A.   WE'VE OWNED AND OPERATED FUNERAL HOMES SINCE 1965.      WE
    16   SAW THE NEED TO START OUR OWN CREMATORY IN 1988.
    17   UNFORTUNATELY, IT WAS NOT FEASIBLE FINANCIALLY AT THAT TIME,

    18   SO WE COMBINED WITH FIVE OTHER FUNERAL HOMES AND BUILT OUR OWN

    19   CREMATORY.   WE OPERATED THAT UNTIL 1994, WHERE THE CASELOAD
    20   BECAME ENOUGH THAT I COULD OWN AND OPERATE MY OWN FUNERAL

    21   HOME, WHICH -- I MEAN CREMATORY, WHICH I DID IN 1994.

    22   Q.   WHEN YOU FIRST OPENED UP A CREMATORY WITH SOME OTHER

    23   FUNERAL DIRECTORS IN 1988, DID YOU BECOME FAMILIAR WITH THE

    24   STANDARDS FOR OPERATING A CREMATORY?
    25   A.   ABSOLUTELY.



                       CHARLES BREWER - DIRECT BY BARNETT        47




    1    Q.   HOW DID YOU DO THAT?
    2    A.   BY TRAINING, BY TRAINING BY THE COMPANY THAT INSTALLED

    3    THE CREMATORY, WHICH WAS INDUSTRIAL EQUIPMENT COMPANY OUT OF
    4    ORLANDO, FLORIDA, AND CONTINUOUS TRAINING THROUGH SEMINARS AND

    5    CONTINUOUS TRAINING THROUGH THE YEARS.
    6    Q.   AND YOU SAID YOU ULTIMATELY INSTALLED A CREMATORY IN YOUR
    7    OWN FUNERAL HOME.    DO YOU STILL OPERATE THAT?

    8    A.   YES, I DO.
    9    Q.   FROM 1988 UP UNTIL 2002, HAVE YOU NOTICED WHETHER THERE
                               Page 42
                          Transcript.8.25.04
    10   WERE ANY CHANGES IN THE BASIC STANDARD OF CARE --

    11   A.   NO.
    12   Q.   -- IN THE OPERATION OF A CREMATORY?
    13   A.   NO.

    14   Q.   SO, IT'S BEEN THE SAME SINCE 1988?
    15   A.   BEEN THE SAME SINCE TIME IMMEMORIAL.
    16   Q.   DOES THE STANDARD OF CARE FOR OPERATION OF A CREMATORY,

    17   THE BASIC STANDARD, VARY FROM STATE TO STATE?

    18   A.   NO.
    19              MR. JAMES:   OBJECTION, YOUR HONOR.   I THINK THAT
    20   MISS BARNETT'S TRYING TO OFFER MR. BREWER AS AN EXPERT.        HE

    21   HAS NOT BEEN DISCLOSED AS SUCH.

    22              THE COURT:   I'LL HEAR FROM YOU.
    23              MS. BARNETT:    YOUR HONOR, WE DISCLOSED MR. BREWER TO

    24   THE DEFENDANTS ON, I BELIEVE, JUNE 26TH.      THE DEFENDANTS

    25   DISCLOSED A NUMBER OF EXPERTS TO US AS WE GOT CLOSER TO THIS



                       CHARLES BREWER - DIRECT BY BARNETT         48




    1    TRIAL, AND WE REACHED AN AGREEMENT THERE WOULD BE NO
    2    OBJECTIONS TO THE TIMELINESS OF DISCLOSURE OF EXPERT

    3    WITNESSES.
    4               THE COURT:   HE WAS DISCLOSED.

    5               MR. JAMES:   HE WAS DISCLOSED, YOUR HONOR.
    6               THE COURT:   YES, HE WAS.
    7               MR. JAMES:   I WAS REMINDED BY SMARTER ATTORNEYS

    8    HERE, YOUR HONOR.
    9               THE COURT:   THAT'S ALL RIGHT.
    10              MR. JAMES:   THAT'S FINE, YOUR HONOR.

    11              THE COURT:   GO RIGHT AHEAD.
    12              MS. BARNETT:     ALL RIGHT.
                                   Page 43
                            Transcript.8.25.04
    13   Q.   LET'S SEE.    I THINK I ASKED YOU WHETHER THE STANDARD OF

    14   CARE IN PERFORMING CREMATIONS VARIES FROM STATE TO STATE.
    15   A.   NO, IT DOES NOT.
    16   Q.   HOW DO YOU KNOW THAT?

    17   A.   I'M -- THERE IS NO REASON THE STANDARD OF CARE -- BECAUSE
    18   IF A FAMILY ENTRUSTS YOU WITH THEIR LOVED ONES FOR THE SAKE OF
    19   CREMATION, OR BURIAL FOR THAT MATTER, THEN THEY ENTRUST YOU TO

    20   DO THE PROPER METHOD OF EITHER BURIAL OR CREMATION, AND THAT

    21   STANDARD OF CARE IS THE SAME, REGARDLESS OF WHERE YOU ARE.
    22   Q.   DO YOU RECEIVE PUBLICATIONS IN THE BUSINESS OF CREMATORY
    23   OPERATIONS?

    24   A.   YES.

    25   Q.   ARE THOSE FLORIDA SPECIFIC PUBLICATIONS, OR ARE THEY



                         CHARLES BREWER - DIRECT BY BARNETT     49




    1    NATIONAL?

    2    A.   NATIONAL AND FLORIDA.
    3    Q.   DO YOU ATTEND SEMINARS AND MEETINGS ON THE OPERATION OF

    4    CREMATORIES?

    5    A.   YES, I DO.
    6    Q.   AND AGAIN AT THOSE SEMINARS AND MEETINGS, ARE YOU TAUGHT

    7    ABOUT FLORIDA'S SPECIFIC STANDARD OF CARE, OR IS IT NATIONAL?
    8    A.   THOSE ARE NATIONAL.
    9    Q.   HAVE YOU HAD THE OPPORTUNITY TO ARRANGE FOR CREMATIONS IN

    10   OTHER STATES?
    11   A.   YES, I HAVE.
    12   Q.   HAVE YOU HAD AN OPPORTUNITY TO ARRANGE FOR CREMATIONS IN

    13   GEORGIA?

    14   A.   IN -- I'M SORRY.
    15   Q.   IN GEORGIA.
                                 Page 44
                             Transcript.8.25.04
    16   A.     YES.

    17   Q.     AND BASED ON YOUR FAMILIARITY WITH THE CREMATIONS YOU'VE
    18   ARRANGED IN OTHER STATES, IS IT YOUR OPINION THAT THE STANDARD
    19   OF CARE IS THE SAME IN GEORGIA AS IN OTHER STATES IN THE

    20   UNION?
    21   A.     YES.
    22   Q.     DOES THE STANDARD OF CARE CHANGE WHETHER YOU ARE IN AN

    23   URBAN FACILITY VERSUS A RURAL FACILITY?

    24   A.     NO.    THE STANDARD OF CARE SHOULD NEVER CHANGE.
    25   Q.     AND DOES IT CHANGE DEPENDING ON HOW MANY CREMATIONS YOU



                          CHARLES BREWER - DIRECT BY BARNETT       50




    1    PERFORM?

    2    A.     NO.
    3    Q.     I'D LIKE TO HAVE YOU SORT OF WALK THE JURY STEP-BY-STEP

    4    THROUGH HOW A CREMATION IS PERFORMED.     SO, IF YOU'LL START AT

    5    THE VERY BEGINNING WHEN A BODY ARRIVES AND JUST TELL THEM WHAT
    6    HAPPENS, WHAT YOU DO WITH THE BODY, WHAT PAPERWORK YOU FILL

    7    OUT.
    8    A.     WHEN A BODY ARRIVES IN THE FUNERAL HOME, IT'S LOGGED IN
    9    AT THE DOOR BEFORE IT COMES IN.     ONCE IT ARRIVES INSIDE THE

    10   HOLDING FACILITY, IT IS TAGGED WITH AN ANKLE TAG, WHICH GIVES
    11   THE NAME AND THE DATE OF DEATH.     IT IS LOGGED IN AGAIN IN A
    12   LOGBOOK WITH THE INFORMATION PERTAINING TO THE NAME OF THE

    13   DECEASED, THE DOCTOR'S NAME, THE NEXT OF KIN, ANY VALUABLES

    14   THAT MAY BE ATTACHED TO THE REMAINS, AND THEN AT THAT POINT
    15   YOU DETERMINE WHETHER IT'S GOING TO BE AN EMBALMING OR WHETHER

    16   IT'S GOING TO BE A CREMATION.     IF IT'S A CREMATION, IT IS --

    17   IT IS PLACED IN A CARDBOARD CONTAINER, PLACED IN REFRIGERATION
    18   UNTIL SUCH TIME THAT THE FAMILY HAVE SIGNED ALL THE PAPERWORK,
                               Page 45
                           Transcript.8.25.04
    19   THE NECESSARY PAPERWORK'S BEEN COMPLETED TO COMPLETE THE

    20   CREMATION.
    21   Q.   LET ME STOP YOU THERE.   WHY IS THE BODY PLACED IN A
    22   CARDBOARD CONTAINER?

    23   A.   IT'S FOR TWO REASONS:    FIRST OF ALL, RESPECT TO THE
    24   REMAINS, SECONDLY AS TO EASE OF HANDLING FOR MY STAFF AND
    25   EMPLOYEES.



                       CHARLES BREWER - DIRECT BY BARNETT       51




    1    Q.   AND WHY ARE THE REMAINS PUT IN A COOLER?

    2    A.   A BODY DETERIORATES QUITE RAPIDLY AFTER DEATH, AND IT
    3    MUST EITHER BE EMBALMED OR PLACED IN SOME TYPE OF

    4    REFRIGERATION.

    5    Q.   AGAIN, DOES THAT RELATE ALSO TO RESPECT?
    6    A.   THAT'S OUT OF RESPECT FOR THE REMAINS AND ALSO FOR

    7    PROTECTION OF MY STAFF.
    8    Q.   PROTECTION OF YOUR STAFF FROM WHAT?

    9    A.   FROM ANY DISEASE BORNE THAT MAY BE AFFILIATED WITH A

    10   BODY.   NOT ALL DISEASE DIES AT THE POINT OF DEATH.
    11   Q.   ALL RIGHT.   I THINK YOU WERE TALKING ABOUT THE PAPERWORK

    12   THAT GETS FILLED OUT.
    13   A.   OKAY.   ONCE --
    14   Q.   SO, LET ME LET YOU GET --

    15   A.   ONCE THE PROPER PAPERWORK HAS BEEN SIGNED, ONCE THE
    16   INFORMATION'S BEEN GIVEN BACK TO OUR CREMATORY, THE BODY'S
    17   REMOVED FROM THE CREMATORY, PLACED ON A HYDRAULIC TABLE TO BE

    18   PLACED IN THE CREMATORY.   AT THAT TIME, THE PAPERWORK IS
    19   COMPARED AGAIN WITH THE BODY TO MAKE SURE THAT THE TAGS ON THE
    20   BODY ARE PROPER AND THAT THEY ARE THE SAME AS IT WOULD BE WITH

    21   THE PAPERWORK.    THEN THE BODY'S EXAMINED TO MAKE SURE THERE
                                 Page 46
                             Transcript.8.25.04
    22   ARE NO SEALED DEVICES SUCH AS PACEMAKERS, WHICH WOULD EXPLODE

    23   IN A CREMATORY.     IF THEY DO FIND A PACEMAKER, IT HAS TO BE
    24   REMOVED BEFORE CREMATION.       WHEN THE OVEN REACHES 1,650
    25   DEGREES, THEY'RE PLACED IN THE CREMATORY FEET FIRST, AND THE



                          CHARLES BREWER - DIRECT BY BARNETT         52



    1    CREMATION PROCESS BEGINS.

    2    Q.     NOW, LET ME TAKE YOU BACK FOR A MINUTE.    DO YOU USE ANY
    3    KIND OF METAL IDENTIFICATION WITH REMAINS?

    4    A.     THERE IS A METAL TAG WHICH HAS THE NAME OF THE CREMATORY

    5    AND A NUMBER.     THAT NUMBER SHOULD CORRESPOND WITH ALL
    6    PAPERWORK INVOLVED WITH THAT BODY.

    7    Q.     AND I TAKE IT YOU USE THOSE AT YOUR CREMATORY FACILITY
    8    NOW.

    9    A.     I'M SORRY?

    10   Q.     I TAKE IT YOU USE THOSE METAL TAGS AT YOUR CREMATORY
    11   FACILITY.

    12   A.     YES.

    13   Q.     HOW LONG HAVE YOU USED THOSE?

    14   A.     SINCE WE STARTED.
    15   Q.     AND IS IT YOUR OPINION THAT USE OF A METAL TAG

    16   IDENTIFICATION MEASURE IS REQUIRED BY THE STANDARD OF CARE?

    17   A.     IT IS REQUIRED BY MY OPERATION FOR THE SAFETY OF ASSURING
    18   THAT WE'RE CREMATING WHO WE'RE SUPPOSED TO BE CREMATING.         IT'S
    19   JUST ANOTHER SAFETY FACTOR.

    20                 THE COURT:   WHAT DO YOU PUT ON THOSE TAGS?
    21                 THE WITNESS:   IT IS THE NAME -- THE TAGS ARE
    22   EMBOSSED WITH THE NAME OF THE CREMATORY AND A NUMBERING,

    23   SEQUENTIAL NUMBERING, SYSTEM, AND THIS SEQUENTIAL NUMBERING
    24   SYSTEM IS THE SAME NUMBER THAT WOULD BE ON ALL PAPERWORK
                               Page 47
                            Transcript.8.25.04
    25   INVOLVING THIS BODY.



                        CHARLES BREWER - DIRECT BY BARNETT        53



    1               THE COURT:   COMPATIBLE WITH YOUR RECORDS.

    2               THE WITNESS:   EXACTLY.
    3               MS. BARNETT:   AND I HAVE, YOUR HONOR -- IT'S EXHIBIT

    4    108.   I HAVE A COPY OF AN EXEMPLAR I'D LIKE TO HAND UP TO
    5    MR. BREWER.
    6               THE COURT:   ALL RIGHT.

    7               MS. BARNETT:   IF I MAY APPROACH.
    8               THE COURT:   YES, YOU MAY.

    9               MS. BARNETT:   I DON'T KNOW WHERE TO HAND THE COURT'S

    10   COPIES OF THIS, BUT --
    11              THE COURT:   WELL --

    12              MS. BARNETT:   SORRY.   PARDON ME.

    13              THE COURT:   THAT'S ALL RIGHT.

    14   Q.     THERE IS SOMETHING -- WHY DON'T YOU TELL THE JURY.     I
    15   DON'T WANT TO TESTIFY.    YOU TELL THE JURY WHAT THAT IS.

    16   A.     THIS IS A STAINLESS STEEL TAG THAT HAS THE NAME OF THE

    17   CREMATORY, THIS PARTICULAR ONE IN NASHVILLE, TENNESSEE, AND A

    18   NUMBERING SEQUENCE UNDER IT.      THIS IS EMBOSSED IN IT AND WILL
    19   NOT -- THIS TAG WILL STAND THE 1,600 DEGREE TEMPERATURE OF THE

    20   -- OF THE RETORT OVEN.    AND THIS NUMBER HERE AGAIN WOULD BE
    21   SEQUENTIAL WITH ALL OTHER PAPERWORK INVOLVED WITH THIS
    22   PARTICULAR BODY.

    23   Q.     AND DURING WHAT PARTS OF THE PROCESS DOES THE METAL TAG
    24   STAY WITH THE LOVED ONE?
    25   A.     IT STAYS THROUGHOUT ONCE THE BODY HAS BEEN CREMATED, AND



                        CHARLES BREWER - DIRECT BY BARNETT        54
                                Page 48
                           Transcript.8.25.04



    1    THIS TAG IS PLACED WITHIN THE CREMAINS SO THAT IT WILL STAY

    2    WITH IT FROM NOW ON SO THAT THERE'S ANY ASSURANCE THAT --
    3    OTHER THAN CERTIFICATION THAT THIS IS THE CREMAINS OF THE BODY

    4    IT'S SUPPOSED TO BE.
    5    Q.   AND YOU MENTIONED PREHEATING THE CREMATION CHAMBER.     WHY
    6    DO YOU DO THAT?

    7    A.   BECAUSE IT'S REQUIRED TO OPERATE A CREMATORY -- WELL, TO
    8    BEST EXPLAIN, A CREMATORY IS KIND OF LIKE AN OVEN THAT YOU

    9    MIGHT HAVE IN YOUR HOME.   THE ONLY DIFFERENCE IS THAT YOUR

    10   OVEN WILL ONLY GET TO ABOUT 350 OR 400 DEGREES.    A CREMATORY
    11   FUNCTIONS BEST AT 1,650 DEGREES.   THIS IS A HEAT RANGE THAT

    12   WILL CONSUME ALL OF THE PARTS OF THE BODY THAT WILL NOT --

    13   THAT WILL NOT BURN.    THIS IS AN IDEAL OPERATING TEMPERATURE

    14   REQUIRED BY THE CREMATORY DESIGN AND BUILDER.
    15   Q.   AND NOW FROM THE TIME YOU TURN THE MACHINE ON TILL IT

    16   FINISHES HOW MUCH GAS DOES IT TAKE TO CREMATE A BODY?

    17   A.   USUALLY BETWEEN 75 AND 85 GALLONS.

    18            MS. BARNETT:    AND, YOUR HONOR, I FORGOT TO ASK THAT
    19   WE MOVE PLAINTIFF'S EXHIBIT NUMBER 108 INTO EVIDENCE.

    20            THE COURT:    ANY OBJECTION?

    21            MR. JAMES:    NO OBJECTION, YOUR HONOR.
    22            THE COURT:    IT'S ADMITTED.

    23   Q.   HOW LONG DOES THE BODY STAY INSIDE THE CREMATION CHAMBER?
    24   A.   USUALLY BETWEEN THREE AND THREE AND A HALF HOURS,
    25   DEPENDING ON THE SIZE AND CONDITION OF THE BODY.



                      CHARLES BREWER - DIRECT BY BARNETT         55




    1    Q.   AND THEN WHAT HAPPENS?

                                 Page 49
                          Transcript.8.25.04
    2    A.   IT -- ACTUALLY, MOST OF THE BODY IS CONSUMED BY HEAT.
    3    THE REMAINS OR THE CREMATED REMAINS THAT YOU'RE FAMILIAR WITH
    4    ARE USUALLY BONE MATERIAL THAT HAS BURNED TO A POINT THAT IT

    5    CAN BE TURNED INTO ASH.
    6    Q.   AND ARE THE REMAINS REMOVED FROM THE CHAMBER?

    7    A.   THEY'RE REMOVED.   ALL THE REMAINS ARE MOVED -- AS SOON AS
    8    THE CREMATORY COOLS DOWN TO A POINT THAT YOU CAN REOPEN THE
    9    DOOR AND REMOVE THE CREMAINS THERE, THEY ARE CLEANED FROM THE

    10   OVEN BY A CLEANING ROD PLUS A VACUUM TO MAKE SURE THAT ALL
    11   CREMAINS, CREMATED REMAINS, FOR THAT PARTICULAR BODY ARE

    12   REMOVED.

    13   Q.   ONCE THE REMAINS ARE REMOVED, WHAT DOES THE INSIDE OF THE
    14   CREMATION CHAMBER LOOK LIKE?

    15   A.   IT'S USUALLY A WHITE, GRAYISH WHITE COLOR.

    16   Q.   WHY ISN'T IT BLACK AFTER BURNING SOMETHING IN THERE?

    17   A.   USUALLY, A BLACK COLOR INDICATES THAT IT'S NOT REACHED
    18   TEMPERATURE AND IS PROBABLY SMOKING, TO THE EXTENT THAT THE

    19   TEMPERATURE THE CREM -- OF THE OVEN DID NOT REACH ADEQUATE

    20   HEAT.

    21   Q.   SO, HOW DOES IT GET TO BE WHITE?
    22   A.   BY HEAT.

    23   Q.   AFTER YOU HAVE REMOVED THE REMAINS, HOW MUCH IS LEFT

    24   BEHIND?
    25   A.   NONE.



                         CHARLES BREWER - DIRECT BY BARNETT     56




    1    Q.   ALL RIGHT.   SO, THE REMAINS ARE REMOVED OUT.   TELL THE
    2    JURY WHAT HAPPENS NEXT.

    3    A.   AFTER THE CREMATED REMAINS ARE REMOVED, THE DESIGN OF THE
    4    CREMATORY, THIS PARTICULAR CREMATORY THAT WE'RE TALKING ABOUT

                                 Page 50
                          Transcript.8.25.04
    5    IS SIMILAR -- IS EXACTLY THE SAME AS MINE EXCEPT AN OLDER
    6    MODEL.   IT IS A POWER-PAK II.
    7               THE COURT:   YOU'RE TALKING ABOUT THE CREMATORY AT

    8    TRI-STATE?
    9               THE WITNESS:    SIR?     YES.

    10              THE COURT:   YOU'RE TALKING ABOUT THE CREMATORY AT
    11   TRI-STATE?
    12              THE WITNESS:    YES, SIR.       THE CREMATORY AT TRI-STATE

    13   IS A POWER-PAK II MODEL MADE BY INDUSTRIAL EQUIPMENT
    14   ENGINEERING OUT OF ORLANDO, FLORIDA.         IT IS THE SAME MAKE AS

    15   MINE; IT'S JUST AN OLDER MODEL.

    16   A.     THE CREMATORY'S DESIGNED SO THAT THERE IS A CATCH BASIN
    17   IN THE FRONT TO REMOVE ALL OF THE ASHES FROM THAT INTO THE

    18   CATCH BASIN, AND THIS ALSO ALLOWS YOU ADDITIONAL TIME TO COOL

    19   THESE CREMATED REMAINS WHILE YOU CAN FIRE UP THE CREMATORY TO

    20   START THE NEXT CREMATION.
    21   Q.     WHAT HAPPENS TO THE REMAINS THAT --

    22   A.     ONCE THE CREMATED REMAINS ARE COOLED DOWN ENOUGH TO

    23   HANDLE, THEY'RE PLACED IN A PULVERIZING UNIT, AND A MAGNET IS

    24   PLACED -- USED ACROSS THEM TO REMOVE ANY METAL OBJECTS OR
    25   PROSTHESIS SUCH AS ARTIFICIAL HIP JOINTS OR KNEES THAT MAY BE



                        CHARLES BREWER - DIRECT BY BARNETT            57




    1    STILL WITHIN THE CREMATED REMAINS.         THESE ARE REMOVED, AND
    2    THEN THE ASHES ARE PULVERIZED INTO AN ASH AND THEN REMOVED

    3    FROM THE PULVERIZER, PLACED IN A PLASTIC CONTAINER.         THE TAG
    4    WHICH I HAVE IN MY HAND, WHICH IS ON THE BOARD, IS PLACED
    5    INSIDE OF THOSE CONTAINERS OR ON THE OUTSIDE OF THE PLASTIC

    6    BAG.   INSIDE OF THAT BAG IS ALSO A CERTIFICATION BY THE
    7    CREMATORY OPERATOR THAT THAT IS THE CREMATED REMAINS OF WHO

                                   Page 51
                          Transcript.8.25.04
    8    IT'S SUPPOSED TO BE.
    9          THE CREMATED REMAINS ARE PLACED IN A CARDBOARD CONTAINER
    10   OR URN.   AT THAT POINT IN TIME, ANOTHER CERTIFICATE IS PLACED

    11   ON THE OUTSIDE OF THAT CARDBOARD BOX OR CREMATED REMAINS THAT
    12   IT IS THE CERTIFICATION BY THE CREMATORY OPERATOR THAT THAT'S

    13   THE CREMAINS OF WHO IT'S SUPPOSED TO BE.        ALSO ATTACHED TO THE
    14   OUTSIDE IS ALL THE PAPERWORK INVOLVING THAT PARTICULAR
    15   REMAINS, INCLUDING THE PERMIT AND PERMISSION FOR CREMATION.

    16   Q.    AFTER A BODY'S BEEN CREMATED, WITH THE EXCEPTION OF THE
    17   DOCUMENTS YOU JUST DISCUSSED, IS THERE ANY WAY TO TELL WHO THE

    18   PERSON IS?

    19   A.    AFTER CREMATION?
    20   Q.    YES.

    21   A.    NOT THAT --

    22                MR. JAMES:   OBJECT.     OBJECT, YOUR HONOR.   I DON'T

    23   KNOW IF HE'S AN EXPERT IN IDENTIFICATION OF A PERSON OR AN
    24   INDIVIDUAL.

    25                THE COURT:   WELL, I'LL LET HIM TESTIFY AS TO HIS



                         CHARLES BREWER - DIRECT BY BARNETT           58




    1    UNDERSTANDING, BUT I'LL POINT OUT TO THE JURY THAT THAT IS A
    2    SCIENTIFIC RESPONSE WHICH WILL REQUIRE A RESPONSE FROM A

    3    SCIENTIST OF SOME KIND.
    4                 BUT YOU MAY TELL US WHAT YOUR UNDERSTANDING IS ABOUT
    5    IT.

    6                 THE WITNESS:    WELL, I'VE BEEN A -- INVOLVED WITH
    7    DMORT IN THE IDENTIFICATION PROCESS FOR SOME NINE YEARS, AND I
    8    KNOW OF NO METHOD THAT CAN IDENTIFY CREMATED REMAINS.

    9                 THE COURT:   ALL RIGHT.    YOU MAY CONSIDER THAT AS
    10   BEING IN EVIDENCE, LADIES AND GENTLEMEN OF THE JURY, AS AN

                                     Page 52
                          Transcript.8.25.04
    11   OPINION OF THIS WITNESS.
    12              MS. BARNETT:    THANK YOU, YOUR HONOR.
    13   Q.    MR. BREWER, I'M GOING TO BRING YOU ANOTHER DOCUMENT.

    14   IT'S EXHIBIT NUMBER 252.
    15              THE COURT:    YOU CAN TELL IF IT'S HUMAN REMAINS; CAN

    16   YOU NOT?   OR CAN YOU?
    17              THE WITNESS:    YOUR HONOR, I'M NOT -- TEND TO BELIEVE
    18   THAT YOU CAN BECAUSE THE BONE STRUCTURE OF ANIMAL AND HUMANS

    19   ARE DIFFERENT, AND THIS IS BASICALLY WHAT WE'RE TALKING ABOUT.
    20   SO, I WOULD ASSUME THAT THERE WOULD BE SOME METHOD OF

    21   IDENTIFYING HUMAN OR OTHER.

    22              MS. BARNETT:    IF I MAY APPROACH, YOUR HONOR.
    23              MR. JAMES:    WE WOULD OBJECT, YOUR HONOR, TO HIM

    24   TESTIFYING AS TO ANY METHOD.        I MEAN, HE ASSUMED THAT AT THIS

    25   POINT.



                       CHARLES BREWER - DIRECT BY BARNETT           59




    1               THE COURT:    OKAY.   I'LL SUSTAIN THE OBJECTION TO
    2    THAT PORTION OF HIS RESPONSE.

    3               MR. JAMES:    THANK YOU, YOUR HONOR.
    4               MS. BARNETT:    IF I MAY APPROACH.
    5               THE COURT:    YOU MAY GO AHEAD.

    6               MS. BARNETT:    THANK YOU.
    7    Q.    THIS MAY BE OUT OF ORDER.      I HOPE NOT.   EXHIBIT 252,
    8    WHICH I'LL JUST HAND TO THE COURT.       AND IF WE CAN PULL THESE

    9    UP.   IF YOU CAN LOOK AT THESE PAPERS AND JUST TELL ME FIRST OF
    10   ALL WHETHER YOU RECOGNIZE THESE DOCUMENTS.

    11   A.    YES, I DO.
    12   Q.    WHAT ARE THESE?

    13   A.    THESE ARE PAPERWORK PERTAINING TO THE OPERATION OF THE

                                   Page 53
                          Transcript.8.25.04
    14   BROOKSVILLE CREMATORY, WHICH I OWN AND OPERATE.
    15   Q.   ALL RIGHT.   TELL THE JURY WHAT THIS FIRST -- AND YOU CAN
    16   LOOK AT THE SCREEN BECAUSE I'M JUST A LITTLE WORRIED THAT THEY

    17   MIGHT COME UP ON THE SCREEN DIFFERENTLY.
    18   A.   REALLY I NEED TO GET THEM IN CHRONOLOGICAL ORDER.

    19   Q.   OKAY.
    20   A.   IF -- CAN YOU PUT THE CREMATION AUTHORIZATION UP?
    21   Q.   I KNEW THIS WOULD HAPPEN.

    22   A.   THAT'S PAGE 3.    NO, PAGE 3.   IT'S THE CREMATION
    23   AUTHORIZATION.

    24             THE COURT:   IT'S THE FOURTH PAGE.   IT'S THE FOURTH

    25   PAGE IN THE SET I HAVE.



                       CHARLES BREWER - DIRECT BY BARNETT          60




    1              THE WITNESS:    OH, I'M SORRY.   ALL RIGHT, THE FOURTH
    2    PAGE.   ALL RIGHT.

    3              THE COURT:   IT SAYS AT THE TOP OF IT CREMATION
    4    AUTHORIZATION.

    5              THE WITNESS:    OKAY, YES.   SAYS FUNERAL HOME.

    6    Q.   THERE.
    7    A.   THERE IT IS.    OKAY.   THIS IS THE CREMATION AUTHORIZATION.
    8    THIS IS THE MOST -- PROBABLY THE MOST IMPORTANT PAPER OF THE

    9    GROUP, IN THAT THIS IS THE PAPER THAT WOULD BE INVOLVED WITH
    10   THE -- DIRECTLY WITH THE FAMILY.     IT GIVES ALL THE INFORMATION

    11   TO THE FUNERAL HOME THAT -- WHO, THE PERSON BEING CREMATED WHO
    12   -- THE HOUR OF DEATH, AND ALSO THE TYPE OF CONTAINER, WHICH IN

    13   MOST CASES WOULD BE A CARDBOARD BOX.    YOU GO ON DOWN THE FILE,
    14   YOU'LL SEE THAT IT ALSO GIVES US INSTRUCTION, DIRECTIONS,
    15   WHETHER THE CREMAINS WILL BE BURIED, MAILED, OR GIVEN BACK TO

    16   THE FAMILY, AND IN SOME INSTANCES STORED FOR LATER TIME UNTIL

                                  Page 54
                          Transcript.8.25.04
    17   THE FAMILY DECIDE TO PICK THEM UP. WE SPECIFY IN HERE THE
    18   TIME FRAME BECAUSE OTHERWISE IT WOULD SOMETIME BE LONGER THAN
    19   NECESSARY.

    20        THE SECOND SECTION, MOVING ON DOWN THE PAPER, SECOND
    21   SECTION, WE ALSO REQUIRE AS A SAFETY FACTOR FOR OUR FUNERAL

    22   HOME -- UP A LITTLE BUILT.    RIGHT, DOWN, DOWN, RIGHT THERE,
    23   OKAY.   THAT WE ALSO REQUIRE VISUAL IDENTIFICATION OF ALL
    24   REMAINS BEFORE CREMATION TAKES PLACE.      THIS IS IRREGARDLESS OF

    25   WHAT IDENTIFICATION MAY BE ON THE BODY WHEN WE RECEIVE IT OR



                       CHARLES BREWER - DIRECT BY BARNETT         61




    1    WHO OR WHERE IT MAY COME FROM.      WE REQUIRE THE FAMILY MAKE
    2    VISUAL IDENTIFICATION AND SIGN AS IDENTIFIER AND WHO WITNESSED

    3    THAT AT THE TIME OF THE VISUAL IDENTIFICATION.
    4        WE GO ON DOWN THE FORM.        HERE AGAIN IT IS AN

    5    INDEMNIFICATION TO HOLD THE CREMATORY NOT LIABLE FOR -- OR

    6    BLAMELESS OR HARMLESS FOR ANY LIABILITY.      IT IS ALSO DOWN THE
    7    SECOND PARAGRAPH, WHICH IS IMPORTANT, WHICH SAYS THAT THE

    8    ABOVE MENTIONED REMAINS DOES OR DOES NOT HAVE A PACEMAKER.       A

    9    PACEMAKER IS A SEALED UNIT WITHIN THE BODY THAT CAN CAUSE
    10   DAMAGE TO THE CREMATORY ONCE THAT SEAL EXPLODES IN A

    11   CREMATORY.
    12       THE BOTTOM ONE IS THE -- AGAIN, IS THE SIGNED

    13   AUTHORIZATION BY THE NEXT OF KIN TO -- FOR THE -- FOR THE
    14   CREMATION.   AT THE VERY BOTTOM OF THIS FORM, YOU'LL SEE THAT
    15   WE ALSO REQUIRE THE PERSON PICKING UP THOSE CREMAINS TO AGAIN

    16   SIGN THIS PAPER SAYING THAT THEY HAVE RECEIVED THE CREMAINS,
    17   OR CREMATED REMAINS, FROM THE FUNERAL HOME.
    18             MS. BARNETT:    ALL RIGHT.    YOUR HONOR, I'D LIKE TO,

    19   JUST FOR EASE OF REFERENCE, MARK THAT AS 252-A, AND I SHOULD

                                  Page 55
                          Transcript.8.25.04
    20   HAVE DONE IT BEFORE. I APOLOGIZE.
    21              THE COURT:   ALL RIGHT.
    22   A.   OKAY.   THE -- LET'S GO BACK TO PAGE 2, THE DELIVERY DATE,

    23   TIME AND DELIVERY, FUNERAL HOME.     THAT WOULD BE PAGE 2.
    24   DELIVERY DATE, TIME OF DELIVERY.

    25   Q.   THAT'S IT.



                       CHARLES BREWER - DIRECT BY BARNETT         62



    1    A.   OKAY.   THIS IS THE PAGE THAT WE HAVE AT THE VERY BACK

    2    DOOR ENTRANCE TO THE -- RECEIVING ENTRANCE TO THE FUNERAL
    3    HOME.   WHEN A BODY COMES THROUGH THAT DOOR, IT MUST BE SIGNED

    4    IN, A DELIVERY DATE, THE TIME, AND THE FUNERAL HOME.     WE DO

    5    CREMATIONS FOR OTHER FUNERAL HOMES, AND IF THAT CASE, THEY ARE
    6    REQUIRED TO SIGN IN BODIES ALSO.     THEY ARE SIGNED IN, THE NAME

    7    OF DECEASED, AND IF -- AND WHEN THEY CAME INTO THE FUNERAL
    8    HOME, AGAIN WHEN THEY LEFT.    WE REQUIRE THIS OF ALL STAFF AND

    9    ALSO OTHER FUNERAL HOMES THAT MAY SIGN IN.

    10             MS. BARNETT:    ALL RIGHT.   I'D LIKE TO MARK THAT
    11   252-B, YOUR HONOR.

    12             THE COURT:    ALL RIGHT.

    13   A.   OKAY.   THE NEXT FORM WOULD BE THE -- I'M NOT -- I'VE GOT
    14   THEM OUT OF SEQUENCE.    NOW, THIS IS THE REMOVAL SIGN-IN SHEET.

    15   THAT'S IT.   THIS FORM -- AFTER THE BODY HAS BEEN PLACED IN THE
    16   RECEIVING ROOM, THIS PIECE OF PAPER IS IN A NOTEBOOK FORM,
    17   WOULD BE FILLED OUT BY THE REMOVAL PERSON, AND IT WOULD GIVE

    18   THE NAME OF DECEASED AT THE TIME OF REMOVAL, DATE AND SO
    19   FORTH, CLOTHING.   WE DO NOT ACCEPT PERSONAL -- ACCEPT
    20   VALUABLES ON REMAINS. IF WE -- SOMETIMES IT BECOMES NECESSARY,

    21   SO WE REQUIRE THAT THOSE BE ITEMIZED AND THAT THE FUNERAL HOME

    22   OR DIRECTOR HANDLING THE PARTICULAR CASE BE NOTIFIED

                                  Page 56
                          Transcript.8.25.04
    23   IMMEDIATELY OF THE VALUABLES, AND IF THEY ARE REMOVED, THEY'RE
    24   PLACED IN THE SAFE WITHIN THE FUNERAL HOME.
    25   Q.   ALL RIGHT, WE'LL CALL THAT ONE 252-C.     AND WHAT'S THE



                        CHARLES BREWER - DIRECT BY BARNETT        63



    1    NEXT DOCUMENT?

    2    A.   OKAY.    THE -- HERE AGAIN IT'S WHETHER A BODY IS TO BE
    3    EMBALMED OR CREMATED IF -- AND AT THIS TIME, THE I.D. TAG THAT
    4    I MENTIONED EARLIER WILL BE PLACED ON THE BODY, AND THE FACE

    5    SHEET OF THIS WOULD GO TO THE FRONT OFFICE, AND ARRANGEMENTS
    6    WOULD BE MADE TO CONTACT THE FAMILY.

    7         OKAY.    THE NEXT ONE WOULD BE THE --
    8    Q.   HOLD ON JUST ONE SECOND BECAUSE I WANT TO GET THAT

    9    DOCUMENT BACK UP.   WHAT YOU'RE TALKING ABOUT IS THIS RIGHT

    10   HERE WHERE IT SAYS I.D. TAG.
    11   A.   RIGHT.

    12   Q.   RIGHT THERE.

    13   A.   THAT IS A HOSPITAL TYPE TAG PLACED ON THE RIGHT ANKLE

    14   ALWAYS OF REMAINS, UNLESS OF COURSE IT'S AMPUTATION, THEN
    15   PLACED ON THE LEFT ANKLE.   THAT HAS A WHITE HOSPITAL TYPE TAG,

    16   THAT IT HAS THE NAME OF THE DECEASED AND THE DATE THAT THE --
    17   DATE OF DEATH.    THAT IS ON ALL REMAINS, REGARDLESS OF WHETHER

    18   IT'S CREMATION OR EMBALMING.      THAT TAG STAYS WITH THAT BODY
    19   THROUGHOUT AND IF IT'S A BURIAL WITH THE TAG OR OTHERWISE
    20   CREMATED WITH IT.

    21   Q.   NOW, YOU SAID IT'S A HOSPITAL LIKE TAG, BUT IS THAT A TAG

    22   YOU CREATE AND PLACE ON THE DECEDENTS?
    23   A.   I TAG ALL BODIES, REGARDLESS OF WHAT TAGS ARE ON THE

    24   BODIES.
    25   Q.   ALL RIGHT.   NOW, SO THAT WAS 252-C.    IF WE COULD MOVE ON

                                 Page 57
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                         CHARLES BREWER - DIRECT BY BARNETT        64



    1    TO THE NEXT DOCUMENT.

    2    A.     OKAY.   THE NEXT ONE WOULD BE THE BROOKSVILLE CREMATORY,
    3    WHICH IS THE SEQUENTIAL NUMBERING SYSTEM THAT WE USE THE TAG
    4    FOR.   THAT WOULD BE -- NO, THAT'S NOT IT.     THE -- THAT'S NOT

    5    THE ONE.
    6           THAT'S IT.   ALL RIGHT.   THIS IS A FORM HERE AGAIN THAT WE

    7    USE, A TRACKING SYSTEM THAT WE USE, TO -- NOT ONLY TO KEEP A
    8    SEQUENTIAL NUMBERING SYSTEM OF THE TAGS BUT ALSO TO MAKE SURE

    9    THAT WE KNOW WHO OPERATED THE CREMATORY, THE NUMBERING SYSTEM;

    10   AND IF IT IS FROM OUR FUNERAL HOMES OR FROM ANOTHER FUNERAL
    11   HOME, THEN WE KNOW WHICH FUNERAL HOME IT IS, PLUS THE NAME OF

    12   DECEASED, THE DATE AND TIME.       TIME IS VERY IMPORTANT BECAUSE

    13   WE HAVE A WAITING PERIOD, AND WE MUST STAY WITHIN THAT WAITING

    14   PERIOD.
    15          AND THE TIME IT WAS PLACED IN REFRIGERATION, WHICH MUST

    16   BE EITHER EMBALMED OR PLACED IN REFRIGERATION WITHIN 24 HOURS

    17   AFTER DEATH.    THE DATE AND TIME IT WAS PLACED IN THE CREMATORY

    18   CHAMBER, THE DATE AND TIME THE CREMATION'S COMPLETED, AND THE
    19   PERSON RETRIEVING THE REMAINS AND THE DATE RETRIEVED.      THAT'S
    20   SOMEWHAT OF A MISNOMER.     THAT'S THE -- IF IT WAS -- IF THE

    21   BODY'S GOING TO ONE OF THE OTHER FUNERAL HOMES, THAT THE --

    22   WHOEVER TAKES IT MUST SIGN OUT, TRACK IT FROM WHEN IT LEAVES
    23   THE FUNERAL HOME, AND THEN THE PERSON GIVING IT BACK TO THE

    24   FAMILY WOULD SIGN THE CREMATION AUTHORIZATION, WHICH IS, BY
    25   THE WAY, PART OF THE CREMATION PACKAGE WHEN IT LEAVES.



                         CHARLES BREWER - DIRECT BY BARNETT        65



                                  Page 58
                            Transcript.8.25.04
    1    Q.   WHAT IS THE --

    2             THE COURT:     WHEN IS THE CREMATION COMPLETED?      WHEN
    3    IS IT COMPLETED?
    4             THE WITNESS:     WHEN IT'S COM --

    5             THE COURT:     YES.   WHEN IS IT COMPLETED, WHEN YOU
    6    TURN OFF THE GAS OR WHEN YOU REMOVE THE REMAINS?
    7             THE WITNESS:     THE POWER-PAK II IS AN AUTOMATIC

    8    SYSTEM, YOUR HONOR, AND IT TURNS ITSELF OFF.        AND THEN YOU

    9    CANNOT REMOVE THE CREMAINS AT THAT POINT IN TIME BECAUSE THE
    10   OVEN'S TOO HOT.    YOU HAVE TO USE -- LET IT COOL DOWN TO
    11   APPROXIMATELY 1,000 DEGREES, AND THEN AT THAT POINT IT'S COOL

    12   ENOUGH TO BEGIN COMPLETING THE CLEANING OF THE CREMAINS,

    13   CREMATED REMAINS.    IN A GIVEN DAY, WE WILL USUALLY CREMATE
    14   FOUR A DAY AND --

    15            THE COURT:     YES, BUT MY POINT IS:       WHEN, WHAT TIME

    16   DO YOU SAY IT'S COMPLETED?

    17            THE WITNESS:     WHEN THE MACHINE SHUTS ITSELF OFF AND

    18   WHEN IT'S COOL ENOUGH TO REMOVE THE CREMAINS.
    19            THE COURT:     SO, IT'S WHEN THE REMAINS ARE REMOVABLE.

    20            THE WITNESS:     YES, SIR.     YES, SIR.

    21            THE COURT:     FROM THE CHAMBER.
    22            THE WITNESS:     YES, SIR.     YES, SIR.   AND WE DON'T LET
    23   -- IT DOESN'T GO BACK TO ZERO BECAUSE OBVIOUSLY ONCE THE

    24   CHAMBER IS HEATED IT'S MUCH LESS TO CONTINUE USING IT RATHER

    25   THAN LET IT COOL DOWN AND START OVER AGAIN.



                      CHARLES BREWER - DIRECT BY BARNETT             66



    1             THE COURT:     EXCUSE ME FOR INTERRUPTING.
    2             THE WITNESS:     THAT'S ALL RIGHT.

    3             MS. BARNETT:     NO, I APPRECIATE IT.
                                 Page 59
                            Transcript.8.25.04
    4    Q.   SO, TO BE CLEAR ON HERE, THE FAR RIGHT-HAND SIDE, THE

    5    DATE AND TIME CREMATION COMPLETED, THE DATE AND TIME YOU PUT
    6    IN THERE IS WHAT?    THAT'S THE DATE AND TIME YOU PULL THE
    7    REMAINS FROM THE --

    8    A.   THAT IS THE DATE AND TIME THE CREMATION'S COMPLETED.      THE
    9    CREMATED REMAINS ARE PULVERIZED AND PLACED IN A CONTAINER TO
    10   RETURN TO THE FAMILY, EITHER A PLASTIC CONTAINER OR AN URN.

    11   Q.   AND OVER ON THE LEFT-HAND SIDE, CREMATION NUMBER, WHAT'S

    12   THE CREMATION NUMBER?
    13   A.   THE CREMATION NUMBER IS A SEQUENTIAL NUMBER THAT GOES
    14   WITH THE METAL TAG THAT YOU GAVE ME.

    15   Q.   IS EVERY SINGLE DECEDENT WHO COMES TO YOUR FACILITY FOR

    16   CREMATION -- THE INFORMATION ABOUT THEM ENTERED ON THIS LOG?
    17   A.   ABSOLUTELY.

    18   Q.   ALL RIGHT.    LET'S GO TO THE FINAL -- I DON'T KNOW IF I

    19   SAID LET'S CALL THAT ONE 252-D, BUT LET'S DO AND MOVE TO THE

    20   FINAL DOCUMENT.

    21   A.   OKAY.    THIS IS THE CERTIFICATION THAT IS FILLED OUT.
    22   HERE AGAIN THE DATE OF DEATH, THE COUNTY OF DEATH, THE DATE OF

    23   CREMATION, THE PERMIT NUMBER.    NOW, THE PERMIT NUMBER'S THE

    24   NUMBER ISSUED BY THE HEALTH DEPARTMENT AND WOULD BE DIFFERENT
    25   TO THE NUM -- OUR CREMATION NUMBER.     THEN THE CREMATION



                        CHARLES BREWER - DIRECT BY BARNETT       67




    1    NUMBER, THE FUNERAL HOME.    AND IT'S SIGNED BY THE CREMATORY
    2    OPERATOR.    THIS IS A -- PLACED INSIDE THE PLASTIC CONTAINER OF
    3    THE CREMAINS FIRST OF ALL WITH THE METAL CONTAINER.    THESE

    4    NUMBERS CORRESPOND.    AND THEN ON THE OUTSIDE OF THE BOX, THIS
    5    HAS A GUM STICKY BACK WHICH IS PLACED ON THE BOX ITSELF.      SO,
    6    THERE ARE TWO COPIES.    THERE'S ONE INSIDE THE CREMAINS AND ONE
                                 Page 60
                            Transcript.8.25.04
    7    ON THE OUTSIDE OF THE BOX.

    8                MS. BARNETT:   YOUR HONOR, I WOULD --
    9    A.   AND THIS IS A STANDARD PRACTICE THROUGHOUT THE INDUSTRY.
    10   Q.   THANK YOU.

    11               MS. BARNETT:   AND WE CAN TAKE THOSE DOWN OFF THE
    12   SCREEN, LUKE.    THANK YOU.
    13               ALL RIGHT.   YOUR HONOR, AT THIS TIME I'D ASK THAT WE

    14   ENTER EXHIBITS 252-A THROUGH E INTO EVIDENCE.

    15               THE COURT:   ANY OBJECTION?
    16               MR. JAMES:   NO OBJECTION, YOUR HONOR.
    17               THE COURT:   ADMITTED.

    18   Q.   HOW LONG HAVE YOU USED DOCUMENTS SUCH AS THESE IN YOUR

    19   OPERATION OF A CREMATORY?
    20   A.   SINCE WE'VE OPERATED A CREMATORY.

    21   Q.   SINCE 1988?

    22   A.   YES.

    23   Q.   AND IS DOCUMENTATION THAT IS THIS CAREFUL REQUIRED OF ALL

    24   CREMATORY OPERATORS?
    25   A.   YES.



                         CHARLES BREWER - DIRECT BY BARNETT      68




    1    Q.   I WANT TO TALK MORE SPECIFICALLY ABOUT STANDARD OF CARE.
    2    WE TALKED ABOUT IT A LITTLE BIT.     ARE YOU FAMILIAR WITH AN

    3    ORGANIZATION CALLED CANA?
    4    A.   YES, CREMATION ASSOCIATION OF NORTH AMERICA.

    5    Q.   I WANT TO SHOW YOU -- WELL, TELL THE JURY A LITTLE BIT
    6    ABOUT WHAT CANA -- CREMATION ASSOCIATION OF NORTH AMERICA,
    7    WHAT DO THEY DO?

    8    A.   CREMATION ASSOCIATION OF NORTH AMERICA, AN ASSOCIATION, A
    9    NATIONAL ASSOCIATION, WHICH IS -- HERE AGAIN SETS THE STANDARD
                               Page 61
                            Transcript.8.25.04
    10   OF CARE FOR ALL CREMATORY OPERATORS, REGARDLESS OF WHAT LOCAL

    11   LAW OR LAWS ARE CONCERNED WITH.    IT'S A STANDARD OF OPERATING
    12   PROCEDURE.
    13   Q.   I'M GOING TO HAND YOU A DOCUMENT.   LET ME GIVE THE

    14   DEFENDANT ONE.    THIS IS EXHIBIT NUMBER 95.
    15             MS. BARNETT:    IF I MAY APPROACH, YOUR HONOR.
    16             THE COURT:    YES, MA'AM.

    17   Q.   DO YOU RECOGNIZE THIS DOCUMENT?

    18   A.   YES, I DO.
    19   Q.   WHAT IS IT?
    20   A.   IT IS A CODE OF CREMATION PRACTICE.

    21   Q.   WOULD YOU AGREE THAT IT -- WHO'S IT PUBLISHED BY?

    22   A.   IT IS PUBLISHED BY THE CREMATION ASSOCIATION OF NORTH
    23   AMERICA, OR CANA.

    24   Q.   WOULD YOU AGREE THAT IT SETS FORTH THE STANDARD OF CARE

    25   FOR THE PRACTICE OF PERFORMING CREMATIONS?



                         CHARLES BREWER - DIRECT BY BARNETT     69




    1    A.   ABSOLUTELY.
    2    Q.   HAS IT BEEN THE STANDARD OF CARE SINCE 1988?

    3    A.   IT'S BEEN THE STANDARD OF CARE SINCE CREMATION HAS BEEN
    4    IN EXISTENCE.

    5             MS. BARNETT:     YOUR HONOR, I'D ASK THAT EXHIBIT
    6    NUMBER 95 BE ADMITTED INTO EVIDENCE.
    7             THE COURT:     ANY OBJECTION?

    8             MR. JAMES:     NO OBJECTION, YOUR HONOR.
    9             THE COURT:     IT'S ADMITTED.
    10   Q.   I WANT TO ASK YOU ABOUT JUST A FEW SPECIFIC ITEMS IN

    11   HERE, AND I WANTED TO POINT YOUR ATTENTION TO THE SECOND
    12   PARAGRAPH, BUT YOU DON'T NEED TO -- YOU CAN LEAVE -- I THINK
                               Page 62
                            Transcript.8.25.04
    13   IT'S BIG ENOUGH TO READ.    THE SECOND PARAGRAPH, THAT A

    14   CREMATION AUTHORITY SHALL BE RESPONSIBLE FOR CREATING AND
    15   MAINTAINING AN ATMOSPHERE OF RESPECT AT ALL TIMES.   DO YOU
    16   AGREE SPECIFICALLY THAT THAT IS REQUIRED BY THE STANDARD OF

    17   CARE?
    18   A.   ABSOLUTELY.
    19   Q.   WHAT DOES THAT MEAN, CREATING AND MAINTAINING AN

    20   ATMOSPHERE OF RESPECT?

    21   A.   IT MEANS LIVE BY THE GOLDEN RULE AND THAT ANYONE THAT
    22   TRUSTS YOU TO HANDLE THEIR LOVED ONE SHOULD BE HANDLED IN THAT
    23   MANNER.

    24   Q.   DOES IT APPLY EVEN IF NOBODY'S WATCHING WHAT YOU'RE

    25   DOING?



                      CHARLES BREWER - DIRECT BY BARNETT         70




    1    A.   I'M SORRY?

    2    Q.   DOES IT APPLY EVEN IF NO ONE'S WATCHING WHAT YOU'RE
    3    DOING?

    4    A.   ABSOLUTELY.

    5    Q.   I WANT TO POINT TO THE NEXT PARAGRAPH, WHICH SAYS:      THE
    6    GREATEST CARE SHOULD BE TAKEN IN THE APPOINTMENT OF CREMATORY

    7    STAFF MEMBERS, ANY OF WHOM MUST NOT BY CONDUCT OR DEMEANOR
    8    BRING THE CREMATORY OR CREMATION INTO DISREPUTE.   AGAIN, WOULD
    9    YOU AGREE THAT THAT'S REQUIRED BY THE STANDARD OF CARE?

    10   A.   ABSOLUTELY.
    11   Q.   HAS IT BEEN SO SINCE 1988?
    12   A.   YES.

    13   Q.   DOES THE STANDARD OF CARE FOR PERFORMING CREMATIONS ALLOW

    14   A CREMATORY OPERATOR TO MIX TOGETHER THE REMAINS OF DECEDENTS?
    15   A.   NO.
                                  Page 63
                           Transcript.8.25.04
    16   Q.   DOES THE STANDARD OF CARE PERMIT THE CREMATION OF ANIMALS

    17   IN A CHAMBER WHERE HUMANS ARE CREMATED?
    18   A.   NO.
    19   Q.   DOES THE STANDARD OF CARE REQUIRE THAT A CREMATORY

    20   OPERATOR RETURN THE RIGHT DECEDENT TO A FAMILY?
    21   A.   YES.
    22   Q.   DOES THE STANDARD OF CARE PERMIT REMAINS A CREMATORY

    23   OPERATOR RETURNS TO HAVE THE TEETH, DENTAL WORK, OR JEWELRY OF

    24   ANOTHER PERSON?
    25   A.   NO.



                        CHARLES BREWER - DIRECT BY BARNETT       71




    1    Q.   CAN YOU THINK OF ANY NON-NEGLIGENT MANNER IN WHICH THAT

    2    WOULD OCCUR?
    3    A.   NO.

    4    Q.   DOES THE STANDARD OF CARE REQUIRE A CREMATORY OPERATOR TO

    5    OBTAIN LICENSING IF THE STATE OFFERS LICENSING?
    6    A.   YES.

    7    Q.   DOES THE STANDARD OF CARE PERMIT A CREMATORY OPERATOR TO
    8    RETURN CEMENT TO A FAMILY?
    9    A.   NO.

    10   Q.   DOES THE STANDARD OF CARE PERMIT A CREMATORY OPERATOR TO
    11   LEAVE BODIES EXPOSED TO THE ELEMENTS?
    12   A.   NO.

    13   Q.   NOW I WANT TO TALK SPECIFICALLY ABOUT YOUR WORK WITH

    14   DMORT AT THE MARSH CREMATORY IN NOBLE, GEORGIA.     I THINK YOU
    15   SAID THIS, BUT LET ME ASK IT.   WERE YOU PART OF THE DMORT TEAM

    16   SENT THERE TO NOBLE TO THE MARSH CREMATORY?

    17   A.   YES.
    18   Q.   HOW DOES MARSH -- BEFORE WE TALK ABOUT IT SPECIFICALLY,
                               Page 64
                            Transcript.8.25.04
    19   YOU SAID DMORT'S PRIMARY OBJECTIVE IS TO -- WELL, TO RECOVER

    20   THE REMAINS AND IDENTIFY THEM.    HOW DO YOU GO ABOUT -- WHAT'S
    21   THE PROCESS LIKE?
    22   A.   WELL, THE PROCESS IS SET UP IN STAGES.   EACH BODY IS --

    23   THAT COMES INTO THE -- TO THE -- TO THE SYSTEM IS AGAIN
    24   NUMBERED JUST AS WE'VE DONE, TAGGED FOR IDENTIFICATION
    25   PURPOSES LATER.    IT IS GIVEN CERTAIN PAPERWORK.   EACH BODY IS



                        CHARLES BREWER - DIRECT BY BARNETT       72




    1    GIVEN A TRACKER OR PERSON TO STAY WITH THAT BODY THROUGHOUT

    2    THE WHOLE SYSTEM AND TO MAKE ANY REMARKS OR COMMENTS.
    3         THE FIRST STATION WOULD BE THE PATHOLOGY, WHERE THE

    4    PATHOLOGIST WOULD EXAMINE THE BODY, REMOVE ANY PERSONAL

    5    EFFECTS.   PERSONAL EFFECTS WOULD BE RECORDED.   IN MOST
    6    INSTANCES THAT WE'RE INVOLVED WITH ARE CRIME SCENES, SO

    7    THEY'RE RECORDED AND TRACKED.    THAT'S THE REASON -- THAT'S ONE
    8    REASON THAT THE TRACKER STAYS WITH THE BODY THROUGHOUT THE

    9    SYSTEM.    AFTER THIS HAS BEEN DONE AND ANY IDENTIFYING TATTOOS

    10   -- ANY DEFORMITY OR TATTOOS OR SCARS OR ANYTHING THAT WOULD
    11   HELP IN THE IDENTIFICATION OF THAT BODY IS RECORDED AND INTO

    12   THE PAPERWORK.
    13        THE NEXT STOP WOULD BE X-RAY, WHERE WE DO FULL BODY
    14   X-RAYS OF ALL EXTREMITIES, PLUS THE BODY ITSELF.    HERE AGAIN

    15   WE'RE LOOKING FOR ANYTHING THAT MAY HELP IN IDENTIFICATION,
    16   SUCH AS AN OLD BROKEN LEG BONE OR PROSTHESIS OR A METAL HIP OR
    17   OTHER PIECES THAT HAVE BEEN PLACED IN THE BODY.     THESE ARE ALL

    18   NUMBERED AND MAKES FOR VERY GOOD IDENTIFICATION
    19   CHARACTERISTICS.
    20        ONCE THAT BODY LEAVES THE X-RAY, IT GOES TO FINGERPRINT.

    21   THE BODY -- ALL FINGERS ARE PRINTED AND RECORDED IN THE
                               Page 65
                           Transcript.8.25.04
    22   COMPUTER SYSTEM; WHICH, WE HAVE ACCESS TO A WIDE VARIETY AND

    23   RANGE OF FINGERPRINTS THROUGH THE FBI AND THROUGH NCIC.
    24        THE BODY THEN GOES TO DENTAL, WHICH THE ODONTOLOGIST OR
    25   DENTIST, FORENSIC DENTIST, TAKE FULL X-RAYS OF ALL TEETH,



                         CHARLES BREWER - DIRECT BY BARNETT      73



    1    IDENTIFYING ANY DENTAL WORK THAT MAY HAVE BEEN DONE, AND HERE

    2    AGAIN IS EXCELLENT IDENTIFICATION.
    3         AND THEN IT GOES TO ANTHROPOLOGY, AND IN CASES WHERE WE

    4    ONLY HAVE BONE MATERIAL, BONES OR NOT COMPLETE BODIES TO WORK

    5    WITH.
    6         AND THEN OF COURSE THE LAST STAGE WOULD BE DNA.    ALL

    7    REMAINS ARE CHECKED FOR -- WITH DNA AND RECORDED, AND THEN THE
    8    BODY IS -- ALL THE PAPERWORK IS RETURNED TO THE ADMITTING

    9    STATION.   THE ESCORT TAKES THE BODY BACK TO THE -- TO THE

    10   COOLING FACILITY AND THEN GOES BACK TO START OVER AGAIN.
    11   Q.   AND ONE PERSON STAYS WITH THE SET OF REMAINS THROUGHOUT

    12   THIS PROCESS?

    13   A.   WELL, THERE ARE TWO STAGES.   THE OTHER STAGE IS FAMILY

    14   SERVICE ASSISTANCE CENTER, WHICH IS USUALLY TOTALLY SEPARATE
    15   FROM THE OPERATIONS OF THE MORGUE.     THIS IS AN IDENTIFICATION

    16   OF A PERSON; THAT A PERSON WOULD SIT DOWN WITH FAMILY MEMBERS

    17   AND GO THROUGH A VERY EXTENSIVE FORMS OF IDENTIFICATION WHERE
    18   THERE MAY BE A SPECIFIC TATTOO OR SOME OTHER FORM THAT WOULD
    19   MAKE FOR EASY IDENTIFICATION.   WE ALSO -- THEY ALSO TRY TO

    20   ASCERTAIN IF THEY HAVE X-RAYS OR A DENTIST OR DOCTOR THAT
    21   WOULD HAVE X-RAYS THAT WOULD HELP COMPARE THE X-RAYS THAT WE
    22   HAVE.   ONCE ALL THAT INFORMATION'S BEEN RECORDED IN THE

    23   COMPUTER, PLUS THE INFORMATION THAT WE RECEIVE FROM THE
    24   MORGUE, THEN THE COMPARISON STARTS TO FIND THE CORRECT
                               Page 66
                            Transcript.8.25.04
    25   IDENTIFICATION OF ALL REMAINS.



                      CHARLES BREWER - DIRECT BY BARNETT         74



    1    Q.   HOW DID DMORT BECOME INVOLVED WITH THE INVESTIGATION AT

    2    THE MARSH CREMATORY?
    3    A.   WE WERE REQUESTED BY THE GOVERNOR OF GEORGIA TO ASSIST.

    4    WE HAVE ASSISTED THEM BEFORE IN THE ALBANY FLOODS WHEN THE
    5    FLINT RIVER FLOODED THE CEMETERY AND REMAINS CAME OUT OF THE
    6    CEMETERY, AND WE ASSISTED THE GBI IN RECOVERING THOSE REMAINS

    7    AND RE-IDENTIFYING THEM AND REBURYING THEM.
    8    Q.   WHEN DID YOU PERSONALLY ARRIVE ON THE SCENE IN NOBLE?

    9    A.   MONDAY MORNING AFTER THE NOTIFICATION ON SUNDAY.

    10   Q.   AFTER THE FIRST DISCOVERIES?
    11   A.   NO, AFTER THE NOTIFICATION BY MYSELF.    THE DISCOVERY I

    12   BELIEVE WAS ON FRIDAY OR SATURDAY.

    13   Q.   WERE YOU ASKED BY ANYONE TO EXAMINE THE CREMATION

    14   CHAMBER?
    15   A.   YES, I WAS.

    16   Q.   WHO ASKED YOU TO DO THAT?

    17   A.   AN INVESTIGATOR FOR THE STATE'S ATTORNEY'S OFFICE BY THE

    18   NAME OF BASS, B-A-S-S.
    19   Q.   WHEN DID YOU DO THAT?

    20   A.   DID THAT ON TUESDAY MORNING, WEDNESDAY MORNING.
    21   Q.   AND WHAT DID YOU FIND?
    22   A.   I FOUND THE CREMATORY ITSELF IN A STATE OF DISREPAIR, THE

    23   BUILDING ITSELF ALSO.    THE BODIES HAD ALREADY BEEN REMOVED
    24   WHEN I INSPECTED THE CREMATORY, BUT THE DISTINCT ODOR OF
    25   DETERIORATING BODIES WAS STILL VERY EVIDENT IN THE BUILDING.



                      CHARLES BREWER - DIRECT BY BARNETT         75
                              Page 67
                           Transcript.8.25.04



    1    Q.   AND I THINK YOU MENTIONED THIS, BUT WHAT MODEL WAS THERE?

    2    A.   POWER-PAK II.
    3    Q.   AND ARE YOU FAMILIAR WITH IT?

    4    A.   YES.
    5    Q.   I THINK YOU ALLUDED TO THIS BEFORE, BUT HOW ARE YOU
    6    FAMILIAR WITH IT?

    7    A.   IT'S MANUFACTURED BY THE SAME COMPANY THAT MANUFACTURES
    8    MY CREMATORY.    IT'S JUST AN OLDER MODEL.

    9    Q.   LET ME HAND YOU WHAT'S BEEN MARKED AS EXHIBIT 225.        I ASK

    10   YOU TO LOOK AT WHAT'S BEEN MARKED AS 225.     DON'T PAY ATTENTION
    11   TO THE SCREEN RIGHT THIS MINUTE.

    12   A.   OKAY.

    13   Q.   BUT CAN YOU TELL US WHAT -- ARE YOU FAMILIAR WITH WHAT

    14   225 IS?
    15   A.   YES.    THIS IS THE INSTRUCTION MANUAL THAT COMES WITH

    16   EVERY RETORT, COMMISSION EQUIPMENT.

    17   Q.   AND DOES THIS APPLY TO THE MODEL THAT WAS AT THE

    18   CREMATORY IN NOBLE?
    19   A.   YES.

    20               MS. BARNETT:    YOUR HONOR, I'D ASK THAT EXHIBIT

    21   NUMBER 225 BE ADMITTED INTO EVIDENCE.
    22               MR. JAMES:   WE'RE GOING TO OBJECT, YOUR HONOR.    WE

    23   DON'T KNOW THAT THIS IS THE MANUAL THAT WAS RECEIVED WITH THIS
    24   PARTICULAR POWER-PAK OR THIS PARTICULAR RETORT.      AND HE
    25   CERTAINLY CAN TESTIFY GENERALLY AS TO THE POWER-PAK ITSELF,



                         CHARLES BREWER - DIRECT BY BARNETT       76




    1    BUT WE CERTAINLY ARE NOT GOING TO AGREE THAT THIS APPLIES TO

                                    Page 68
                          Transcript.8.25.04
    2    THE MARSH RETORT OR THE MARSH OPERATIONS.
    3                THE COURT:   ALL RIGHT, I'LL SUSTAIN THE OBJECTION AT
    4    THIS POINT.

    5    Q.   WELL, YOU KNOW WHAT THE MODEL IS THAT YOU SAW IN NOBLE,
    6    GEORGIA, THE MODEL CREMATORY CHAMBER?

    7    A.   YEAH.    IT WAS -- IT WAS BASICALLY THE SAME.     THERE
    8    HAVEN'T BEEN A WHOLE LOT OF CHANGES.      THERE HAVE BEEN SOME
    9    UPGRADES IN THE UNIT ITSELF, BUT AS FAR AS THE BASIC

    10   CONFIGURATION OF THE CREMATORY UNIT HASN'T CHANGED IN YEARS.
    11   Q.   ALL RIGHT, LET ME ASK YOU THIS.      LET ME ASK YOU TO TURN

    12   TO PAGE 25 OF THIS DOCUMENT.

    13               MR. JAMES:   SAME OBJECTION, YOUR HONOR, IF HE'S
    14   GOING TO TESTIFY FROM THIS DOCUMENT AS IT RELATES TO THE

    15   TRI-STATE CREMATORY.

    16               THE COURT:   I DON'T KNOW WHETHER HE'S GOING TO

    17   TESTIFY FROM IT OR NOT YET, MR. JAMES.      SHE MAY JUST ASK HIM,
    18   "IS THIS A PRINTED PAGE?"    LET HER ASK THE QUESTION.

    19               MR. JAMES:   I WILL, YOUR HONOR.   OKAY.

    20   Q.   ON PAGE 25 -- IT'S HARD TO READ, BUT THE TOP OF IT SAYS

    21   SEMIANNUAL CREMATOR SERVICE.       HAVE YOU HAD A CHANCE TO REVIEW
    22   THE THINGS THAT ARE REQUIRED AS A SEMIANNUAL CREMATOR SERVICE?

    23   A.   YOU MEAN TO HAVE SOMEONE OUTSIDE OF MY ORGANIZATION

    24   EXAMINE THE CREMATORY?
    25   Q.   NO, NO.   I MEAN, HAVE YOU HAD A CHANCE TO READ WHAT'S



                        CHARLES BREWER - DIRECT BY BARNETT         77




    1    LISTED HERE AS THINGS THAT ARE REQUIRED?
    2    A.   YES, YES, YES.

    3    Q.   AND WOULD YOU AGREE THAT THOSE ARE REQUIRED IN THE --
    4    A.   YES.

                                  Page 69
                          Transcript.8.25.04
    5    Q.   THEY'RE REQUIRED TO BE DONE SEMIANNUALLY IN THE OPERATION
    6    OF A CREMATORY UNIT LIKE THE ONE AT TRI-STATE?
    7    A.   YES.

    8    Q.   ARE THOSE THINGS THAT YOU DO AT YOUR FACILITY?
    9    A.   ABSOLUTELY.   ANY TIME -- AND THIS DOESN'T MATTER.   THE

    10   CREMATORY IS A HIGH OPERATING MAINTENANCE PIECE OF EQUIPMENT
    11   BECAUSE IT REQUIRES INTENSE HEAT, AND IT IS A BRICK-LINED
    12   OVEN, AND IT IS -- IT HAS SO MANY SAFETY FEATURES ON IT THAT

    13   IT REQUIRES EXAMINATION ON AT LEAST A PERIODIC SCALE, USUALLY
    14   AT LEAST TWICE A YEAR OR AT LEAST ONCE A YEAR FOR A THOROUGH

    15   INVESTIGATION TO MAKE SURE THAT IT ALL OPERATES AND THE

    16   FAILSAFES ARE THERE.
    17   Q.   I WAS GOING TO ASK YOU THEN TO TURN TO THE NEXT PAGE,

    18   STARTING ON SECTION B, WHICH LISTS ONE, TWO, THREE THINGS AS

    19   ANNUAL CREMATOR SERVICE, AND THE FIRST QUESTION IS SIMPLY

    20   THIS:   HAVE YOU HAD A CHANCE TO LOOK AND SEE WHAT THIS
    21   DOCUMENT SAYS?

    22   A.   YES.

    23   Q.   AND WOULD YOU AGREE THAT THE THINGS LISTED HERE FOR

    24   ANNUAL CREMATOR SERVICE ARE REQUIRED FOR THE OPERATION OF A
    25   CREMATORY UNIT SUCH AS THE ONE THAT WAS FOUND AT THE MARSH



                       CHARLES BREWER - DIRECT BY BARNETT      78




    1    CREMATORY?
    2    A.   ANNUAL, ANNUAL INSPECTION BY A PERSON OF KNOWLEDGE SHOULD

    3    -- YES, SHOULD ABSOLUTELY BE.
    4    Q.   AND IS THAT THE THING YOU DO AT YOUR CREMATORY AS WELL?
    5    A.   YES.

    6    Q.   LET ME ASK YOU TO TURN TO PAGE 35, AND IF WE COULD
    7    HIGHLIGHT SORT OF RIGHT HERE IN THE MIDDLE, OR NOT HIGHLIGHT

                                Page 70
                          Transcript.8.25.04
    8    BUT MAKE IT BIGGER. I WANT TO ASK YOU ABOUT A COUPLE OF
    9    THINGS IN HERE UNDER SECTION A, WHICH IS REMOVAL OF CREMATED
    10   REMAINS, AND IT SAYS:     BE SURE TO REMOVE ALL CREMATED REMAINS

    11   FROM THE CREMATION CHAMBER.     WOULD YOU AGREE THAT THAT IS
    12   REQUIRED BY THE STANDARD OF CARE IN OPERATING A CREMATORY?

    13   A.   YES.
    14   Q.   AND HAS BEEN SINCE 1988?
    15   A.   YES.

    16   Q.   IT SAYS FURTHER DOWN:     MOST METALLIC PARTICLES WILL BE
    17   REMOVED WITH THE PROVIDED HAND MAGNET.     IS THAT SOMETHING YOU

    18   DO AT YOUR FACILITY?

    19   A.   YES.
    20   Q.   IS THAT REQUIRED BY THE STANDARD OF CARE?

    21   A.   YES.

    22   Q.   LET ME ASK YOU TO TURN OVER TO PAGE 36.

    23               MR. JAMES:   YOUR HONOR, WE'VE GIVEN HER A LITTLE BIT
    24   OF LEEWAY.

    25               THE COURT:   I KNOW YOU ARE.



                        CHARLES BREWER - DIRECT BY BARNETT          79




    1                MR. JAMES:   I'M GOING TO MAKE THE OBJECTION BECAUSE
    2    SHE'S TESTIFYING TO THE CONTENT OF THIS DOCUMENT.    WE DON'T

    3    KNOW IF THE DOCUMENT RELATES TO TRI-STATE OR NOT.    MR. BREWER
    4    HAS ALREADY TESTIFIED AS TO THE STATE OF REPAIR, AND WE DON'T
    5    KNOW THAT THIS DOCUMENT IS EVEN REPRESENTATIVE OF THE STANDARD

    6    OF CARE.    AND THERE'S BEEN NO FOUNDATION ON THAT EITHER, YOUR
    7    HONOR.
    8                THE COURT:   ARE YOU OBJECTING TO HER QUESTION?

    9                MR. JAMES:   YES, YOUR HONOR, AND USE OF THE
    10   DOCUMENTS AND THE CONTENTS OF THE DOCUMENT.

                                  Page 71
                           Transcript.8.25.04
    11              THE COURT: I'LL LET HER USE THE DOCUMENT, AND I'LL
    12   LET HER ASK THE QUESTION.   THAT DOESN'T MEAN THE DOCUMENT'S
    13   ADMISSIBLE IN EVIDENCE, IF THAT'S WHAT'S BOTHERING YOU.

    14              MR. JAMES:   THAT IS EXACTLY WHAT'S BOTHERING ME,
    15   YOUR HONOR.    AND SHE'S REFERRING TO THE DOCUMENT AS IF IT WAS

    16   ADMITTED INTO EVIDENCE, AND IT'S NOT ADMITTED IN EVIDENCE.
    17              THE COURT:   WELL, IT'S NOT IN EVIDENCE YET.   I'LL
    18   LET HER ASK THE QUESTION.   MAYBE SHE CAN GET IT IN EVIDENCE.

    19   SHE CAN TRY.
    20              MR. JAMES:   NOW I'D ASK THE COURT NOT TO ALLOW HER

    21   TO SHOW THE DOCUMENT UNTIL IT HAS BEEN ADMITTED INTO EVIDENCE.

    22              THE COURT:   LADIES AND GENTLEMEN, THIS DOCUMENT IS
    23   NOT YET IN EVIDENCE.    I'M ALLOWING THE LAWYER TO USE IT, BUT

    24   PLEASE REMEMBER IT'S NOT YET IN EVIDENCE.

    25              GO AHEAD, MISS BARNETT.   IT'S A LITTLE EASIER FOR



                        CHARLES BREWER - DIRECT BY BARNETT         80




    1    HIM TO SEE AND EVERYBODY TO SEE IF IT'S UP THERE.
    2    Q.   ALL RIGHT.   I THINK WE WERE ON PAGE 36, AND THIS IS JUST

    3    ABOUT, JUST ABOUT THE END OF MY QUESTIONS.   B-1.   THE
    4    BEGINNING OF THAT SAYS:   ALWAYS BE SURE TO KEEP PROPER
    5    IDENTIFICATION WITH THE REMAINS AT ALL TIMES SO AS NO MISTAKE

    6    CAN BE MADE AS TO THE IDENTITY OF THE REMAINS.   AND WOULD YOU
    7    AGREE THAT THAT'S REQUIRED BY THE STANDARD OF CARE?
    8    A.   I THINK I'VE STATED THAT QUITE OBVIOUSLY THAT THAT IS A

    9    VERY IMPORTANT STANDARD OF CARE, IS PROPER IDENTIFICATION.
    10   Q.   ONE LAST QUESTION AS TO SPECIFICS OF THE DOCUMENT.        ON

    11   PAGE 37, THE NEXT PAGE OVER, IT'S TITLED RECORDS, FORMS, AND
    12   FILES.   IT STATES CREMATORY RECORDS.   A PERMANENT LEDGER

    13   SHOULD BE KEPT IN THE CREMATORY AREA WHICH LISTS THE NAME OF

                                 Page 72
                          Transcript.8.25.04
    14   THE DECEASED, ARRIVAL DATE OF THE DECEASED, THE FUNERAL HOME,
    15   THE DATE THE AUTHORIZATION IS GIVEN, THE NUMBER YOU ASSIGN TO
    16   THE CREMATION, THE FAMILY'S WISHES, ANY PERSONAL PROPERTY,

    17   WHAT TYPE OF URN OR CONTAINER IS TO BE USED, THE DATE AND TIME
    18   OF THE CREMATION, AND THE PERSON HANDLING THE CREMATION

    19   PROCESS AS WELL AS THE TYPE OF RETURN.     WOULD YOU AGREE THAT
    20   MAINTAINING THOSE TYPES OF RECORDS ARE REQUIRED BY THE
    21   STANDARD OF CARE?

    22   A.   YES.
    23   Q.   AND THOSE ARE THINGS THAT YOU KEEP RECORDS OF AT YOUR

    24   FACILITY?

    25   A.   YES.



                        CHARLES BREWER - DIRECT BY BARNETT        81




    1    Q.   NOW, YOU'VE HAD A CHANCE TO LOOK THROUGH THIS ENTIRE
    2    EXHIBIT 225; HAVE YOU NOT?

    3    A.   YES.
    4    Q.   AND IS IT YOUR OPINION, BASED ON YOUR EXPERIENCE WITH A

    5    LATER MODEL OF THE SAME PIECE OF EQUIPMENT THAT WAS FOUND AT

    6    THE MARSH CREMATORY, THAT THIS IS THE APPLICABLE OPERATOR AND
    7    OWNER MANUAL FOR THE CHAMBER?
    8    A.   YES, IT IS.

    9                MS. BARNETT:    YOUR HONOR, I WOULD ASK THAT IT BE
    10   ADMITTED AS EXHIBIT 225.

    11               THE COURT:   THERE'S GOING TO BE AN OBJECTION, AND
    12   I'LL NOT RULE -- I'LL NOT ADMIT IT TILL MR. JAMES OR

    13   MR. JENKINS GETS A CHANCE TO CROSS-EXAMINE HIM.
    14               MR. JAMES:   THANK YOU.
    15               THE COURT:   THAT'S WHAT YOU HAD IN MIND.

    16               MR. JAMES:   THAT'S WHAT I HAD IN MIND, YOUR HONOR,

                                    Page 73
                            Transcript.8.25.04
    17   YES.    THANK YOU, YOUR HONOR.
    18   Q.     ALL RIGHT, ALL RIGHT.   WE WERE TALKING ABOUT YOUR
    19   EXAMINATION OF THE CREMATION CHAMBER.     NOW, DO YOU HAVE

    20   EXPERIENCE INSPECTING CREMATORIES?
    21   A.     I INSPECT MY OWN PERIODICALLY FOR MY OWN WELL-BEING IF

    22   IT'S OPERATING PROPERLY, AND SO, YES, I DO HAVE.
    23   Q.     TELL THE JURY ABOUT YOUR OBSERVATIONS OF THE MARSH
    24   CREMATORY WHEN YOU SAW IT IN 2002.

    25   A.     IT WAS IN A BAD STATE OF REPAIR.   THERE WERE CRACKS IN



                         CHARLES BREWER - DIRECT BY BARNETT       82




    1    THE FLOOR; WHICH, THE HEAT CHAMBER IS UNDERNEATH THIS FLOOR.
    2    THE OVEN ITSELF IS A -- EXACTLY THAT, AN OVEN, AND THAT THERE

    3    WERE MAJOR CRACKS WITHIN THE FLOOR AND CEILING.      THE FLUID --
    4    THERE WERE BODY FLUIDS COMING FROM THE OVEN DOWN ONTO THE

    5    FLOOR AND ON THE FLOOR.

    6           THE BACK OF THE CREMATORY HAD BEEN REMOVED.   THAT'S WHERE
    7    MOST OF THE FAILSAFE DEVICES AND ALL ARE LOCATED.     THEY -- THE

    8    COVERS HAD BEEN REMOVED FROM THOSE DEVICES.     THE LIGHT, WHICH

    9    IS A POLLUTION CONTROL DEVICE ON THE STACK ITSELF, WAS STILL
    10   ON WHEN I WAS THERE, WHICH INDICATED TO ME THAT THERE WAS

    11   STILL POWER GOING TO THE UNIT.     THE STACK WHICH GOES UP
    12   THROUGH THE CEILING WHERE IT COMES OUT OF THE CREMATORY HAD

    13   CONSIDERABLE SIZE RUST HOLES THAT WERE VISIBLE WITH THE EYE,
    14   NAKED EYE.
    15   Q.     WHAT DO YOU MEAN BY CONSIDERABLE SIZE?

    16   A.     PROBABLY A HALF INCH, QUARTER TO HALF INCH OR BETTER,
    17   WHICH WOULD ALLOW FUMES TO COME BACK INTO THE ROOM WHERE THE
    18   CREMATION WAS TAKING PLACE, WHICH WOULD HAVE BEEN NOT VERY

    19   GOOD FOR THE OPERATOR.

                                  Page 74
                            Transcript.8.25.04
    20   Q.     DID YOU SEE ANYTHING ABOUT THE GAS LINE THAT SUPPLIED THE
    21   CHAMBER?
    22   A.     THE --

    23               MR. JAMES:   OBJECTION, YOUR HONOR, IN TERMS OF THE
    24   GAS LINES AND SUPPLY.     HE SAYS HE'S INSPECTED HIS OWN RETORT,

    25   BUT HE HAS NOT TESTIFIED AS TO INSPECTING ANY OTHER RETORT OR



                          CHARLES BREWER - DIRECT BY BARNETT      83



    1    TESTIFIED HAVING FOUNDATION THAT HE WOULD HAVE KNOWLEDGE ABOUT

    2    GAS LINES OR THEIR OPERATION.
    3               THE COURT:    I UNDERSTAND, BUT I'LL LET HIM TESTIFY,

    4    IF HE KNOWS, AS TO WHAT HE SAW AS TO THE GAS LINE.

    5               MR. JAMES:    OKAY, YOUR HONOR.
    6               THE COURT:    AND THAT WAS THE QUESTION; WAS IT NOT?

    7               MS. BARNETT:    I MEANT IT TO BE, FOR SURE.   I HOPE IT
    8    WAS.

    9    A.     THE GAS LINE FROM THE REGULATOR TO THE CREMATORY UNIT

    10   ITSELF IS A TWO-INCH LINE.     THE --
    11   Q.     IS THAT TRUE IN YOUR CREMATORY?

    12   A.     IN ALL CREMATORIES.

    13   Q.     ALL RIGHT.
    14   A.     THE GAS LINE TO THIS PARTICULAR CREMATORY HAD BEEN

    15   REDUCED FROM A TWO-INCH LINE --
    16              MR. JAMES:    YOUR HONOR, THAT WAS THE POINT OF MY
    17   OBJECTION.      YOU KNOW, THERE'S A LACK OF FOUNDATION AS TO

    18   WHETHER CREMATORIES HE'S INSPECTED IN TERMS TO DETERMINE WHAT
    19   THEIR GAS LINES ARE.     HE DID TESTIFY THAT HE INSPECTED HIS OWN
    20   CREMATORY, BUT HE'S NOT GIVEN ANY FOUNDATION, AND WE DON'T

    21   KNOW WHICH SIZE OF LINE'S APPROPRIATE OR INAPPROPRIATE.        AND

    22   HE'S SPECULATING, TOO, NOW WHETHER THE GAS LINE WAS SWITCHED,

                                   Page 75
                           Transcript.8.25.04
    23   YOUR HONOR.
    24               THE COURT:   I WILL SUSTAIN THE OBJECTION TO WHAT
    25   HE'S SAYING ABOUT THE GAS LINE HAVING BEEN MODIFIED.       HE CAN



                        CHARLES BREWER - DIRECT BY BARNETT          84



    1    STILL TESTIFY TO WHAT HE SAW.        WELL, I'LL ASK IT FOR YOU.

    2                YOU SAW THE GAS LINE RUNNING INTO THE CHAMBER?
    3                THE WITNESS:    YES, SIR.
    4                THE COURT:   WHAT SIZE WAS IT?

    5                THE WITNESS:    IT WAS -- FROM THE WALL COMING INTO
    6    THE CHAMBER, TO THE CHAMBER, WAS A TWO-INCH.       FROM THE WALL

    7    OUTSIDE, IT WAS A HALF INCH.
    8                THE COURT:   ALL RIGHT.

    9    Q.   AND AS JUST A MATTER OF WHAT YOU SAW, CAN YOU EXPLAIN HOW

    10   THAT HAPPENED?   WHAT ACCOMPLISHED, WHAT MOVED IT FROM A
    11   TWO-INCH TO A HALF INCH?

    12               MR. JAMES:   OBJECTION.     THAT'S CLEAR SPECULATION.

    13   LACK OF FOUNDATION, YOUR HONOR.

    14               MS. BARNETT:    WHAT HE SAW, WHAT HE SAW, YOUR HONOR.
    15               THE COURT:   WELL, HE CAN TESTIFY WHAT HE SAW.      I'LL

    16   SUSTAIN THE OBJECTION AS YOU ASKED THE QUESTION.       YOU ASKED
    17   HIM HOW IT HAPPENED.

    18   Q.   WELL, WHAT DID YOU SEE?
    19   A.   I SAW A PLACE IN THE WALL WHERE THE -- WHERE THE
    20   HALF-INCH -- THE TWO-INCH LINE HAD BEEN REDUCED DOWN BY

    21   REDUCERS, WHICH IS A PIECE OF EQUIPMENT THAT WOULD REDUCE THAT

    22   TWO-INCH LINE DOWN TO A HALF-INCH LINE WHERE IT WENT THROUGH
    23   THE WALL.   AND ON GOING OUTSIDE TO INSPECT IT, THERE WERE TWO

    24   TANKS OUTSIDE THAT WERE ATTACHED TO THOSE HALF-INCH LINES.
    25   Q.   LET ME HAND YOU EXHIBITS 42 AND 43.

                                    Page 76
                            Transcript.8.25.04


                         CHARLES BREWER - DIRECT BY BARNETT         85



    1                 MR. JAMES:   YOUR HONOR, ON THESE EXHIBITS, TILL A

    2    FOUNDATION HAS BEEN LAID, WE WOULD OBJECT TO THEM BEING SHOWN
    3    ON THE SCREEN.
    4                 THE COURT:   ALL RIGHT.   ASK YOUR FOLKS NOT TO SHOW

    5    THEM UNTIL --
    6                 MS. BARNETT:    ABSOLUTELY, YOUR HONOR.   I APOLOGIZE.

    7                 THE COURT:   THAT'S ALL RIGHT.
    8    Q.    DO YOU RECOGNIZE THESE PICTURES?

    9    A.    YES.

    10   Q.    WHAT ARE THEY PICTURES OF?
    11   A.    PICTURE OF THE CHAMBER, THE OVEN ITSELF.

    12   Q.    WHERE?

    13   A.    I'M SORRY?

    14   Q.    WHICH OVEN ITSELF, THE ONE AT TRI-STATE?
    15   A.    AT MARSH CREMATORY.

    16   Q.    IS THIS THE WAY THAT IT LOOKED TO YOU WHEN YOU INSPECTED

    17   IT IN --

    18   A.    YES, IT DID.
    19                MS. BARNETT:    YOUR HONOR, I'D ASK THAT THESE --
    20                THE COURT:   WHICH ONE ARE YOU TALKING ABOUT?

    21                THE WITNESS:    LET'S GO -- 43 I THINK'S THE ONE I'M

    22   LOOKING AT NOW, 43.
    23   Q.    I'M SORRY.   EXHIBIT 43, IS THAT -- WELL, LET'S START WITH

    24   42.   DID I FAIL TO GIVE YOU A 42?
    25   A.    I HAVE A 42 AND A 43.



                         CHARLES BREWER - DIRECT BY BARNETT         86



                                     Page 77
                            Transcript.8.25.04
    1    Q.   OKAY.    EXHIBIT 42 --

    2    A.   OKAY.
    3    Q.   -- IS THAT THE WAY THE MARSH CREMATORY CHAMBER LOOKED
    4    WHEN YOU SAW IT?

    5    A.   YES.
    6                MS. BARNETT:    YOUR HONOR, I'D ASK THAT EXHIBIT 42 BE
    7    MOVED INTO EVIDENCE.

    8                THE COURT:   OBJECTION.

    9                MR. JAMES:   WE DON'T KNOW WHEN THE PHOTOGRAPHS WERE
    10   TAKEN, YOUR HONOR, AT WHAT POINT IN TIME, WHETHER THEY WERE
    11   TAKEN DURING HIS INSPECTION OF THE RETORT, SO WE OBJECT.

    12               THE COURT:   WELL, HOW LONG WERE YOU THERE AT

    13   TRI-STATE CREMATORY?
    14               THE WITNESS:    I WAS AT TRI-STATE CREMATORY A LITTLE

    15   OVER TWO WEEKS.

    16               THE COURT:   DOES THIS SHOW WHAT YOU SAW WHEN YOU

    17   WERE THERE?

    18               THE WITNESS:    YES, SIR, IT IS.   THIS IS THE -- THIS
    19   IS THE CHAMBER THE WEDNESDAY, THE DAY THAT I INSPECTED IT.

    20               THE COURT:   ALL RIGHT.    YOU DIDN'T TAKE THE PICTURES

    21   THEN?
    22               THE WITNESS:    NO, SIR, I DID NOT.
    23               THE COURT:   THEY'RE ADMITTED.

    24               MS. BARNETT:    THANK YOU.

    25               THE WITNESS:    WE'RE NOT ALLOWED TO.



                        CHARLES BREWER - DIRECT BY BARNETT         87



    1                MS. BARNETT:    42 AND 43?
    2                THE COURT:   YES, MA'AM.

    3                MS. BARNETT:     THANK YOU VERY MUCH.
                                    Page 78
                            Transcript.8.25.04
    4                 ALL RIGHT.   WELL, I'D ASK THAT WE PUT 42 UP ON THE

    5    SCREEN NOW, PLEASE.
    6    A.    NOW, IF I MAY EXPLAIN WHY I KNOW THAT THIS IS THE
    7    CREMATORY AT MARSH CREMATORY AS OPPOSED TO MINE, IF YOU'LL

    8    NOTICE, ON THE BOTTOM OF THIS PICTURE IS A T-SHAPED HANDLE.
    9    THIS DOOR IS COUNTERWEIGHED AND BALANCED, AND THE DOOR COMES
    10   UP.   ON OUR CREMATORY, A LATER MODEL, IS:    THE DOOR IS

    11   ELECTRICALLY OPERATED, AND THE DOOR GOES UP INSTEAD OF DOWN.

    12   Q.    WHAT ABOUT THE COLOR?
    13   A.    YOU NOTICE THE COLOR IS -- PARTICULARLY ON THE RIGHT AND
    14   LEFT SIDE AND BOTTOM IS A VERY DARK COLOR.     THIS INDICATES

    15   THAT IT WAS NOT RUNNING A PROPER TEMPERATURE.

    16   Q.    WOULD YOU EXPECT TO SEE THIS COLOR IN A PROPERLY RUN
    17   CREMATORY?

    18   A.    NO.

    19   Q.    WHEN YOU LOOKED INSIDE THE CREMATORY CHAMBER, DID YOU SEE

    20   HUMAN REMAINS IN THERE?

    21   A.    YES.
    22   Q.    CAN YOU DESCRIBE WHAT KINDS OF HUMAN REMAINS YOU SAW?

    23   A.    IF YOU WILL NOTICE TO THE BOTTOM AND FRONT OF THAT

    24   MACHINE -- CAN YOU -- CAN YOU PUT UP EXHIBIT 43?     THAT'S MUCH
    25   CLEARER ON THE INTERIOR.



                         CHARLES BREWER - DIRECT BY BARNETT       88




    1    Q.    YES.
    2    A.    OKAY.   AS YOU'LL NOTICE, IN THE BOTTOM IS A --
    3                 MR. JAMES:   YOUR HONOR, AT THIS POINT WE'LL OBJECT

    4    BECAUSE I THINK SHE'S ASKING HIM TO IDENTIFY HUMAN REMAINS.        I
    5    DON'T THINK HE CAN QUALIFY AS TO WHETHER HE CAN TESTIFY ON
    6    HUMAN REMAINS, LIKE BONES AND THINGS LIKE THAT, YOUR HONOR.
                               Page 79
                           Transcript.8.25.04
    7                THE WITNESS:   I'M NOT GOING TO DO THAT.

    8                THE COURT:   YOU GOING TO TELL US WHAT YOU SAW?
    9                THE WITNESS:   I'M GOING TO TELL YOU WHAT CONDITION
    10   THE FLOOR WAS IN.

    11               THE COURT:   ALL RIGHT, GO AHEAD THEN.
    12               MR. JAMES:   THAT'S FINE.
    13   A.   THE -- IF YOU'LL NOTICE, THE FLOOR SHOULD BE A SMOOTH,

    14   CONCRETE TYPE OF MATERIAL FOR THE REFRACTORY ITSELF.       IT IS

    15   NOT, AS YOU CAN NOTICE THAT THERE ARE DARK SPOTS WITHIN THE
    16   FLOOR AND ALSO THAT IT IS BREAKING UP.    THOSE ARE ALL
    17   INDICATIONS THAT IT IS IN NEED OF MAINTENANCE.

    18   Q.   DO YOU HAVE EXPERIENCE SEEING HUMAN REMAINS?

    19   A.   I'M SORRY?
    20   Q.   IN YOUR YEARS AS A FUNERAL DIRECTOR OR CREMATORY

    21   OPERATOR, HAVE YOU SEEN HUMAN REMAINS?

    22   A.   YES.

    23   Q.   AND HAVE YOU SEEN CREMATED HUMAN REMAINS?

    24   A.   ABSOLUTELY, YES.
    25   Q.   HAVE YOU REMOVED YOURSELF PERSONALLY CREMATED REMAINS



                        CHARLES BREWER - DIRECT BY BARNETT          89




    1    FROM A CREMATORY?
    2    A.   YES.

    3    Q.   AND BASED ON YOUR EXPERIENCE AND YOUR TRAINING AND
    4    KNOWLEDGE, DID YOU SEE HUMAN REMAINS INSIDE THIS CREMATORY

    5    CHAMBER --
    6    A.   YES.
    7    Q.   -- IN NOBLE, GEORGIA?

    8                MR. JAMES:   WE'LL OBJECT, YOUR HONOR.   THE
    9    DISCLOSURES DISCLOSED THIS WITNESS AS AN EXPERT IN THE
                               Page 80
                            Transcript.8.25.04
    10   STANDARD OF CARE IN THE OPERATION OF CREMATORIES, AND SHE'S

    11   GETTING WAY AFIELD OF THAT DISCLOSURE AT THIS POINT, YOUR
    12   HONOR.
    13                THE COURT:   I'LL SUSTAIN THE OBJECTION.

    14                MS. BARNETT:   ALL RIGHT, YOUR HONOR.   THE DISCLOSURE
    15   SAID HE WOULD DISCUSS HIS OBSERVATIONS OUT AT THE MARSH
    16   CREMATORY IN NOBLE, GEORGIA, WHICH IS ALL I WAS ASKING HIM TO

    17   DO.

    18                THE COURT:   WELL, I STILL SUSTAIN THE OBJECTION, BUT
    19   I'LL ASK HIM WHAT HE COULD TESTIFY -- I'LL ASK HIM A QUESTION.
    20                WAS THERE ANY SUBSTANCE INSIDE THE CREMATORY

    21   CHAMBER?

    22                THE WITNESS:   THE SUBSTANCE.    YOU MEAN BODY FLUID OR
    23   FLUIDS?

    24                THE COURT:   NO, JUST SOMETHING IN THERE OTHER

    25   THAN --



                         CHARLES BREWER - DIRECT BY BARNETT         90




    1                 THE WITNESS:   THE SUBSTANCE WAS -- YES.   THERE WAS
    2    -- THERE WERE PIECES OF BONE MATERIAL, BUT THEN THAT WAS ON

    3    THE FLOOR IN SEVERAL DIFFERENT LOCATIONS.
    4                 THE COURT:   ALL RIGHT.

    5                 THE WITNESS:   I DID NOT GO INSIDE THE RETORT OR THE
    6    HEATING PART AT ALL.
    7                 THE COURT:   THAT'S ALL RIGHT.

    8    Q.    AND YOU SAID SOMETHING EARLIER I THINK ABOUT BODILY
    9    FLUIDS ON THE FLOOR.
    10   A.    YEAH.

    11   Q.    OF THE ACTUAL BUILDING?
    12   A.    YES.    THAT WAS COMING OUT OF THE SIDE OF THE CREMATORY
                                  Page 81
                           Transcript.8.25.04
    13   ITSELF, RUNNING DOWN THE SIDE AND ACROSS THE FLOOR.

    14   Q.   IS THE PRESENCE --
    15             THE COURT:    WE BETTER STOP FOR LUNCH, I THINK.
    16             THE WITNESS:    YOUR HONOR?

    17             THE COURT:    YES, SIR.
    18             THE WITNESS:    IF I MAY.
    19             THE COURT:    YES, SIR.

    20             THE WITNESS:    I AM CURRENTLY ON DMORT ASSIGNMENT IN

    21   SOUTH FLORIDA.    I HAVE BEEN RECALLED, AND IT'S IMPERATIVE THAT
    22   I DRIVE BACK TONIGHT, WHICH IS ABOUT A 10-HOUR DRIVE.      IF IT'S
    23   AT ALL POSSIBLE, I'D LIKE TO FINISH SO THAT I COULD BE

    24   RELEASED AND START MY JOURNEY BACK.

    25             THE COURT:    WELL, WE'D LIKE TO FINISH THE TESTIMONY.



                       CHARLES BREWER - DIRECT BY BARNETT          91




    1             HOW MUCH LONGER IS YOUR --

    2             MS. BARNETT:     IT WAS MY LAST QUESTION.
    3             THE COURT:    ALL RIGHT.     WELL, ALL RIGHT.   AND THEN

    4    THEY'LL HAVE CROSS.    WE NEED YOU TO GET BACK TO FLORIDA, SO

    5    WE'LL PROCEED FOR AWHILE.
    6             THE WITNESS:     THANK YOU, SIR.   I APPRECIATE THAT.

    7             MS. BARNETT:     THANK YOU.
    8    Q.   MY LAST QUESTION WAS GOING TO BE WHETHER THE PRESENCE OF
    9    BODILY FLUIDS IS CONSISTENT WITH THE OPERATION OF A CREMATORY.

    10   A.   NO, IT IS NOT.
    11   Q.   THAT'S ALL THE QUESTIONS I HAVE.     THANK YOU VERY MUCH,
    12   MR. BREWER.

    13   A.   THANK YOU.

    14            THE COURT:    YOU GENTLEMEN READY --
    15            MR. JAMES:    I'M READY, YOUR HONOR, IF THE COURT'S
                                Page 82
                          Transcript.8.25.04
    16   READY.

    17              THE COURT:   -- TO HANDLE YOUR CROSS, MR. JAMES?
    18              THE WITNESS:    THANK YOU, YOUR HONOR.
    19              THE COURT:   IT MAY BE SOME JUROR WOULD LIKE TO HAVE

    20   A BREAK.   MAYBE WE OUGHT TO GIVE THE JURY A FIVE-MINUTE BREAK
    21   AND THEN HAVE CROSS-EXAMINATION.
    22              THE WITNESS:    THANK YOU, YOUR HONOR.

    23              MR. JAMES:   SURE, YOUR HONOR.   OF COURSE, YES.

    24              THE COURT:   SOME OF THE LAWYERS MIGHT NEED TO BE
    25   MORE COMFORTABLE.     LET'S TAKE A SHORT BREAK, AND THEN WE'LL



                         CHARLES BREWER - CROSS BY JAMES         92




    1    TAKE CROSS-EXAMINATION BEFORE WE RECESS.

    2               IF YOU'LL SHOW THEM TO THE ROOM.
    3                                  (RECESS)

    4               THE COURT:   LADIES AND GENTLEMEN OF THE JURY, I'M

    5    MINDFUL THAT MOST NORMAL PEOPLE EAT AROUND THE MIDDLE OF THE
    6    DAY.   IS IT GOING TO CAUSE ANY OF YOU ANY PHYSICAL PROBLEM IF

    7    WE GO AHEAD AND TAKE THE CROSS-EXAMINATION ON THIS WITNESS
    8    BEFORE WE STOP FOR LUNCH?
    9               A JUROR:   JUST SOME NOISE, STOMACH.

    10              THE WITNESS:    I'M GETTING IT, TOO.
    11              THE COURT:   ALL RIGHT.   WELL, IF YOU'LL PUT UP WITH
    12   THAT, WE'LL PROCEED WITH IT.

    13              MR. JAMES:   I'LL BE HAPPY TO PUT UP WITH IT, TOO,

    14   YOUR HONOR.   AND I PROMISE I WON'T TAKE TOO LONG, YOUR HONOR.
    15              THE COURT:   ALL RIGHT.   GO AHEAD, MR. JAMES.

    16              MR. JAMES:   THANK YOU, YOUR HONOR.

    17                 CROSS-EXAMINATION OF CHARLES BREWER
    18   BY MR. JAMES:
                                   Page 83
                            Transcript.8.25.04
    19   Q.   MR. BREWER, AS I UNDERSTAND IT, YOU ARE A LICENSED

    20   FUNERAL DIRECTOR.
    21   A.   AND EMBALMER, YES.
    22   Q.   IN THE STATE OF FLORIDA, IS THAT CORRECT?

    23   A.   THAT'S CORRECT.
    24   Q.   YOU'RE NOT A LICENSED FUNERAL DIRECTOR IN THE STATE OF
    25   GEORGIA, ARE YOU?



                          CHARLES BREWER - CROSS BY JAMES        93




    1    A.   I AM NOT.

    2    Q.   ALL RIGHT.    THAT LICENSE DIDN'T OCCUR IN 1982, DID IT?
    3    YOU WEREN'T LICENSED AS A FUNERAL DIRECTOR IN THE STATE --

    4    A.   I WAS LICENSED IN 1963.

    5    Q.   AND IN THE STATE OF GEORGIA?
    6    A.   I HAVE BEEN LICENSED SINCE 1963 IN THE STATE OF FLORIDA.

    7    Q.   AND WHAT YEAR DID YOU GET LICENSED IN THE STATE OF
    8    GEORGIA?

    9    A.   I HAVE NOT BEEN.    I'M NOT LICENSED IN GEORGIA.

    10   Q.   ALL RIGHT.    AND YOU'RE NOT LICENSED IN THE STATE OF
    11   TENNESSEE AS A FUNERAL DIRECTOR, ARE YOU?

    12   A.   NO.
    13   Q.   AND YOU'RE NOT LICENSED IN THE STATE OF ALABAMA AS A
    14   FUNERAL DIRECTOR; ARE YOU, MR. BREWER?

    15   A.   NO, I AM NOT.
    16   Q.   NOW, AS I UNDERSTAND YOUR TESTIMONY, PRIOR TO 1994 YOU
    17   PROVIDED CREMATIONS THROUGH A COOPERATIVE EFFORT OR YOU

    18   COOPERATED A CREMATORY.
    19   A.   SINCE WHEN?    I'M SORRY.
    20   Q.   BEFORE 1994.

    21   A.   YES.
                                 Page 84
                             Transcript.8.25.04
    22   Q.     AND AFTER 1994, YOU BOUGHT YOUR OWN RETORT AND STARTED

    23   YOUR OWN CREMATORY OPERATIONS?
    24   A.     THAT'S CORRECT.
    25   Q.     AND THOSE CREMATORY OPERATIONS ARE IN THE STATE OF



                          CHARLES BREWER - CROSS BY JAMES          94



    1    FLORIDA; AREN'T THEY, SIR?

    2    A.     YES.
    3    Q.     YOU'VE NEVER OPERATED A CREMATORY IN NOBLE, GEORGIA, HAVE

    4    YOU?

    5    A.     NO.
    6    Q.     PRIOR TO FEBRUARY OF 2002, YOU'VE NEVER BEEN TO NOBLE,

    7    GEORGIA, HAVE YOU?
    8    A.     ACTUALLY, I HAVE.

    9    Q.     ALL RIGHT.   YOU GOT ME ON THAT ONE, MR. BREWER.

    10   A.     WELL, MY FAMILY ARE FROM THIS AREA, AND WE'VE BEEN HERE
    11   FOR OVER 100 YEARS.      I'M THE ONLY ONE THAT MOVED TO FLORIDA.

    12   Q.     ALL RIGHT.   WELL, YOU WOULD DESCRIBE NOBLE, GEORGIA --

    13   A.     I LIVED IN LAFAYETTE FOR QUITE AWHILE.

    14   Q.     YOU'D DESCRIBE THE NOBLE, GEORGIA, AREA AS BEING A RURAL
    15   AREA THEN; WOULDN'T YOU, MR. BREWER?

    16   A.     YES.

    17   Q.     OKAY.   IT'S A SMALL COMMUNITY, ISN'T IT?
    18   A.     YES.
    19   Q.     IT'S IN THE COUNTRY, ISN'T IT?

    20   A.     YES.
    21   Q.     IT'S NOT LIKE ATLANTA, GEORGIA, WHICH IS A VERY URBAN
    22   AREA, IS IT?

    23   A.     NO.
    24   Q.     OR LIKE ORLANDO, FLORIDA.
                                 Page 85
                             Transcript.8.25.04
    25   A.     NO.



                         CHARLES BREWER - CROSS BY JAMES         95



    1    Q.     ATLANTA, NASHVILLE, MUCH DIFFERENT PLACES, AREN'T THEY?

    2    A.     YES.
    3    Q.     AND LAFAYETTE IS A SMALL TOWN COMMUNITY, PROBABLY ONE OF

    4    THOSE COMMUNITIES WHERE EVERYBODY KNOWS EVERYBODY ELSE JUST
    5    ABOUT; ISN'T THAT TRUE, MR. BREWER?
    6    A.     YES.

    7    Q.     AND, MR. BREWER, IN PREPARING FOR YOUR TESTIMONY, YOU
    8    DIDN'T REVIEW MR. RAY MARSH'S BUSINESS RECORDS RELATED TO

    9    TRI-STATE CREMATORY, DID YOU?

    10   A.     WASN'T MY RESPONSIBILITY.
    11   Q.     YOU DIDN'T REVIEW ANY DOCUMENTS SHOWING HOW HE IDENTIFIED

    12   BODIES OR HAD BODIES IDENTIFIED FOR HIM WHEN HE RECEIVED THEM

    13   FROM THE FUNERAL HOME, DID YOU?

    14   A.     THAT WASN'T WHAT I WAS ASKED TO DO.
    15   Q.     YOU DIDN'T REVIEW HIS PROCESS OF MAKING SURE THAT BODIES

    16   WERE PROPERLY IDENTIFIED WHEN THEY WERE CREMATED IN THIS

    17   CREMATORY, DID YOU?

    18   A.     ONLY THE BODIES THAT I SAW.
    19   Q.     ALL RIGHT.   BUT YOU DIDN'T DO ANY FOR MR. RAY MARSH, DID

    20   YOU?
    21   A.     NO.
    22   Q.     YOU DIDN'T EXAMINE ANY RECORDS SHOWING HOW MANY BODIES

    23   MR. MARSH WOULD CREMATE WHEN HE OPERATED HIS RETORT ON A
    24   WEEKLY OR MONTHLY BASIS, DID YOU?
    25   A.     NO.



                         CHARLES BREWER - CROSS BY JAMES         96
                                Page 86
                             Transcript.8.25.04



    1    Q.     YOU'RE NOT FAMILIAR WITH MR. MARSH'S OPERATION OF HIS

    2    CREMATORY OR HOW HE MANAGED HIS CREMATORY, ARE YOU?
    3    A.     NO.

    4    Q.     YOU HAVEN'T RECEIVED AND YOU HAVEN'T REVIEWED ANY OF
    5    MR. BRENT MARSH'S -- WHEN HE TOOK OVER THE OPERATION OF THE
    6    CREMATORY, HIS BUSINESS RECORDS, HAVE YOU?

    7    A.     NO.
    8    Q.     YOU DON'T KNOW WHAT PROCESS HE USED TO IDENTIFY BODIES OR

    9    TO RECEIVE IDENTIFICATION PAPERWORK FROM FUNERAL HOMES, DO

    10   YOU?
    11   A.     NO, I DO NOT.

    12                 MR. JAMES:   ALL RIGHT.   PLEASE, EXHIBIT 252, IF YOU

    13   DON'T MIND.

    14   Q.     I THINK YOU'RE FAMILIAR WITH PLAINTIFF'S EXHIBIT 252.
    15   AND THIS IS FROM BROOKSVILLE CREMATORY, WHICH I BELIEVE YOU

    16   TESTIFIED WAS YOUR CREMATORY.

    17   A.     YES.

    18   Q.     NOW, BROOKSVILLE CREMATORY IS OPERATED ALONG WITH YOUR
    19   FUNERAL HOME; IS THAT CORRECT?

    20   A.     YES.

    21   Q.     AND I MAY USE THE WRONG TERM, MR. BREWER, BUT I WOULD
    22   CALL IT AN IN-HOUSE CREMATORY WHERE YOUR FUNERAL HOME OPERATES

    23   THAT CREMATORY.
    24   A.     YES.
    25   Q.     ARE THE ONLY CREMATIONS AT BROOKSVILLE CREMATORY



                           CHARLES BREWER - CROSS BY JAMES          97




    1    PERFORMED FROM YOUR FUNERAL HOME, OR DO YOU DO WORK FOR OTHER

                                    Page 87
                           Transcript.8.25.04
    2    FUNERAL HOMES?
    3    A.   I DO WORK FOR OTHER FUNERAL HOMES.
    4    Q.   ALL RIGHT.    AND THAT CREMATORY HAS BEEN OPERATED SINCE

    5    1994?
    6    A.   YES.

    7    Q.   THIS FORM, IT LOOKS LIKE IT'S A FORM THAT YOU PREPARED;
    8    IS IT NOT?
    9    A.   YES.

    10   Q.   AND IT'S A FORM YOU PREPARED BASED UPON HOW YOU OPERATE
    11   YOUR BUSINESS?

    12   A.   I OPERATE A STANDARD -- THAT FORM IS ON THE STANDARD OF

    13   CARE THAT I OPERATE WITH, YES.
    14   Q.   ALL RIGHT.    AND THIS FORM REFLECTS WHAT YOU BELIEVE THE

    15   STANDARD OF CARE TO BE FOR THE OPERATION OF YOUR CREMATORY; IS

    16   THAT CORRECT?

    17   A.   THAT'S CORRECT.
    18               MR. JAMES:   ALL RIGHT.   IF YOU'D GO TO THE CREMATION

    19   AUTHORIZATION, PLEASE.      IT'S THE THIRD PAGE ON 252.

    20               THE OPERATOR:   I'M SORRY.

    21               MR. JAMES:   THAT'S OKAY.
    22   Q.   NOW, THIS IS A CREMATION AUTHORIZATION FORM THAT YOU USE

    23   IN THE OPERATION OF YOUR CREMATORY; IS THAT CORRECT?

    24   A.   YES.
    25   Q.   AND I BELIEVE YOU TESTIFIED THAT THIS CREMATION



                          CHARLES BREWER - CROSS BY JAMES          98




    1    AUTHORIZATION FORM COMPLIED WITH THE STANDARD OF CARE.
    2    A.   YES.

    3                MR. JAMES:   ALL RIGHT.   NOW, IF WE COULD GO TO THE
    4    TOP PARAGRAPH, CAN YOU BLOW THAT UP, IF YOU DON'T MIND, WHERE

                                  Page 88
                          Transcript.8.25.04
    5    IT SAYS "THE UNDERSIGNED HEREBY REQUESTS AND AUTHORIZES"?
    6    Q.   AT THE TOP OF THE FORM, THE CREMATION AUTHORIZATION
    7    STATES THAT THE UNDERSIGNED HEREBY REQUESTS AND AUTHORIZES

    8    FUNERAL HOME AND CREMATORY, IN ACCORDANCE WITH AND SUBJECT TO
    9    ITS RULES AND REGULATIONS, AS WELL AS THOSE OF THE STATE OF

    10   FLORIDA, TO CREMATE THE REMAINS OF.   THAT'S AN ACCURATE
    11   READING; AM I CORRECT?
    12   A.   YES.

    13   Q.   THIS FORM IS DONE TO COMPLY WITH THE LAWS OF THE STATE OF
    14   FLORIDA; IS IT NOT, SIR?

    15   A.   YES.

    16   Q.   IN PREPARING TO TESTIFY TODAY, HAVE YOU REVIEWED A
    17   CREMATION AUTHORIZATION FORM FROM THE STATE OF GEORGIA, FROM

    18   ANY FUNERAL HOME?

    19   A.   ACTUALLY, I HAVE BECAUSE I'VE DONE CREMATIONS UP HERE BY

    20   FRIENDS THAT ARE -- HAVE PASSED AWAY UP HERE AND REQUESTED
    21   CREMATION.

    22   Q.   HAVE YOU DONE THEM FOR TENNESSEE?   HAVE YOU REVIEWED

    23   CREMATION --

    24   A.   NO.
    25   Q.   YOU'RE NOT FAMILIAR WITH WHAT TENNESSEE LAW REQUIRES THEN



                        CHARLES BREWER - CROSS BY JAMES          99




    1    IN TERMS OF A CREMATION AUTHORIZATION FORM THEN; ARE YOU, SIR?
    2    A.   NO.

    3    Q.   AND YOU DO NOT KNOW WHAT THE CONTENTS OF A CREMATION
    4    AUTHORIZATION FORM FROM, LET'S SAY, BUCKNER-RUSH IN BRADLEY
    5    COUNTY, TENNESSEE, WOULD CONTAIN; DO YOU, SIR?

    6    A.   NO.
    7    Q.   YOU HAVE NOT BEEN ASKED TO REVIEW THAT CREMATION

                                  Page 89
                          Transcript.8.25.04
    8    AUTHORIZATION FORM, HAVE YOU?
    9    A.     NO.
    10   Q.     YOU DON'T KNOW IF A CREMATION AUTHORIZATION FORM IN THE

    11   STATE OF TENNESSEE CONTAINS ANY INFORMATION ABOUT COMMINGLING,
    12   DO YOU?

    13   A.     NO.
    14   Q.     YOU DON'T KNOW IF ANY CREMATION AUTHORIZATION FORM
    15   PRODUCED BY A COMPANY SUCH AS BUCKNER-RUSH FUNERAL HOMES

    16   CONTAINS ANY INFORMATION ABOUT COMMINGLING OF CREMAINS, DO
    17   YOU?

    18   A.     NO.

    19   Q.     YOU HAVE NOT BEEN PROVIDED THAT INFORMATION; HAVE YOU,
    20   MR. BREWER?

    21   A.     NO.

    22   Q.     YOU DO NOT KNOW WHAT THE REQUIREMENTS ARE TO BECOME A

    23   LICENSED FUNERAL HOME DIRECTOR IN THE STATE OF TENNESSEE; DO
    24   YOU, SIR?

    25   A.     NO.



                          CHARLES BREWER - CROSS BY JAMES        100




    1    Q.     YOU DON'T KNOW WHAT THE REQUIREMENTS ARE TO BECOME A
    2    LICENSED FUNERAL HOME DIRECTOR IN THE STATE OF GEORGIA; DO

    3    YOU, SIR?
    4    A.     NO, BUT I'M GOING TO HAVE TO CORRECT YOU ON ONE POINT.
    5    AS LONG AS I'M DEPLOYED AS A FEDERAL AGENT, MY LICENSES ARE

    6    GOOD ANY PLACE IN THE NATION.
    7    Q.     THAT'S NOT MY POINT, SIR.   I'M ASKING YOU IF YOU KNOW
    8    WHAT THE REQUIREMENTS OF --

    9    A.     NO, I DO NOT.
    10   Q.     OKAY.   YOU DO NOT KNOW WHAT FUNERAL HOME PRACTICES ARE IN

                                  Page 90
                          Transcript.8.25.04
    11   THE STATE OF TENNESSEE IN TERMS OF THE CONTENTS FOR THE
    12   CREMATION AND DISPOSAL AUTHORIZATION FORMS THAT THEY USE IN
    13   THE STATE OF TENNESSEE, DO YOU?

    14   A.   NO, I DO NOT.
    15   Q.   YOU DO NOT KNOW WHAT THE PRACTICES AND PROCEDURES ARE OF

    16   FUNERAL HOMES IN THE STATE OF GEORGIA AS FAR AS THEIR
    17   CREMATION AND DISPOSAL AUTHORIZATIONS ARE, DO YOU?
    18   A.   NO, I DO NOT.

    19   Q.   YOU TESTIFIED THAT YOU WERE FAMILIAR WITH CANA.
    20   A.   RIGHT.

    21   Q.   AND I BELIEVE ON DIRECT EXAMINATION YOU TESTIFIED THAT

    22   CANA WAS AN ORGANIZATION THAT GAVE INFORMATION FOR THE PROPER
    23   OPERATION OF A RETORT OR A CREMATORY.    IS THAT CORRECT?

    24   A.   CREMATION ASSOCIATION OF NORTH AMERICA, YES.

    25   Q.   AND THE CREMATION ASSOCIATION OF NORTH AMERICA, BASED



                         CHARLES BREWER - CROSS BY JAMES          101




    1    UPON YOUR TESTIMONY, WAS SUCH THAT YOU BELIEVE IT REPRESENTED
    2    THAT NATIONAL STANDARD OF CARE THAT YOU'VE BEEN TESTIFYING TO?

    3    A.   THAT'S CORRECT.
    4    Q.   ALL RIGHT.   AND I TAKE IT, MR. BREWER -- AND I DON'T KNOW
    5    IF YOU'VE BEEN PROVIDED THIS DOCUMENT, BUT IT WAS EXHIBIT 28

    6    TO HELEN TAYLOR'S DEPOSITION PROVIDED BY THE PLAINTIFFS.
    7                MR. JAMES:   AND IF I MAY, YOUR HONOR, I'D LIKE TO
    8    SHOW HIM.

    9                THE COURT:   CERTAINLY.
    10   Q.   AND WHAT I'M GOING TO DO, MR. BREWER, IF THE JUDGE WILL

    11   ALLOW ME TO APPROACH -- IF YOU DON'T MIND, YOUR HONOR.
    12               THE COURT:   OH, YES, GO AHEAD.   Y'ALL DON'T HAVE TO

    13   ASK TO APPROACH WITNESSES.

                                  Page 91
                            Transcript.8.25.04
    14               MR. JAMES: THANK YOU, YOUR HONOR.
    15   Q.   ASK YOU IF YOU'LL LOOK AT THOSE RECOMMENDED PROCEDURES,
    16   MR. BREWER.

    17               THE COURT:   DOES THAT HAVE AN EXHIBIT NUMBER?
    18               MR. JAMES:   I DON'T THINK WE HAVE ASSIGNED ONE, YOUR

    19   HONOR, BECAUSE IT JUST OCCURRED IN A DEPOSITION.
    20               THE WITNESS:    93.
    21               MR. JAMES:   IT'S 28 TO MISS TAYLOR'S DEPOSITION

    22   TAKEN FOR EVIDENCE, YOUR HONOR.
    23               THE COURT:   ALL RIGHT, THAT'S FINE.   THANK YOU.

    24   Q.   ARE YOU FINISHED?

    25   A.   ASK YOUR QUESTIONS, AND I'LL FIGURE OUT WHERE YOU'RE



                          CHARLES BREWER - CROSS BY JAMES         102




    1    TALKING ABOUT.
    2    Q.   WELL, I WAS ASKING IF YOU WERE FINISHED REVIEWING THE

    3    FORM, MR. BREWER.
    4    A.   OKAY.

    5    Q.   MR. BREWER, YOU'RE FAMILIAR WITH THE RECOMMENDED

    6    PROCEDURES FOR HANDLING DEAD HUMAN BODIES BY AN AUTHORIZED
    7    CREMATORY AUTHORITY, AREN'T YOU?
    8    A.   YES.

    9    Q.   IN FACT, MR. BREWER, THESE ARE SOME OF THE PROCEDURES
    10   THAT YOU WOULD USE IN THE OPERATION OF YOUR CREMATORY,

    11   WOULDN'T IT?
    12   A.   YES.

    13   Q.   AND THESE ARE PROCEDURES THAT YOU WOULD RECOMMEND THAT
    14   WOULD BE FOLLOWED; ARE THEY NOT, MR. BREWER?
    15   A.   YES.

    16   Q.   AND IF A CREMATORY OPERATOR FOLLOWED THESE PROCEDURES,

                                    Page 92
                          Transcript.8.25.04
    17   THEY WOULD BE WITHIN THE STANDARD OF CARE; WOULD THEY NOT,
    18   SIR?
    19   A.     YES.

    20                 MR. JAMES:   OKAY.   PAGE 2, PLEASE.   I THINK IT'S
    21   PARAGRAPH 2.1.      IF YOU'LL BLOW IT UP, PLEASE.

    22   Q.     SECTION 2 DEALS WITH THE REMOVAL AND IDENTIFICATION OF
    23   HUMAN REMAINS; DOES IT NOT, MR. BREWER?
    24   A.     YES.

    25   Q.     AND SECTION 2.1 READS, SIR:     IMMEDIATELY UPON TAKING



                           CHARLES BREWER - CROSS BY JAMES           103




    1    CUSTODY OF HUMAN REMAINS, A CREMATORY AUTHORITY SHALL VERIFY
    2    THAT THE HUMAN REMAINS BEAR A MEANS OF IDENTIFICATION ATTACHED

    3    TO.    A CREMATORY AUTHORITY SHALL NOT ACCEPT UNIDENTIFIED HUMAN
    4    REMAINS.      IF A CREMATORY OPERATED IN COMPLIANCE WITH THAT

    5    PARAGRAPH, THEY WOULD BE OPERATING WITHIN THE STANDARD OF

    6    CARE; WOULD THEY NOT, SIR?
    7    A.     YES.

    8    Q.     THAT PARAGRAPH DOES NOT REQUIRE, DOES IT, MR. BREWER,

    9    THAT A METAL TAG BE USED TO IDENTIFY THE HUMAN CREMAINS, DOES
    10   IT?

    11   A.     NO.
    12   Q.     IN FACT, THE STANDARD OF CARE DOES NOT REQUIRE A METAL

    13   TAG TO BE USED; DOES IT NOT?
    14   A.     NO.
    15   Q.     IN FACT, ANY ACCEPTABLE FORM OF IDENTIFICATION AND

    16   RECORDKEEPING IN COMPLIANCE WITH PARAGRAPH 2.1 WOULD BE WITHIN
    17   THE STANDARD OF CARE; WOULD IT NOT, MR. BREWER?
    18   A.     YES.

    19                 MR. JAMES:   I HATE TO IMPOSE UPON YOU AGAIN, BUT I

                                    Page 93
                           Transcript.8.25.04
    20   FORGOT.   EXHIBIT 225.
    21               THE OPERATOR:   PAGE 25?
    22               MR. JAMES:   YES, IF YOU WOULD GO TO PAGE 35.

    23   Q.   I REALLY AM PROBABLY GETTING AHEAD OF MYSELF A LITTLE
    24   BIT, MR. BREWER.    EXHIBIT 225 WAS A MANUAL SHOWN TO YOU BY

    25   PLAINTIFFS' COUNSEL FOR THE POWER-PAK II --



                         CHARLES BREWER - CROSS BY JAMES         104



    1    A.   YES.

    2    Q.   -- THAT YOU OWN IN YOUR CREMATORY; AM I CORRECT?
    3    A.   YES.

    4    Q.   AND I TAKE IT WHEN YOU BOUGHT YOUR RETORT, YOU RECEIVED

    5    ONE OF THESE MANUALS.
    6    A.   THAT'S CORRECT.

    7    Q.   AND I TAKE IT, BASED UPON YOUR TESTIMONY, THAT YOU'VE
    8    REVIEWED THIS MANUAL AND YOU'RE FAMILIAR WITH ITS CONTENTS.

    9    A.   YES.

    10   Q.   AND I TAKE IT FROM YOUR TESTIMONY THAT THIS MANUAL, AS
    11   FAR AS THE GUIDELINES THAT IT CONTAINS FOR THE OPERATION OF

    12   THE POWER-PAK AND FOR THE OPERATION OF A CREMATORY, ALSO

    13   CONTAINS INFORMATION THAT IS IN COMPLIANCE WITH THE STANDARD
    14   OF CARE AS YOU'VE TESTIFIED.

    15   A.   YES.
    16   Q.   ALL RIGHT.    IF YOU WOULD, PLEASE, SIR, WE'LL LOOK AT PAGE
    17   TWENTY -- OR 35, PARAGRAPH A.

    18               MR. JAMES:   AND IF YOU'LL BLOW UP PARAGRAPH A FOR
    19   ME, PLEASE.
    20   Q.   PARAGRAPH A OF THAT -- WOULD YOU LIKE TO HAVE A COPY OF

    21   THE MANUAL?

    22   A.   WELL, IF YOU'RE GOING TO ASK ME QUESTIONS ABOUT IT, I'D

                                  Page 94
                              Transcript.8.25.04
    23   LIKE TO SEE IT.
    24   Q.     SURE, THAT'S OKAY.
    25   A.     I GAVE MINE BACK.



                          CHARLES BREWER - CROSS BY JAMES            105



    1    Q.     YEAH, THAT'S FINE.

    2    A.     OKAY.
    3    Q.     MR. BREWER, I THINK I CAN READ FROM UP HERE, SO ON PAGE
    4    35, PARAGRAPH A DEALS WITH THE REMOVAL OF CREMAINS; DOES IT

    5    NOT?
    6    A.     YES.

    7    Q.     ACTUALLY, I NEED THAT COPY.      LET ME SEE IF I CAN HAND YOU
    8    ANOTHER COPY.

    9    A.     I HAD A COPY.    IF YOU'D JUST ASK THEM TO GIVE IT BACK TO

    10   ME.
    11   Q.     HERE IT IS.    SORRY ABOUT THAT, MR. BREWER.    I DO NEED TO

    12   SEE MY COPY.

    13   A.     THANK YOU.    THAT'S ALL RIGHT.

    14   Q.     MR. BREWER, LET ME KNOW WHEN YOU'RE AT PAGE 35.      ARE YOU
    15   THERE, SIR?

    16   A.     YEAH, YEAH.
    17   Q.     OKAY.   MR. BREWER, PAGE 35, PARAGRAPH A, DEALS WITH THE

    18   REMOVAL OF CREMATED REMAINS; DOES IT NOT?
    19   A.     YES.
    20   Q.     OKAY.   AND IF A CREMATORY WAS OPERATING IN ACCORDANCE

    21   WITH THE GUIDELINES CONTAINED IN PARAGRAPH A, THEY WOULD BE

    22   OPERATING WITHIN THE STANDARD OF CARE; WOULD THEY NOT, SIR?
    23   A.     YES.

    24   Q.     OKAY.   IN THAT PARAGRAPH, FIVE LINES DOWN, BEGINNING WITH
    25   THE WORD "USING," IT STATES:         USING THE LONG REMOVAL TOOL WITH

                                    Page 95
                           Transcript.8.25.04


                         CHARLES BREWER - CROSS BY JAMES         106



    1    THE FLAT END, GENTLY RAKE THE REMAINS TO THE FRONT OF THE

    2    HEARTH.    PLACE THE ASH PAN, RESTING THE FRONT LIP OF THE PAN,
    3    ON THE EDGE OF THE HEARTH.   WITH SMALL REMOVAL TOOL,
    4    APPROXIMATELY THREE FEET IN LENGTH, RAKE THE CREMATED REMAINS

    5    INTO THE ASH PAN.   IF MR. MARSH OPERATED HIS CREMATORY AND
    6    REMOVED CREMATED REMAINS IN ACCORDANCE WITH THAT PARAGRAPH, HE

    7    WOULD BE OPERATING WITHIN THE STANDARD OF CARE; IS THAT
    8    CORRECT?

    9    A.   YES.

    10   Q.   THAT WOULD APPLY TO MR. BRENT MARSH OR MR. RAY MARSH;
    11   WOULD IT NOT?

    12   A.   YES.

    13   Q.   ALL RIGHT.   IF YOU WOULD, SIR, PLEASE GO DOWN FOUR MORE

    14   LINES, AND IT STATES:   MOST METALLIC PARTICLES MAY BE REMOVED
    15   WITH THE PROVIDED HAND MAGNET.    THE MAGNET SHOULD BE SLOWLY

    16   MOVED THROUGHOUT THE REMAINS TO PICK UP ALL METALLIC

    17   PARTICLES.   IF MR. RAY MARSH USED A MAGNET IN ACCORDANCE WITH

    18   PARAGRAPH A OF THE REMOVAL OF CREMATED REMAINS WHILE HE WAS
    19   OPERATING HIS RETORT AND DID SO IN ACCORDANCE WITH THAT
    20   PARAGRAPH, HE WOULD BE OPERATING WITHIN THE STANDARD OF CARE,

    21   WOULDN'T HE?

    22   A.   YES.
    23   Q.   AND FINALLY, SIR -- AND THAT WOULD APPLY TO MR. BRENT

    24   MARSH.    IF HE USED THAT SAME PROCESS, HE WOULD BE OPERATING
    25   WITHIN THE STANDARD OF CARE, WOULDN'T HE?



                         CHARLES BREWER - CROSS BY JAMES         107



                                 Page 96
                             Transcript.8.25.04
    1    A.     YES.

    2    Q.     OKAY.   FINALLY, THE LAST SENTENCE OF THAT PARAGRAPH, SIR,
    3    STATES:      METAL TRASH CANS ARE RECOMMENDED FOR THIS PROCEDURE,
    4    AS PARTICLES ARE OFTEN TOO HOT TO PLACE IN A PLASTIC TRASH

    5    CAN.    AND WE KNOW THAT CREMATED REMAINS, WHEN THEY COME OUT OF
    6    A RETORT, ARE VERY HOT; ARE THEY NOT?
    7    A.     YES.

    8    Q.     AND IF MR. RAY MARSH OPERATED HIS RETORT IN ACCORDANCE

    9    WITH THAT SENTENCE AND THIS PARAGRAPH, HE WOULD BE WITHIN THE
    10   STANDARD OF CARE; WOULD HE NOT, SIR?
    11   A.     YES.

    12   Q.     AND IF MR. BRENT MARSH OPERATED HIS RETORT OR HIS

    13   CREMATORY WITHIN COMPLIANCE OF THAT PARAGRAPH, HE ALSO WOULD
    14   BE WITHIN THE STANDARD OF CARE; WOULD HE NOT?

    15   A.     YES.

    16   Q.     THERE IS NO REFERENCE TO THE USE OF A VACUUM TOOL OR A

    17   VACUUM CLEANER IN THIS PARAGRAPH, IS THERE?

    18   A.     NO.
    19   Q.     IN FACT, THE VACUUM TOOLS CAME INTO BEING IN THE YEAR

    20   2000, DIDN'T THEY?

    21   A.     YES.
    22   Q.     IN FACT, THEY ARE USED TO REMOVE HOT CREMATED REMAINS --
    23   A.     YES.

    24   Q.     -- I BELIEVE.

    25   A.     YES.



                           CHARLES BREWER - CROSS BY JAMES        108



    1    Q.     SO, IN 1982, WHEN MR. RAY MARSH OPENED HIS RETORT AND HIS
    2    CREMATORY, HE WOULDN'T HAVE A VACUUM TOOL?

    3    A.     NO.
                                   Page 97
                         Transcript.8.25.04
    4    Q.   IN 1995 OR 1996, IF MR. RAY MARSH STOPPED OPERATING HIS

    5    RETORT FOR WHATEVER REASON, HE WOULDN'T HAVE A VACUUM TOOL
    6    AVAILABLE TO HIM, WOULD HE?
    7    A.   NO.

    8    Q.   AND THE LACK OF USE OF A VACUUM TOOL IS NOT A VIOLATION
    9    OF THE STANDARD OF CARE; IS IT, MR. BREWER?
    10   A.   NO.

    11   Q.   LET'S GO TO PARAGRAPH B.   MR. BREWER, I TAKE IT THAT

    12   SINCE YOU STARTED OPERATING YOUR CREMATORY -- WELL, ACTUALLY
    13   SINCE YOU STARTED DOING CREMATIONS IN THE 1980'S, THERE HAVE
    14   BEEN A CHANGE IN THE EQUIPMENT THAT'S BEEN USED.   IT'S GETTING

    15   MORE ADVANCED; IS IT NOT?

    16   A.   YEAH.
    17   Q.   AND PULVERIZATION METHODS HAVE CHANGED, TOO; HAVE THEY

    18   NOT, SIR?

    19   A.   YES.

    20   Q.   IN PARAGRAPH B OF THIS DOCUMENT, PULVERIZING THE CREMATED

    21   REMAINS, IF MR. RAY MARSH, WHEN HE OPERATED HIS CREMATORY,
    22   PULVERIZED CREMATED REMAINS IN ACCORDANCE WITH THIS PARAGRAPH

    23   WHILE HE OPERATED HIS CREMATORY, HE WOULD BE IN COMPLIANCE

    24   WITH THE STANDARD OF CARE; WOULD HE NOT?
    25   A.   YES.



                       CHARLES BREWER - CROSS BY JAMES          109




    1    Q.   IN FACT, THIS PARAGRAPH DOES NOT REQUIRE THAT A
    2    PULVERIZER OR A MECHANICAL MACHINE THAT GRINDS BONE TO
    3    CREMAINS BE USED, DOES IT?

    4    A.   NO.
    5    Q.   IN FACT, YOU KNOW, BASED ON YOUR EXPERTISE, THAT MANY
    6    CREMATORIES THROUGHOUT THIS COUNTRY WOULD HAVE TO HAND
                               Page 98
                             Transcript.8.25.04
    7    PULVERIZE HUMAN BONE INTO CREMAINS AT ONE TIME; WOULDN'T THEY,

    8    SIR?
    9    A.     DEPENDS ON THE TIME, BUT NOT TODAY.
    10   Q.     NOT TODAY.

    11   A.     NO.
    12   Q.     BUT THROUGH 1982 AND 1990.
    13   A.     YES.

    14   Q.     THEY WOULD HAVE TO DO IT BY HAND; WOULDN'T THEY, SIR?

    15   A.     YES.
    16   Q.     BECAUSE THEY DIDN'T HAVE THE TECHNOLOGY WE HAVE NOW TODAY
    17   PULVERIZING CREMAINS.

    18   A.     THAT'S CORRECT.

    19   Q.     IN FACT, THE NEW PULVERIZERS CAN DO IT IN 60 SECONDS;
    20   CAN'T THEY, SIR?

    21   A.     YES.

    22   Q.     AND THEY PULVERIZE BONE DOWN TO A VERY FINE DUST --

    23   A.     YES.

    24   Q.     -- IS THAT NOT CORRECT?
    25   A.     YES.



                         CHARLES BREWER - CROSS BY JAMES        110




    1    Q.     AND YOU WOULDN'T EXPECT THAT SAME RESULT FROM HAND
    2    PULVERIZATION BETWEEN 1982 AND 1992 --

    3    A.     NO.
    4    Q.     -- 1990, WOULD YOU?

    5    A.     NO.
    6    Q.     IN FACT, YOU WOULD EXPECT THERE TO BE CHUNKS OF BONE LEFT
    7    IN CREMAINS, WOULDN'T YOU?

    8    A.     YES.
    9    Q.     AND THERE HAVE BEEN ADVANCES MADE IN REMOVAL OF CREMAINS
                                 Page 99
                             Transcript.8.25.04
    10   AND PULVERIZATION OF CREMAINS BETWEEN 1982 AND THE YEAR 2004;

    11   HAVE THERE NOT, SIR?
    12   A.     YES.
    13   Q.     IN REGARDS TO TRI-STATE CREMATORY AND ITS OPERATION

    14   BETWEEN THE YEAR 1982 AND 1995 OR 1996, YOU DON'T KNOW HOW
    15   MANY EMPLOYEES WORKED FOR TRI-STATE CREMATORY; DO YOU,
    16   MR. BREWER?

    17   A.     NO, I DO NOT.

    18   Q.     BETWEEN 1982 AND 1996, YOU DO NOT KNOW HOW MANY
    19   CREMATIONS WERE PERFORMED BY TRI-STATE CREMATORY, DO YOU?
    20   A.     NO, I DO NOT.

    21   Q.     YOU DO NOT KNOW HOW MANY CREMATIONS WERE PERFORMED ON A

    22   DAILY BASIS AT TRI-STATE CREMATORY BETWEEN 1982 AND 1992, DO
    23   YOU?

    24   A.     NO, I DO NOT.

    25   Q.     OR 1996.



                           CHARLES BREWER - CROSS BY JAMES        111




    1    A.     WHICHEVER.
    2    Q.     YOU DO NOT KNOW ANYTHING ABOUT HOW MR. RAY MARSH RAN HIS

    3    CREMATORY OR HOW HE PERFORMED CREMATIONS BETWEEN THE YEARS
    4    1982 AND 1995; DO YOU, MR. BREWER?

    5    A.     HOW HE RAN IT?
    6    Q.     YES.
    7    A.     ONLY WHAT I OBSERVED.

    8    Q.     WHAT'S THAT?
    9    A.     ONLY WHAT I OBSERVED --
    10   Q.     OKAY.

    11   A.     -- IN THE CONDITION OF THE CREMATORY.
    12   Q.     WELL, YOU OBSERVED A CONDITION OF THE CREMATORY IN
                                 Page 100
                             Transcript.8.25.04
    13   FEBRUARY OF 2002.

    14   A.   RIGHT.
    15   Q.   YOU DON'T KNOW HOW LONG IT HAD BEEN IN THAT CONDITION; DO
    16   YOU, SIR?

    17   A.   NO.
    18   Q.   YOU DON'T KNOW WHEN IT FELL INTO, AS YOU SAID, DISREPAIR,
    19   DO YOU?

    20   A.   NO.

    21   Q.   YOU HAVE NOT SEEN THE FIRST PHOTOGRAPH OF THE RETORT WHEN
    22   IT WAS OPERATED BY MR. RAY MARSH; HAVE YOU, MR. BREWER?
    23   A.   RAY MARSH BEING THE FATHER.

    24   Q.   THE FATHER, YES.

    25   A.   YES.    NO.



                            CHARLES BREWER - CROSS BY JAMES   112




    1    Q.   TO BE CLEAR, I'LL CALL MR. BRENT MARSH BRENT MARSH, AND

    2    I'LL CALL THE FATHER RAY MARSH SO WE UNDERSTAND.
    3    A.   OKAY.

    4    Q.   SO, BETWEEN THE YEARS 1982 AND 1992, YOU DO NOT KNOW WHAT

    5    THE CONDITION OF THAT RETORT WAS, DO YOU?
    6    A.   NO, I DO NOT.

    7    Q.   YOU DO NOT KNOW WHAT THE CONDITION OF THE BUILDING WHERE
    8    THE RETORT WAS LOCATED WAS BETWEEN THE YEARS 1982 AND 1995; DO
    9    YOU, SIR?

    10   A.   NO.
    11   Q.   ALL YOU KNOW IS THAT YOU WENT OUT AND WERE ON-SITE FOR
    12   TWO WEEKS, I BELIEVE.

    13   A.   A LITTLE OVER TWO WEEKS, YES.

    14   Q.   AND YOU INSPECTED THAT RETORT.
    15   A.   YES.
                                  Page 101
                            Transcript.8.25.04
    16   Q.   AND YOU INSPECTED IT OVER THE COURSE OF HOW MANY DAYS,

    17   MR. BREWER?   HOW MANY TIMES DID YOU INSPECT THE RETORT?
    18   A.   ONE TIME.
    19   Q.   ONE TIME.    AND HOW LONG DID IT TAKE YOU?

    20   A.   PROBABLY SEVERAL HOURS.
    21   Q.   ALL RIGHT.    AND SO YOU'VE SEEN THE RETORT ONCE IN THE
    22   YEAR 2002 OVER THE COURSE OF A COUPLE OF HOURS?

    23   A.   YES.

    24   Q.   AND YOU HAVE NOT OBSERVED OR SEEN ANY OTHER PHOTOGRAPHS
    25   OF THE RETORT TO SHOW ITS CONDITION AT ANY TIME PRIOR TO THE



                          CHARLES BREWER - CROSS BY JAMES       113




    1    TIME THAT YOU INSPECTED THAT RETORT, HAVE YOU?

    2    A.   NO.
    3    Q.   YOU DON'T KNOW HOW MR. BRENT MARSH RAN OR MANAGED THE

    4    CREMATORY, DO YOU?

    5    A.   NO, I DO NOT.
    6    Q.   YOU DON'T KNOW WHAT BUSINESS RECORDS HE KEPT, DO YOU?

    7    A.   NO, I DO NOT.
    8    Q.   YOU DO NOT KNOW WHAT IDENTIFICATION METHODS HE USED IN
    9    TERMS OF KEEPING TRACK OF BODIES, DO YOU?

    10   A.   NO, I DO NOT.
    11   Q.   I UNDERSTAND, BUT YOU DON'T KNOW.   OKAY, ALL RIGHT.
    12   A.   THAT'S CORRECT.

    13   Q.   YOU DO NOT KNOW THE CONDITION OF THE RETORT DURING THE

    14   OPERATION DURING HIS TERM EXCEPT FOR WHAT YOU SAW IN FEBRUARY
    15   OF 2002; AM I CORRECT?

    16   A.   RIGHT, YES.

    17   Q.   YOU MADE SOME COMMENTS ABOUT LICENSING, I BELIEVE, ON
    18   DIRECT EXAMINATION.    I BELIEVE YOU SAID THAT FLORIDA REQUIRES
                                 Page 102
                           Transcript.8.25.04
    19   FUNERAL DIRECTORS TO BE LICENSED.

    20   A.   LICENSED FUNERAL DIRECTORS AND LICENSED CREMATORY
    21   OPERATORS.
    22   Q.   ALL RIGHT.

    23   A.   TWO SEPARATE LICENSES.
    24   Q.   ALL RIGHT.   YOU'RE NOT FAMILIAR WITH THE LICENSURE
    25   REQUIREMENTS OF THE STATE OF GEORGIA, ARE YOU?



                      CHARLES BREWER - REDIRECT BY BARNETT       114




    1    A.   NO, I'M NOT.

    2    Q.   YOU'RE NOT FAMILIAR WITH THE LICENSURE REQUIREMENTS OF
    3    THE STATE OF GEORGIA BETWEEN THE YEARS 1990 -- OR '82 AND

    4    1995, ARE YOU?

    5    A.   NO.
    6    Q.   YOU DON'T KNOW WHETHER OR NOT MR. RAY MARSH, WHEN HE

    7    OPERATED THE CREMATORY, WAS REQUIRED TO BE LICENSED, DO YOU?
    8    A.   NO.

    9    Q.   YOU DON'T KNOW TODAY WHETHER THE STATE OF GEORGIA

    10   REQUIRES A CREMATORY OPERATOR TO BE LICENSED; DO YOU, SIR?
    11   A.   NO.

    12              MR. JAMES:   I BELIEVE THAT'S ALL I HAVE, YOUR HONOR.
    13   IF YOU'LL GIVE ME JUST A SECOND.
    14              THE COURT:   THANK YOU, THANK YOU.   JUST A MOMENT.

    15              MR. JAMES:   THAT'S ALL I HAVE.
    16              THE COURT:   ALL RIGHT.   THANK YOU, MR. JAMES.
    17              MISS BARNETT?

    18              MS. BARNETT:    HOPEFULLY, JUST A FEW QUESTIONS, YOUR
    19   HONOR.
    20                REDIRECT EXAMINATION OF CHARLES BREWER

    21   BY MS. BARNETT:
                                 Page 103
                            Transcript.8.25.04
    22   Q.   MR. BREWER, THERE'S A LOT YOU SAW AND DID AT THE MARSH

    23   CREMATORY AS A DMORT OFFICER THAT YOU'RE NOT TESTIFYING ABOUT
    24   TODAY.   COULD YOU JUST EXPLAIN TO THE JURY IN CASE THEY'RE
    25   WONDERING WHY THAT IS?



                       CHARLES BREWER - REDIRECT BY BARNETT        115



    1    A.   I'M SORRY.

    2    Q.   THERE'S A LOT THAT YOU SAW AND DID AS PART OF YOUR DMORT
    3    OBLIGATIONS THAT YOU'RE NOT TESTIFYING ABOUT TODAY.

    4    A.   WELL, I'M NOT AUTHORIZED TO DO THAT.

    5              MR. JAMES:    OBJECT, YOUR HONOR.    THE SCOPE OF HIS
    6    TESTIMONY'S BEEN DEFINED BY THE DISCLOSURE, AND I DON'T THINK

    7    IT REQUIRES AN EXPLANATION AS TO WHY HE'S NOT TESTIFYING AS TO
    8    CERTAIN MATTERS.

    9              THE COURT:    WHY DO YOU WANT TO BRING THAT OUT?

    10             MS. BARNETT:    WELL, I THOUGHT IT WOULD BE HELPFUL
    11   FOR THE JURY TO KNOW THAT HE HASN'T BEEN AUTHORIZED TO REVEAL

    12   DETAILS OF THE FEDERAL OPERATION.

    13             THE COURT:    WELL, THAT'S THE REASON.    ALL RIGHT.

    14             MR. JAMES:    I DON'T KNOW THAT THAT CAME OUT DURING
    15   THE EXAMINATION --

    16             THE COURT:    NO, IT DIDN'T.

    17             MR. JAMES:    -- YOU KNOW, YOUR HONOR, SO IT'S
    18   IRRELEVANT.   AND IT'S NOT RELEVANT TO THIS TRIAL, WHAT HE DID
    19   IN HIS FEDERAL INVESTIGATION.

    20             THE COURT:    NOBODY'S ASKED HIM WHAT HE DID IN HIS
    21   FEDERAL -- ARE THERE RULES THAT PROHIBIT YOU FROM DISCLOSING
    22   WHAT YOU DO IN A FEDERAL INVESTIGATION?

    23             THE WITNESS:    YES, SIR.     I HAVE TO HAVE PERMISSION
    24   FROM HOMELAND SECURITY, ADVICE OF COUNSEL, TO DISCLOSE A
                               Page 104
                            Transcript.8.25.04
    25   FEDERAL OPERATION.



                      CHARLES BREWER - REDIRECT BY BARNETT          116



    1               THE COURT:   ALL RIGHT.

    2    Q.   NOW, MR. JAMES ASKED YOU TO PICK OUT A FEW SPECIFIC
    3    PIECES FROM SOME DOCUMENTS TO TALK ABOUT WHETHER THEY'RE

    4    REQUIRED BY THE STANDARD OF CARE.       WOULD YOU AGREE THAT YOU
    5    NEED TO REQUIRE -- A CREMATORY OPERATOR MUST COMPLY WITH ALL
    6    OF THE REQUIREMENTS OF THE STANDARD OF CARE AND NOT JUST PICK

    7    A FEW OUT OF MANY?
    8    A.   ABSOLUTELY.

    9    Q.   AS FAR AS EXHIBIT 225, THE OPERATOR'S MANUAL, DOES THAT

    10   SET FORTH THE STANDARD OF CARE FOR OPERATION OF A RETORT SUCH
    11   AS THE ONE ON THE MARSH PROPERTY?

    12   A.   YES, IT DOES.

    13   Q.   YOU WERE ASKED A LOT OF QUESTIONS ABOUT HOW MR. MARSH

    14   KEPT IDENTITY RECORDS.    DID YOU SEE ANY EVIDENCE, IN YOUR
    15   EXAMINATION OF THE CREMATORY BUILDING, OF IDENTIFICATION

    16   PROCEDURES USED BY THE MARSH FAMILY?

    17   A.   NO.

    18   Q.   YOU WERE ASKED AN AWFUL LOT OF QUESTIONS ABOUT HOW
    19   SOMEONE MIGHT PULVERIZE REMAINS.     WOULD IT EVER BE --

    20   HYPOTHETICALLY, WOULD IT EVER BE CONSISTENT WITH THE STANDARD
    21   OF CARE TO USE A WOOD CHIPPER TO PULVERIZE REMAINS?
    22   A.   NO.

    23   Q.   I WANT TO -- EXHIBIT 93-B IS THAT CANA STANDARD THAT
    24   MR. JAMES HAD YOU BRING UP.
    25              MS. BARNETT:   FIRST, YOUR HONOR, I'D LIKE TO MOVE



                      CHARLES BREWER - REDIRECT BY BARNETT          117
                               Page 105
                           Transcript.8.25.04



    1    THAT INTO EVIDENCE.      IT'S THE CANA RECOMMENDED PROCEDURES FOR

    2    HANDLING DEAD BODIES THAT MR. JAMES WAS ASKING HIM ABOUT.
    3                THE COURT:   DO YOU HAVE ANY OBJECTION?

    4                MR. JAMES:   NO, YOUR HONOR.   I THINK IT WAS COVERED
    5    ON CROSS-EXAMINATION.      AS TO THE STANDARD OF CARE, I DO NOT,
    6    YOUR HONOR.

    7                THE COURT:   ALL RIGHT, IT'S ADMITTED THEN.
    8                MS. BARNETT:   93-B.

    9                THE COURT:   FOR THAT PURPOSE.

    10               MS. BARNETT:   I DIDN'T MAKE ALL MY EXTRA COPIES OF
    11   IT, BUT CAN I HAVE YOUR COPY?       I WOULD TENDER MY COPY, BUT I

    12   HAVE NOTES ON IT.

    13               ALL RIGHT, I HAVE IT.

    14               THE WITNESS:   YOU GOT IT?
    15               MS. BARNETT:   I HAVE IT.    I APOLOGIZE.

    16               MR. JAMES:   I ACTUALLY THINK HE HAS MY COPY,

    17   KATHRYN.

    18               MS. BARNETT:   OKAY, WE'VE GOT IT.
    19               MR. JAMES:   THAT'S OKAY, MR. BREWER.   YOU CAN HANG

    20   ON TO IT.

    21               MS. BARNETT:   ALL RIGHT.
    22               MR. JAMES.   UNTIL YOU'RE DONE.

    23               MS. BARNETT:   I'M GOING TO HAND YOU -- IF I CAN
    24   APPROACH.
    25               THE WITNESS:   THIS IS YOUR COPY; THIS IS YOUR COPY.



                       CHARLES BREWER - REDIRECT BY BARNETT        118




    1                MR. JAMES:   YEAH, YOU CAN HANG ON TO IT TILL YOU'RE

                                  Page 106
                            Transcript.8.25.04
    2    DONE.
    3                 MS. BARNETT:   IT'S EXHIBIT 93-B, YOUR HONOR.
    4                 THE WITNESS:   OKAY.

    5                 MS. BARNETT:   IT JUST TOOK US A MINUTE TO FIND IT.
    6    A.    I HAVE -- I HAVE HIS COPY.

    7    Q.    YOU HAVE IT.   ALL RIGHT, WE FOUND IT.    WE MAY NOT BE ABLE
    8    TO PUT IT UP ON THE SCREEN.
    9                 MR. JAMES:   YOU CAN DO IT.

    10                MS. BARNETT:   OH, PERFECT.   AND WHAT I WOULD -- OH,
    11   NO.   MAYBE I NEED LUNCH.

    12   Q.    ALL RIGHT, THE FIRST PAGE.     I JUST WANTED TO ASK YOU A

    13   VERY COUPLE QUESTIONS ABOUT THIS DOCUMENT.      THE VERY FIRST
    14   PARAGRAPH ON THIS PAGE, THE LAST LINE.      IT SAYS:   HIGH

    15   STANDARDS MUST BE EMPLOYED DURING ALL PHASES OF THE CREMATION

    16   PROCESS.     WOULD YOU AGREE THAT'S REQUIRED BY THE STANDARD OF

    17   CARE?
    18   A.    YES.

    19   Q.    AND HAS IT BEEN REQUIRED BY THE STANDARD OF CARE SINCE

    20   1988?

    21   A.    YES.
    22   Q.    IT SAYS IN THE SECOND PARAGRAPH, THE LAST SENTENCE:       IT

    23   IS THE OBJECTIVE OF THE FOLLOWING PROCEDURES TO ENSURE THAT

    24   ALL PROCEDURES REFLECT THOSE HIGH STANDARDS AND SERVE AS A
    25   GUIDE FOR THOSE PROFESSIONALS CHARGED WITH THE SACRED TRUST OF



                        CHARLES BREWER - REDIRECT BY BARNETT       119




    1    THE DISPOSITION OF HUMAN DEAD BY CREMATION WITHIN THE REALM OF
    2    THE LAW AND DIGNITY.      WOULD YOU AGREE THAT THAT SETS FORTH

    3    WHAT THE STANDARD OF CARE REQUIRES OF CREMATORY OPERATORS?
    4    A.    YES, I DO.

                                   Page 107
                          Transcript.8.25.04
    5    Q.   TELL ME WHAT IS MEANT BY SACRED TRUST IN THE CREMATORY
    6    INDUSTRY.
    7    A.   WELL, THE SACRED TRUST WOULD BE, WHETHER THE BODY IS

    8    CREMATED OR BURIED, THE FAMILY GIVES YOU THEIR SACRED TRUST TO
    9    HANDLE THEIR LOVED ONES IN A MANNER WITH THE HIGHEST STANDARD

    10   OF CARE THAT YOU COULD POSSIBLY GIVE.
    11   Q.   LET ME ASK YOU TO TURN TO SECTION 4, AND I'LL TRY TO DO
    12   THIS QUICKLY.   SECTION 4, CREMATION OF HUMAN REMAINS.      4.1

    13   SAYS:   THE UNAUTHORIZED SIMULTANEOUS CREMATION OF MORE THAN
    14   ONE HUMAN REMAINS WITHIN THE SAME CREMATION CHAMBER IS

    15   SPECIFICALLY FORBIDDEN.     IS THAT YOUR -- IS THAT CONSISTENT

    16   WITH THE STANDARD OF CARE?
    17   A.   YES, IT IS.

    18               MS. BARNETT:   ALL RIGHT.   SECTION -- IF WE COULD

    19   PULL THAT ON THE --

    20               MR. JAMES:   WE ONLY HAVE THE FIRST PAGE.
    21               MS. BARNETT:   OH, JUST THE FIRST PAGE.   ALL RIGHT.

    22               MR. JAMES:   THAT'S ALL RIGHT.

    23   Q.   EXHIBIT 4.2 SAYS:     IMMEDIATELY PRIOR TO BEING PLACED

    24   WITHIN THE CREMATION CHAMBER, THE IDENTIFICATION OF THE HUMAN
    25   REMAINS SHALL BE VERIFIED BY THE CREMATORY AUTHORITY, AND THE



                       CHARLES BREWER - REDIRECT BY BARNETT       120




    1    IDENTIFICATION FROM THE OUTSIDE OF THE CREMATION CONTAINER
    2    SHALL BE REMOVED AND PLACED NEAR THE CREMATION CHAMBER CONTROL

    3    PANEL, WHERE IT SHALL REMAIN IN PLACE UNTIL THE CREMATION
    4    PROCESS IS COMPLETE.     DO YOU DO THAT AT YOUR FACILITY?
    5    A.   YES.

    6    Q.   HOW DO YOU ATTACH THE IDENTIFICATION AND PAPERWORK WHILE
    7    YOU'RE PERFORMING THE ACTUAL --

                                  Page 108
                          Transcript.8.25.04
    8    A.   THE FRONT OF THE CREMATORY IS METAL, AND WE USE A MAGNET
    9    TO ATTACH STUFF TO THE FRONT OF THE CREMATORY ITSELF.
    10   Q.   WOULD YOU AGREE THAT THE DESCRIPTION THAT I SET FORTH,

    11   THAT I JUST READ, IS CONSISTENT WITH THE STANDARD OF CARE?
    12   A.   YES.

    13   Q.   OR IN FACT IS REQUIRED BY THE STANDARD OF CARE?
    14   A.   YES.
    15   Q.   SECTION 4.3 SAYS:    A CREMATORY MAY ONLY SIMULTANEOUSLY

    16   CREMATE MORE THAN ONE HUMAN REMAINS WITHIN THE SAME CREMATION
    17   CHAMBER UPON HAVING RECEIVED WRITTEN AUTHORIZATION TO DO SO.

    18   AGAIN, WOULD YOU AGREE THAT THAT SETS FORTH WHAT THE STANDARD

    19   OF CARE REQUIRES?
    20   A.   YES.

    21   Q.   SECTION 5 SAYS, SECTION 5, PROCESSING OF CREMATED

    22   REMAINS:    UPON COMPLETION OF THE CREMATION, INSOFAR AS

    23   POSSIBLE, ALL RESIDUAL OF THE CREMATION PROCESS SHALL BE
    24   REMOVED FROM THE CREMATION CHAMBER, AND THE CHAMBER SWEPT

    25   CLEAN.   WOULD YOU AGREE THAT'S REQUIRED BY THE STANDARD OF



                        CHARLES BREWER - RECROSS BY JAMES        121




    1    CARE?
    2    A.   YES, IT IS.

    3    Q.   AND HAS IT BEEN SO SINCE 1988?
    4    A.   YES.
    5    Q.   FINALLY, 5.3 ON DOWN THERE:   ALL BODY PROSTHESES,

    6    BRIDGEWORK, OR SIMILAR ITEMS REMOVED FROM THE CREMATED REMAINS
    7    SHALL BE DISPOSED OF.    AGAIN, DO YOU AGREE THAT'S REQUIRED BY
    8    THE STANDARD OF CARE?

    9    A.   YES.
    10   Q.   DID YOU OBSERVE ANY MAGNET AT THE MARSH CREMATORY FOR THE

                                 Page 109
                          Transcript.8.25.04
    11   REMOVING OF METAL OBJECTS?
    12   A.     NO.
    13   Q.     ONE LAST QUESTION.     IT'S A DANGEROUS THING FOR LAWYERS TO

    14   SAY.    MR. BREWER, ARE YOU BEING PAID TO COME TESTIFY HERE AS
    15   AN EXPERT WITNESS?

    16   A.     I'M BEING PAID MILEAGE EXPENSES ONLY.
    17                 MS. BARNETT:   THAT'S ALL THE QUESTIONS I HAVE.
    18   THANK YOU VERY MUCH FOR COMING TODAY.

    19                 THE COURT:   MR. JAMES?
    20                  RECROSS-EXAMINATION OF CHARLES BREWER

    21   BY MR. JAMES:

    22   Q.     MR. BREWER, YOU DIDN'T ARRIVE ON THE SCENE OF THE
    23   TRI-STATE CREMATORY DISCOVERIES ON THE DAY THAT DISCOVERY WAS

    24   MADE; DID YOU, SIR?

    25   A.     NO.



                          CHARLES BREWER - RECROSS BY JAMES        122




    1    Q.     IN FACT, YOU MADE YOUR INSPECTION OF THE CREMATORY FIVE
    2    DAYS AFTER OTHER PEOPLE HAD BEEN ON THE PROPERTY, INCLUDING

    3    THE GEORGIA BUREAU OF INVESTIGATION AND OTHER AUTHORITIES;
    4    ISN'T THAT CORRECT, SIR?
    5    A.     I DON'T KNOW THE EXACT DAY, BUT I WOULD SAY EITHER FOUR

    6    OR FIVE DAYS, YES.
    7    Q.     AND SO THERE HAD BEEN OTHER INDIVIDUALS DOING AN
    8    INSPECTION AND INVESTIGATION OF THIS PROPERTY BEFORE YOU EVEN

    9    ARRIVED ON THE PROPERTY?
    10   A.     YES.

    11   Q.     GEORGIA BUREAU OF INVESTIGATION DIDN'T SHOW YOU ANY
    12   BUSINESS RECORDS THEY DISCOVERED, DID THEY?

    13   A.     NO.

                                    Page 110
                          Transcript.8.25.04
    14   Q.   GEORGIA BUREAU OF INVESTIGATION DIDN'T SHOW YOU WHETHER
    15   THEY DISCOVERED A MAGNET OR NOT, DID THEY?
    16   A.   NO.

    17   Q.   GEORGIA BUREAU OF INVESTIGATION DIDN'T SHOW YOU ANY
    18   PULVERIZATION EQUIPMENT, DID THEY?

    19   A.   NO.
    20   Q.   GEORGIA BUREAU OF INVESTIGATION DIDN'T SHARE ANY
    21   DOCUMENTS OR PHOTOGRAPHS WITH YOU, DID THEY?

    22   A.   NO.
    23   Q.   IN TERMS OF THE IDENTIFICATION PROCESS THAT MISS BARNETT

    24   WENT OVER WITH YOU ON THE CANA GUIDELINES, YOU DON'T KNOW

    25   WHETHER OR NOT MR. RAY MARSH FOLLOWED THAT IDENTIFICATION



                       CHARLES BREWER - RECROSS BY JAMES         123




    1    PROCESS BECAUSE YOU DON'T HAVE THE RECORDS, DO YOU?
    2    A.   NO.

    3    Q.   AND THEY HAVEN'T BEEN PROVIDED TO YOU BY THE GEORGIA
    4    BUREAU OF INVESTIGATION?

    5    A.   I DIDN'T DO THE INSPECTION FOR THE GBI.

    6    Q.   OKAY.   IN TERMS OF THE PULVERIZER, TODAY A PULVERIZER IS
    7    USED TO GRIND BONES, ISN'T IT?
    8    A.   YES.

    9    Q.   AND IT'S, LACK OF A BETTER WORD, A MACHINE THAT YOU POUR
    10   OR PUT THE BONES IN; AND IT ACTUALLY GRINDS THEM DOWN TO A

    11   FINE DUST, DOESN'T IT?
    12   A.   YES.

    13   Q.   AND PRIOR TO THE PULVERIZATION BY MACHINE, AS YOU STATED,
    14   IT WAS DONE BY HAND; IS THAT CORRECT?
    15   A.   YES.

    16   Q.   AND IT WAS DONE BY VARIOUS METHODS TO SMASH THE BONE DOWN

                               Page 111
                          Transcript.8.25.04
    17   TO A FINER PARTICLE, WASN'T IT?
    18   A.   YES.
    19   Q.   AND THAT PURPOSE IS TO REDUCE IT TO THE CREMAINS THAT

    20   PEOPLE RECEIVE AFTER THE CREMATION PROCESS IS OVER; IS THAT
    21   CORRECT?

    22   A.   YES.
    23   Q.   AND I THINK NOWADAYS THE PULVERIZATION PROCESS TAKES 60
    24   SECONDS; DOESN'T IT, SIR?

    25   A.   YES.    LESS THAN THAT.



                        CHARLES BREWER - RECROSS BY JAMES            124




    1    Q.   IT'S A PRETTY POWERFUL MACHINE, ISN'T IT?
    2    A.   YES.

    3    Q.   AND ITS PURPOSE IS TO GRIND BONE; AM I CORRECT?
    4    A.   YES.

    5                MR. JAMES:   THANK YOU, MR. BREWER.

    6                MS. BARNETT:   WE HAVE NO FURTHER QUESTIONS, YOUR
    7    HONOR, BUT I'M REMINDED THAT I'D LIKE TO MOVE TO ENTER EXHIBIT

    8    225 INTO EVIDENCE.

    9                MR. JAMES:   THERE'S NO OBJECTION TO THAT EXHIBIT.
    10               THE COURT:   225.   ALL RIGHT, IT'S ADMITTED.

    11               MR. JAMES:   SUBJECT TO MY OBJECTION, YOUR HONOR,
    12   BECAUSE IT'S AN INSTRUCTION FOR THE STANDARD OF CARE.       I THINK

    13   I HAD MADE THAT --
    14               THE COURT:   WELL, YOU OBJECTED TO IT GOING IN, AND
    15   THEN I -- SO, YOU'RE WILLING FOR IT TO GO IN EVIDENCE FOR WHAT

    16   PURPOSE?
    17               MR. JAMES:   THE STANDARD OF CARE, YOUR HONOR.
    18               THE COURT:   FOR THE STANDARD OF CARE?

    19               MR. JAMES:   YES, YOUR HONOR.

                                  Page 112
                            Transcript.8.25.04
    20               THE COURT: ALL RIGHT, IT'S ADMITTED.    IS THAT FOR
    21   THAT PURPOSE ONLY?
    22               MR. JAMES:   YES, YOUR HONOR.

    23               THE COURT:   IS THAT WHAT YOU'RE TALKING ABOUT?
    24               MR. JAMES:   YES, YOUR HONOR.

    25               THE COURT:   ALL RIGHT, IT'S ADMITTED THEN FOR THAT



                                                                    125



    1    PURPOSE.

    2               THERE ARE A LOT OF THINGS IN IT OTHER THAN THE
    3    STANDARD OF CARE, LADIES AND GENTLEMEN OF THE JURY.     THIS

    4    MANUAL THAT THE LAWYERS ARGUED OVER SOME IS NOW ADMITTED INTO

    5    EVIDENCE, EXHIBIT 225, AND AT THE SECOND PAGE IT SAYS OWNER'S
    6    MANUAL.    THIS IS ADMITTED FOR THE LIMITED PURPOSE OF BEING

    7    RELEVANT AS TO THE STANDARD OF CARE FOR THE OPERATION OF A
    8    CREMATORY.

    9               MR. JAMES:    YES, YOUR HONOR.

    10              THE COURT:    AND THAT'S WHAT YOU'RE TENDERING IT FOR?
    11              MS. BARNETT:    YES, SIR, YOUR HONOR.

    12              THE COURT:    ALL RIGHT.   AND THAT'S WHAT YOU AGREE

    13   IT'S ADMISSIBLE FOR?
    14              MR. JAMES:    YES, YOUR HONOR, THAT'S CORRECT.

    15              THE COURT:    ALL RIGHT, ALL RIGHT.   NOW, I GATHER YOU
    16   WANT TO EXCUSE THIS GENTLEMAN.
    17              MS. BARNETT:    YES, PLEASE.

    18              THE COURT:    ANY OBJECTION IF WE LET HIM GO?
    19              MR. JAMES:    NO, YOUR HONOR, NOT AT ALL.
    20              THE COURT:    ALL RIGHT, THANK YOU.   YOU'RE FREE TO

    21   GO.

    22              THE WITNESS:    THANK YOU, SIR.

                                  Page 113
                           Transcript.8.25.04
    23                          (WITNESS EXCUSED)
    24              THE COURT:   LET ME SPEAK TO COUNSEL HERE AT THE
    25   BENCH A MOMENT.



                                                                 126



    1                   (OUT OF THE HEARING OF THE JURY)

    2               THE COURT:   Y'ALL STILL NEED TO RECESS FOR THE
    3    AFTERNOON?
    4               MR. JAMES:   YES, YOUR HONOR, WE DO.

    5               THE COURT:   ALL RIGHT.
    6               MR. SMALLEY:   THANK YOU.

    7               THE COURT:   OKAY.
    8                      (IN THE HEARING OF THE JURY)

    9               THE COURT:   LADIES AND GENTLEMEN OF THE JURY, THESE

    10   LAWYERS HAVE TO DO SOME THINGS THIS AFTERNOON THAT MAY SHORTEN
    11   THIS CASE.   IT WILL TO SOME EXTENT, I KNOW, SO I'M GOING TO

    12   JUST LET YOU RECESS FOR THE AFTERNOON.     PLEASE BE BACK AT 9:30

    13   IN THE MORNING.   HAVE A GOOD AFTERNOON.   I'M NOT GOING TO TELL

    14   YOUR EMPLOYERS YOU'RE OFF.
    15                             (JURY EXCUSED)

    16              THE COURT:   WE'LL BE IN RECESS UNTIL 9:30 IN THE
    17   MORNING.

    18                                *     *   *
    19    (TRIAL ADJOURNED TO 9:30 A.M., THURSDAY, AUGUST 26, 2004)
    20                                *     *   *

    21

    22
    23

    24
    25

                                 Page 114
                         Transcript.8.25.04


                                                              127



    1                       C E R T I F I C A T E

    2
    3    UNITED STATES OF AMERICA,
    4    NORTHERN DISTRICT OF GEORGIA:

    5
    6

    7        I, DENNIS J. REIDY, OFFICIAL COURT REPORTER OF THE UNITED
    8    STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA, DO

    9    HEREBY CERTIFY THAT THE FOREGOING 126 PAGES CONSTITUTE A TRUE

    10   TRANSCRIPT OF PROCEEDINGS HAD BEFORE THE SAID COURT, HELD IN
    11   THE CITY OF ROME, GEORGIA, IN THE MATTER THEREIN STATED.

    12   GIVEN ON THIS, THE 25TH DAY OF AUGUST, 2004.

    13

    14
    15

    16

    17

    18
    19                                   ____________________________
                                         DENNIS J. REIDY
    20                                   OFFICIAL COURT REPORTER
                                         NORTHERN DISTRICT OF GEORGIA
    21                                   309 U.S. COURTHOUSE
                                         600 EAST FIRST STREET
    22                                   ROME, GEORGIA 30161
                                         (706) 291-5610
    23

    24
    25






                              Page 115
                         Transcript.8.26.04




    1                IN THE UNITED STATES DISTRICT COURT
                    FOR THE NORTHERN DISTRICT OF GEORGIA
    2                           ROME DIVISION
    3    ----------------------------         CIVIL DOCKET NUMBER
         IN RE: TRI-STATE CREMATORY )              MDL 1467
    4    LITIGATION                  )
         ----------------------------           ROME, GEORGIA
    5                                     THURSDAY, AUGUST 26, 2004
                                                  10:35 A.M.
    6
    7                TRANSCRIPT OF PROCEEDINGS IN CAMERA
                    BEFORE THE HONORABLE HAROLD L. MURPHY,
    8                    UNITED STATES DISTRICT JUDGE

    9
         APPEARANCES:
    10
    11       FOR THE PLAINTIFFS:         ROBERT H. SMALLEY
                                         411 WEST CRAWFORD STREET
    12                                   DALTON, GEORGIA 30720-1105
                                         (706) 278-4499
    13

    14                                   ELIZABETH A. ALEXANDER
                                         EMBARCADERO CENTER WEST
    15                                   275 BATTERY STREET
                                         30TH FLOOR
    16                                   SAN FRANCISCO, CALIFORNIA
                                                        94111-3339
    17                                   (415) 956-1000

    18
                                         KATHRYN BARNETT
    19                                   3319 WEST END AVENUE
                                         SUITE 600
    20                                   NASHVILLE, TENNESSEE
                                                    37203
    21                                   (615) 313-9000

    22
                                         ROBERT M. DARROCH
    23                                   2200 CENTURY PARKWAY, N.E.
                                         TENTH FLOOR
    24                                   ATLANTA, GEORGIA 30345
                                         (404) 248-2866
    25



                                                             2



                               Page 1
                           Transcript.8.26.04
    1                          APPEARANCES, CONT'D.

    2
    3        FOR THE DEFENDANTS:           FRANK E. JENKINS III
                                           JENNIFER J. WALKER
    4                                      15 SOUTH PUBLIC SQUARE
                                           CARTERSVILLE, GEORGIA 30120
    5                                      (770) 387-1373
    6
                                           STUART F. JAMES
    7                                      707 GEORGIA AVENUE
                                           SUITE 401
    8                                      CHATTANOOGA, TENNESSEE
                                                      37402
    9                                      (423) 756-3646
    10
             ALSO PRESENT:                 CLARA MARSH
    11                                     TOMMY RAY BRENT MARSH
                                           LASHEA MARSH
    12                                     CAROL BECHTEL

    13
    14

    15

    16

    17

    18
    19

    20

    21       COURT REPORTER:               DENNIS J. REIDY
                                           309 U.S. DISTRICT COURTHOUSE
    22                                     600 EAST FIRST STREET
                                           ROME, GEORGIA 30161
    23                                     (706) 291-5610

    24
                         PROCEEDINGS RECORDED BY STENOGRAPHY
    25                    TRANSCRIPT PRODUCED BY COMPUTER



                                                               3



    1                         P-R-O-C-E-E-D-I-N-G-S
    2             THE COURT:    WELL, THE RECORD OUGHT TO SHOW WHO ALL

    3    WE HAVE HERE.   MAYBE WE OUGHT TO HAVE EVERYBODY IDENTIFY
                                 Page 2
                          Transcript.8.26.04
    4    THEMSELVES FOR PURPOSES OF THE RECORD.       LET'S START WITH MISS

    5    LASHANA.
    6               MS. LASHEA MARSH:    LASHEA.
    7               THE COURT:    LASHEA.   EXCUSE ME.

    8               MS. LASHEA MARSH:    YES.
    9               THE COURT:    LASHEA MARSH?
    10              MS. LASHEA MARSH:    MARSH, UH-HUH.

    11              MS. CLARA MARSH:    CLARA.

    12              MR. MARSH:    TOMMY RAY BRENT MARSH.
    13              MS. WALKER:    J.J. WALKER.
    14              MR. JAMES:    STUART JAMES, YOUR HONOR.

    15              MR. JENKINS:    FRANK JENKINS.

    16              MS. BARNETT:    KATHRYN BARNETT.
    17              MR. SMALLEY:    ROBERT SMALLEY.

    18              MR. DARROCH:    ROBERT DARROCH.

    19              MS. ALEXANDER:    ELIZABETH ALEXANDER.

    20              MS. BECHTEL:    CAROL BECHTEL.

    21              THE COURT:    GOOD MORNING TO ALL OF YOU.
    22              MS. CLARA MARSH:    GOOD MORNING.

    23              THE COURT:    I HAVE RECEIVED AND REVIEWED THE

    24   PROPOSED ORDER SUBMITTED BY THE PARTIES AND THE SETTLEMENT
    25   AGREEMENT REGARDING CLAIMS AGAINST THE MARSH DEFENDANTS, WHICH



                                                                      4




    1    IS DATED TODAY AND SIGNED BY MR. SMALLEY ON BEHALF OF THE
    2    PLAINTIFF CLASS, MR. JENKINS ON BEHALF OF THE DEFENDANTS,
    3    SIGNED BY MISS CLARA MARSH AND BY MR. BRENT MARSH.

    4               YOU WANT TO SPEAK TO THIS, MR. SMALLEY OR MISS
    5    BARNETT OR --
    6               MR. SMALLEY:    YES, YOUR HONOR.     THANK YOU.   AS THE
                                   Page 3
                          Transcript.8.26.04
    7    COURT KNEW, YESTERDAY WE WERE PRESENTED WITH A PROPOSAL OR

    8    COUNTER PROPOSAL, AND WE WORKED FOR MANY HOURS YESTERDAY TO
    9    TRY TO COME TO THIS AGREEMENT WITH THE MARSH DEFENDANTS AND
    10   COUNSEL.   AS I KNOW, THE COURT HAS ALREADY READ THE AGREEMENT.

    11   WE WERE PARTICULARLY CONCERNED ABOUT REINSTATING THE PROPERTY
    12   TERMS THAT WE HAD ORIGINALLY TALKED ABOUT WITH YOUR HONOR BACK
    13   IN MARCH, AND THOSE ARE ESSENTIALLY THE SAME AS THOSE TERMS

    14   WERE.

    15              AS THE COURT IS WELL AWARE, THE SITUATION IS VASTLY
    16   DIFFERENT THAN WE HAD IN MARCH WITH RESPECT TO POTENTIAL
    17   INSURANCE COVERAGE.     AND I KNOW THE COURT'S AWARE OF WHAT'S

    18   GONE ON IN WALKER COUNTY, SO WE FELT AS THOUGH THE RESPONSIBLE

    19   THING TO DO, IN LIGHT OF ALL THOSE CIRCUMSTANCES, WAS TO TRY
    20   TO RESOLVE THE CLAIMS THAT WE HAVE IN THIS COURT IN THIS

    21   MANNER, IN A MANNER OF A CONSENT JUDGMENT IN THE AMOUNT OF 80

    22   MILLION DOLLARS, AND THEN PROCEED IN ANY WAY THAT'S NECESSARY

    23   THEREAFTER BUT TO LIMIT ANY EXPOSURE OR COLLECTION EFFORTS TO

    24   THE MARSH DEFENDANTS OR TO THE INSURANCE PROCEEDS ONLY.
    25              THE COURT:   OTHER THAN THE PROPERTY --



                                                                5




    1               MR. SMALLEY:   OTHER THAN THE PROPERTY ISSUES.
    2               THE COURT:   -- AGREEMENT.

    3               MR. SMALLEY:   CORRECT, YOUR HONOR.
    4               THE COURT:   ALL RIGHT.

    5               MR. SMALLEY:   OBVIOUSLY, WE TOOK INTO ACCOUNT A LOT
    6    OF THE INFORMATION WE GAINED LAST TIME WITH RESPECT TO THE
    7    SETTLEMENT AND THE MARSHES' FINANCIAL CONDITION, AND WE SIMPLY

    8    BELIEVE THAT IT WAS THE MOST RESPONSIBLE WAY TO TRY TO RESOLVE
    9    THESE CLAIMS IN THIS COURT.
                                Page 4
                          Transcript.8.26.04
    10             THE COURT:   MR. JAMES OR MR. JENKINS, YOU WANT TO --

    11             MR. JENKINS:   WHY DON'T YOU GO AHEAD.
    12             MR. JAMES:   YOUR HONOR, MR. SMALLEY HAS THE INITIAL
    13   -- OR THE CONCEPT OF THE AGREEMENT CORRECT.   YOU KNOW, WE WERE

    14   CONCERNED, SO THE COURT'S AWARE, THAT THIS JUDGMENT NOT BE
    15   COLLECTABLE AGAINST ANY OF THE MARSH DEFENDANTS, AND I THINK
    16   THE AGREEMENT ADEQUATELY PROVIDES FOR THAT PROTECTION, YOUR

    17   HONOR.   AND IT IS A JUDGMENT THAT WE ARE AWARE THAT THE

    18   PLAINTIFFS WILL PURSUE IN OTHER FORUMS OUTSIDE OF THIS COURT,
    19   NAMELY, IN WALKER COUNTY, GEORGIA.    I HAVE DISCUSSED THAT
    20   PROVISION WITH MRS. MARSH AND MR. BRENT MARSH, AND THEY HAVE

    21   CONSENTED TO THAT CONSENT JUDGMENT.   OF COURSE, MR. SMALLEY

    22   AND I HAVE A LITTLE BIT OF WORK TO DO ON DRAFTING THAT CONSENT
    23   JUDGMENT AND OTHER PLEADINGS.

    24             THE PROPERTY AGREEMENT, AS MR. SMALLEY SAID, IS

    25   ESSENTIALLY THE SAME AS IT WAS IN MARCH WHEN WE ANNOUNCED THE



                                                               6




    1    SETTLEMENT, YOUR HONOR, AND THEY HAVE BEEN GRACIOUS TO -- I
    2    THINK THERE WAS ONE THING THAT'S MORE CLEAR NOW:   THAT THE

    3    MARSHES SHALL NOT INCUR ANY EXPENSE FOR THE REMOVAL OF THE
    4    BUILDINGS ON THE PROPERTY, AND THAT SHALL BE BORNE BY THE

    5    CLASS, WHICH WAS AN EVENT THAT WAS IMPORTANT TO US.
    6              WE ALSO, AS THE COURT IS AWARE, HAVE REINSTATED
    7    MRS. MARSH AS A DEFENDANT FOR SETTLEMENT PURPOSES ONLY, AND I

    8    WANT TO MAKE SURE THE RECORD IS CLEAR ON THAT, AND THAT IN THE
    9    EVENT SOMETHING OCCURS THAT THE SETTLEMENT IS NOT APPROVED BY
    10   THIS COURT, MRS. MARSH WILL NOT -- WE HAVE NOT AGREED TO

    11   REINSTATE MRS. MARSH AS A DEFENDANT IN THE ACTION, AND THE
    12   ACTION RETURN TO ITS CURRENT STATE.
                                Page 5
                           Transcript.8.26.04
    13             THE COURT:   I UNDERSTAND.   YOU WANT TO DO THAT FOR

    14   THE LIMITED PURPOSE OF SETTLEMENT.
    15             MR. JAMES:   SETTLEMENT, YES, YOUR HONOR.
    16             YOUR HONOR, ALSO I HAVE BEEN GIVEN SOME LIMITED

    17   AUTHORITY TO DISCUSS -- I WOULD LIKE THE COURT TO UNDERSTAND
    18   THE SCOPE AND THE EFFORTS THAT WERE UNDERTAKEN BY THE PARTIES
    19   LAST NIGHT IN TERMS OF THIS SETTLEMENT.

    20             YOUR HONOR, IN CONJUNCTION WITH THIS SETTLEMENT, WE

    21   WERE FORTUNATE ENOUGH TO HAVE MR. BUZZ FRANKLIN AND MR. KEN
    22   POSTON COME UP TO -- OR COME -- YEAH, COME DOWN TO ROME,
    23   GEORGIA, AND THEY ENTERED INTO NEGOTIATIONS REGARDING THE

    24   CRIMINAL CASES.   AND THIS WAS A REALLY UNUSUAL EVENT FOR ME,

    25   AND I WANT THE COURT TO BE AWARE THAT MR. SMALLEY WAS



                                                               7




    1    EXTREMELY GRACIOUS AND EXTREMELY COOPERATIVE ON BEHALF OF THE

    2    PLAINTIFFS' COMMITTEE.   AND WE DID NOT CONTROL THE
    3    NEGOTIATIONS BETWEEN MR. MARSH, HIS ATTORNEY, AND

    4    MR. FRANKLIN, BUT IT WAS AMAZING THAT THAT EVENT OCCURRED,

    5    YOUR HONOR.
    6             ALSO, I WOULD LIKE TO COMPLIMENT MISS BECHTEL, TOO,

    7    YOUR HONOR.   MISS BECHTEL AND I HAD SOME DISCUSSIONS, AND IT
    8    WAS HIGHLY UNUSUAL THAT MISS BECHTEL PARTICIPATED IN THE
    9    SETTLEMENT ACTIVELY, YOUR HONOR.

    10            I WILL ANNOUNCE TO THE COURT I CANNOT DISCLOSE THE
    11   TERMS OF THE PLEA BARGAIN, BUT A CONDITIONAL PLEA BARGAIN HAS
    12   BEEN REACHED BETWEEN MR. MARSH AND THE DISTRICT ATTORNEY.    WE

    13   OF COURSE ARE KEEPING THAT CONFIDENTIAL AT THIS TIME, YOUR

    14   HONOR.
    15            THE COURT:    CERTAINLY.
                                 Page 6
                          Transcript.8.26.04
    16              MR. JAMES:   WE THINK THAT THAT IS SIGNIFICANT

    17   CONSIDERATION FOR THIS AGREEMENT, YOUR HONOR, AND THAT IT
    18   MOTIVATED MRS. MARSH LARGELY THAT WE COULD -- THIS IS NOT A
    19   GLOBAL RESOLUTION, AS WE DISCUSSED LAST TIME.      THIS IS A

    20   SETTLEMENT OF THE CLASS ONLY, BUT IT ASSISTED US GREATLY IN
    21   WORKING WITH THE PLAINTIFFS' COMMITTEE.    THE FINAL COMMENT I
    22   WOULD HAVE ON THAT SUBJECT IS THAT THIS IS A SETTLEMENT, AS

    23   THE COURT KNOWS, FOR THIS CLASS ACTION ONLY.

    24              ALSO, IN CONSIDERATION OF THE SETTLEMENT, ANY OTHER
    25   CLAIMS THAT HAVE BEEN FILED AGAINST MRS. MARSH INDEPENDENT OF



                                                                 8




    1    THIS ACTION, THERE IS ONE IN WALKER COUNTY THAT NEEDED TO BE

    2    FILED.   THAT WILL BE DISMISSED UPON APPROVAL OF THIS
    3    AGREEMENT.

    4              MR. SMALLEY:   FINAL APPROVAL.

    5              MR. JAMES:    FINAL APPROVAL, YEAH.   AND THIS WILL END
    6    THE CLASS ACTION ITSELF.

    7              THE COURT:    THAT IS SOMETHING OVER WHICH I HAVE NO
    8    JURISDICTION, AUTHORITY.
    9              MR. JAMES:    THAT IS CORRECT, YOUR HONOR.   THAT IS

    10   CORRECT, YOUR HONOR, BUT WE ARE, ON BEHALF OF THE MARSH FAMILY
    11   -- AND MISS LASHEA MARSH IS HERE.     SHE'S VERY WELL AWARE OF
    12   THE AGREEMENT, ALTHOUGH SHE'S NOT A PARTY.      ON BEHALF OF THE

    13   MARSH FAMILY, WE THINK IT'S A GOOD SETTLEMENT AGREEMENT, AND

    14   WE THANK THE PLAINTIFFS' COMMITTEE AND PARTICULARLY MISS
    15   BECHTEL FOR TAKING AN ACTIVE ROLE IN THIS.      I THINK THAT'S ALL

    16   I HAVE TO SAY ABOUT IT AT THIS TIME, YOUR HONOR.

    17             MR. JENKINS:   I'VE GOT A COUPLE OF THINGS I WANTED
    18   TO MENTION TO THE COURT. ONE IS TO REITERATE THAT A GREAT
                                Page 7
                          Transcript.8.26.04
    19   DEAL OF THE MOTIVATION FOR ENTERING IN THIS STEMS FROM THE

    20   CLASS COUNSEL AND CLASS REPRESENTATIVES' WILLINGNESS TO WORK
    21   TOWARD REACHING A RESOLUTION OF THE CRIMINAL PROSECUTION, AND
    22   THAT MADE THIS AGREEMENT POSSIBLE, AND WE APPRECIATE THEIR

    23   EFFORTS.   AND A PLEA BARGAIN WAS WORKED OUT.
    24              WE KNOW THAT A PLEA BARGAIN IS ONLY TENTATIVE.    IT
    25   HAS TO BE APPROVED BY THE TRIAL COURT OR THE TRIAL JUDGE IN



                                                               9




    1    THE CRIMINAL PROCEEDINGS.   WE HAVE GOTTEN ASSURANCES FROM

    2    CLASS COUNSEL THAT THEY WILL ASSIST IN ANY REASONABLE WAY -- I
    3    BELIEVE I CAN STATE IT THAT WAY -- IN ANY REASONABLE WAY IN

    4    ASSISTING IN BRINGING ABOUT OR ENCOURAGING THE COURT OR

    5    ADVISING, THAT IS, THE TRIAL COURT, THE CRIMINAL TRIAL COURT,
    6    OF THESE PROCEEDINGS AND THE RESOLUTION OF THIS CASE.

    7               THE GENERAL ATTITUDE THAT'S BEEN EXPRESSED BY THE
    8    CLASS:   THAT THEY WISH TO HAVE THIS OVER, THAT THE STRONG

    9    SENSE OF VINDICTIVENESS OR WHATEVER MAY HAVE ARISEN FROM THESE

    10   ACTS AT TRI-STATE NO LONGER SEEM TO WARRANT EXTENDED, EXTENDED
    11   PRISON SENTENCE AND SO FORTH FOR BRENT MARSH, AND SO WE

    12   UNDERSTAND THAT THEY WILL BE ASSISTING IN WHATEVER WAY
    13   REASONABLE TO ENCOURAGE THE CRIMINAL COURT TO ACCEPT THE PLEA
    14   BARGAIN THAT'S BEEN REACHED.

    15              MR. JAMES:   YOUR HONOR, MR. SMALLEY IS -- AND I KNOW
    16   THAT HE'S NOT WANTING TO SPEAK TO CERTAIN ISSUES TODAY ON THIS
    17   ISSUE, AND HE -- BUT I MUST SAY THAT MR. SMALLEY HAS BEEN

    18   EXCEPTIONAL IN ASSISTING US IN THIS REGARD, AND I THINK THAT
    19   MISS BARNETT ALSO HAS BEEN INSTRUMENTAL IN ASSISTING US IN
    20   THIS REGARD.   THERE'S A LOT OF MOTIVATION.

    21              MISS BECHTEL EXPLAINED TO ME -- AND YOU CAN CORRECT
                                 Page 8
                           Transcript.8.26.04
    22   ME IF I GET IT WRONG, CAROL, OKAY?

    23              MISS BECHTEL EXPLAINED TO ME LAST NIGHT HER
    24   MOTIVATIONS.    AND, YOU KNOW, MR. SMALLEY AND I HAD SOME
    25   DISCUSSIONS ABOUT HOW THE CLASS FEELS ABOUT THE LITIGATION,



                                                                10



    1    AND THE PROTRACTED LITIGATION.   MR. SMALLEY AND I DISCUSSED

    2    THERE ARE CERTAIN ASPECTS OF THE PLEA BARGAIN WE CAN'T
    3    CONTROL.   WE CAN'T CONTROL WHAT JUDGE BODIFORD DOES, WE CAN'T

    4    CONTROL WHAT BUZZ FRANKLIN DOES, BUT MR. FRANKLIN AND I HAD A

    5    BRIEF DISCUSSION BEFORE HE LEFT LAST NIGHT.    HE IS OPTIMISTIC.
    6               I DO WANT TO MAKE THE COURT AWARE THERE IS AN ISSUE

    7    IN TENNESSEE THAT THEY ARE WORKING OUT, TOO, BUT, YOU KNOW,
    8    CLASS COUNSEL'S BEEN EXCEPTIONAL IN ASSISTING US WITHIN THE

    9    ETHICAL RULES REQUIRED, AND I THINK THAT MR. SMALLEY AND I --

    10   I THINK MR. SMALLEY HAS BEEN HIGHLY ETHICAL IN THAT REGARD, IN
    11   REGARDS TO THE CRIMINAL CASE.    IT CERTAINLY, YOUR HONOR, IS

    12   SOMETHING THAT I THINK THE CLASS AS A WHOLE SHOULD BE

    13   COMMENDED ON.

    14              I'VE BEEN EXTREMELY IMPRESSED THE WAY CLASS COUNSEL
    15   MADE SOME SUGGESTIONS TO ME AND TO MR. JENKINS REGARDING A

    16   GLOBAL RESOLUTION IN THIS RESPECT.     AND THERE IS NO WAY WE CAN

    17   CERTAINLY CONTROL EVERY CLASS MEMBER.    WE UNDERSTAND THAT; THE
    18   MARSHES UNDERSTAND THAT.   THERE MAY BE PEOPLE WHO OBJECT TO
    19   THIS SETTLEMENT, AND THERE MAY BE PEOPLE WHO COME FORWARD, AND

    20   WE CAN'T CONTROL THOSE.    AND THEN THERE'S LITIGATION IN
    21   BRADLEY COUNTY THAT WE HAVE NO CONTROL OVER ALSO.    BUT THESE
    22   PEOPLE HAVE DONE AN EXCEPTIONAL JOB IN REACHING A SETTLEMENT,

    23   AND WHEN MR. SMALLEY AND I QUIT AT I THINK 10:30 LAST NIGHT,
    24   WE HAD A GOOD WORKING AGREEMENT, AND I THINK OUR CLIENTS ARE
                                Page 9
                           Transcript.8.26.04
    25   EXTREMELY HAPPY WITH THE RESULT THAT HAS BEEN OBTAINED, YOUR



                                                                11



    1    HONOR.

    2               THE COURT:   WELL, I WANT TO COMMEND ALL OF YOU ON
    3    THE HARD WORK YOU'VE DONE IN TRYING TO COME UP WITH A

    4    SETTLEMENT AND IN ARRIVING AT THE SETTLEMENT YOU'RE PROPOSING
    5    TO THE COURT.   FROM THE COURT'S STANDPOINT, I'M HAPPY THAT
    6    MISS BECHTEL PARTICIPATED IN THE CONFERENCE.

    7               MR. JAMES:   EXTREMELY DIPLOMATIC WOMAN, YOUR HONOR,
    8    EXTREMELY DIPLOMATIC.

    9               THE COURT:   WELL --

    10              MR. JAMES:   IF I MAY, YOUR HONOR, THERE'S ONE OTHER
    11   POINT THAT MRS. MARSH REMINDED ME OF AND I DON'T WANT TO

    12   FORGET.   IF I MAY INTERRUPT THE COURT JUST FOR A MOMENT.

    13              ONE MORE POINT THAT MRS. MARSH REMINDED:   THAT THE

    14   D.A. AND MR. POSTON ARE NOT REVEALING THE CONTENTS OF ANY PLEA
    15   AGREEMENT, AND THAT'S WHY I'M NOT DOING IT OR DISCUSSING THAT

    16   A PLEA AGREEMENT HAS BEEN MADE.   MR. SMALLEY AND I ACTUALLY

    17   HAVE NO INDICATION IN THE RECORD THAT THAT PLEA AGREEMENT IS

    18   MADE.    THIS IS JUST FOR THE COURT'S BENEFIT SO THE COURT
    19   UNDERSTANDS WHAT'S HAPPENING.

    20              THE COURT:   I UNDERSTAND.   I APPRECIATE YOUR GIVING
    21   ME INFORMATION ON THE TOTAL ACCOMPLISHMENT THAT HAS OCCURRED,
    22   AND I CLEARLY UNDERSTAND REFERENCE TO THE CRIMINAL CASE

    23   ISSUES.   I DON'T NEED TO KNOW ANYTHING ABOUT IT, DON'T WANT TO
    24   KNOW ANYTHING ABOUT IT AT THIS POINT, BUT THIS SETTLEMENT IS
    25   UNDERSTOOD TO BE APPROPRIATE AND AGREED TO, REGARDLESS OF WHAT



                                                                12
                                 Page 10
                           Transcript.8.26.04



    1    HAPPENS IN THE STATE COURT SYSTEM.

    2                MR. JAMES:   THAT'S CORRECT, YOUR HONOR, YES.
    3                THE COURT:   ALSO APPRECIATE THE EFFORTS MADE BY THE

    4    MARSH FAMILY, TOO.   I KNOW IT TOOK EVERYBODY TO GET THIS
    5    RESOLVED.
    6                I NEED TO ASK A QUESTION OR TWO FOR CLARITY ON THE

    7    RECORD.   ON PAGE 19, IN PARAGRAPH B, IT SAYS:    IN ADDITION,
    8    THE ESTATE OF TOMMY RAY MARSH SHALL CONVEY IN FEE SIMPLE TO

    9    THE CLASS MEMBERS ITS ONE-HALF UNDIVIDED INTEREST IN THE REAL

    10   PROPERTY KNOWN TO THE PARTIES AS THE CHICKAMAUGA PROPERTY.
    11               WHAT IS THE CHICKAMAUGA PROPERTY?

    12               MR. JAMES:   THERE ARE TWO SMALL PARCELS OF PROPERTY.

    13   THIS WAS DISCUSSED ON MARCH 11TH.      THERE ARE TWO SMALL PARCELS

    14   OF PROPERTY THAT ARE OWNED BY MR. MARSH.
    15               THE COURT:   WHEN YOU SAY MR. MARSH --

    16               MR. JAMES:   TOMMY RAY MARSH.

    17               THE COURT:   YES.

    18               MR. JAMES:   THE LATE MR. MARSH, YEAH, THAT WE
    19   DISCUSSED IN THE MARCH 11TH SETTLEMENT, AND THOSE ARE THE

    20   PROPERTIES WE'RE REFERRING TO, YOUR HONOR.

    21               THE COURT:   ALL RIGHT.   WILL THAT PUT TOTAL TITLE
    22   UNDER THE TERMS OF THIS AGREEMENT?

    23               MR. JAMES:   NO, IT WILL NOT.   IT WILL NOT.   THERE
    24   ARE OTHER HEIRS THAT HAVE TITLE TO THE PROPERTY.
    25               MR. SMALLEY:    IT'S AN UNDIVIDED ONE-HALF INTEREST AS



                                                                    13




    1    WE UNDERSTAND IT, YOUR HONOR.

                                    Page 11
                          Transcript.8.26.04
    2              THE COURT: ALL RIGHT.
    3              MR. JAMES:   YEAH, YEAH.
    4              THE COURT:   NOW, THE ONLY OTHER REAL ESTATE INVOLVED

    5    IN THIS SETTLEMENT IS WHAT WE CALL THE TRI-STATE CREMATORY
    6    SITE.   AM I RIGHT ABOUT THAT?

    7              MR. JAMES:   THE 16 ACRES THAT THE SITE IS ON, YES,
    8    YOUR HONOR.
    9              THE COURT:   ALL RIGHT.    WHEN YOU DEAL WITH REAL

    10   ESTATE AND YOU DEAL IN GENERALITIES, YOU HAVE SOME PROBLEMS.
    11   WHEN YOU TALK HERE IN THIS AGREEMENT ABOUT SETTING ASIDE A

    12   CERTAIN AREA, AND I DON'T KNOW IF YOU USED THE TERM PERPETUITY

    13   OR NOT, BUT THAT'S BASICALLY WHAT IT MEANS, THE AREA WHERE
    14   BODIES WERE FOUND.

    15             MR. JAMES:   THAT'S CORRECT, YOUR HONOR, YES.

    16             THE COURT:   NOW, IN THE EVENT THAT CANNOT BE AGREED

    17   UPON BY THE PARTIES, IS IT STIPULATED AND AGREED BY ALL
    18   PARTIES THAT THE COURT CAN MAKE THAT DETERMINATION?

    19             MR. JAMES:   YES, YOUR HONOR.   THAT'S THE INTENT OF

    20   THE AGREEMENT.

    21             THE COURT:   FOR PURPOSES OF ACQUIRING A DEED OR AN
    22   ORDER OF SPECIFIC PERFORMANCE.

    23             MR. JAMES:   YES, THERE IS.   AND, YOU KNOW, YOUR

    24   HONOR, WE'VE ALREADY GOT A MAP THAT WE'VE DRAWN UP UNDER THE
    25   OLD AGREEMENT THAT WE WILL BE FILING WITH THE COURT, AND I



                                                                14




    1    THINK -- I DON'T KNOW.
    2              MR. SMALLEY:    YES, YOUR HONOR.   WE WOULD STIPULATE

    3    THAT THE COURT WOULD RESOLVE THE ISSUE.
    4              MR. JAMES:   THE COURT WOULD RESOLVE ANY ISSUES THAT

                                  Page 12
                          Transcript.8.26.04
    5    ARE DISPUTED, YES, YOUR HONOR.
    6              THE COURT:   AND IS IT ALSO AGREEABLE THAT, IF
    7    APPROPRIATE, THE COURT MAY ENTER AN ORDER WITH SPECIFIC

    8    REFERENCE TO THE 16 ACRES OF LAND, PUTTING INTO THE ORDER, AS
    9    IT APPLIES TO THE LAND, THE RESTRICTIONS ON THE PROPERTY --

    10             MR. JAMES:   THAT WOULD BE TRUE, YOUR HONOR.
    11             THE COURT:   -- PUT IN THIS AGREEMENT?
    12             MR. JAMES:   YES.

    13             MS. CLARA MARSH:    MAY I ASK A QUESTION?
    14             THE COURT:   YES, YOU MAY.

    15             MS. CLARA MARSH:    WHEN YOU SAY THE 16 ACRES, I

    16   THOUGHT WE WERE TALKING ABOUT THE CREMATORY SITE.
    17             MR. JAMES:   YOUR HONOR, SHE'S WORRIED ABOUT

    18   DISTINGUISHING BETWEEN THE 16 ACRES.     SHE DOESN'T WANT TO LOSE

    19   HER HOUSE, YOUR HONOR.

    20             THE COURT:   OH, NO.     WELL, I UNDERSTAND.   AS THE
    21   COURT, I UNDERSTAND THAT THIS IS NOT GOING TO --

    22             MS. CLARA MARSH:    I THOUGHT I UNDERSTOOD, BUT I

    23   WANTED TO BE SURE.

    24             THE COURT:   -- PUT YOU OUT OF YOUR HOUSE OR CHANGE
    25   THE STATUS AS FAR AS YOU'RE CONCERNED WITH YOUR HOUSE.



                                                                  15




    1              MR. JAMES:   FOR THE RECORD, THERE IS NO INTENT
    2    BETWEEN THE PARTIES FOR THAT TO OCCUR, MRS. MARSH, AND I THINK

    3    THAT WE'RE CLEAR ON THAT POINT.
    4              THE COURT:   I'M TALKING ABOUT THE MECHANICS THAT MAY
    5    BE NECESSARY TO --

    6              MR. JENKINS:    WELL, I WOULD ASSUME --
    7              THE COURT:   -- CONSUMMATE.

                                  Page 13
                          Transcript.8.26.04
    8              MR. JENKINS: I WOULD ASSUME, YOUR HONOR, THAT IN
    9    CASE THERE IS A DISPUTE, YOU WOULD MAKE A DETERMINATION OF
    10   WHERE BODIES WERE FOUND, AND THAT WOULD BE THE AREA THAT WOULD

    11   BE PART OF THE --
    12             THE COURT:   YES, THAT'S WHAT I'M INQUIRING ABOUT.

    13             MR. JAMES:   OKAY.   SHE'S GOT IT NOW, YOUR HONOR.
    14             THE COURT:   AS TO WHICH IS IN PERPETUITY.
    15             MR. JAMES:   THAT'S CORRECT.

    16             THE COURT:   NOW, THERE'S SOME LIMITATION FOR
    17   COMMERCIAL PURPOSES ON THE BALANCE OF THE 16 ACRES; AND YOU

    18   UNDERSTAND THAT, MRS. MARSH?      THEY DON'T WANT TO -- IT WOULD

    19   PROHIBIT THE USE OF THE PROPERTY FOR --
    20             MS. CLARA MARSH:     BUSINESS AND WHATEVER.

    21             THE COURT:   -- BUSINESS.

    22             MR. JAMES:   IT'S A RESIDENTIAL PIECE OF PROPERTY,

    23   YOUR HONOR, AND IT'S GOING TO BE MAINTAINED AS SUCH.
    24             AM I CORRECT?

    25             MS. CLARA MARSH:     (INDICATES YES).



                                                                  16




    1             THE COURT:    ALL RIGHT, ALL RIGHT.      THEN EVERYBODY
    2    UNDERSTANDS THEN THAT WE PUT MRS. MARSH, MISS CLARA MARSH,

    3    BACK IN THIS CASE FOR SETTLEMENT PURPOSES.
    4             MR. JAMES:    YES, YOUR HONOR.    THAT IS OUR INTENT.
    5             THE COURT:    ANYONE ELSE HAVE ANY QUESTION OR

    6    ANYTHING WE NEED TO PUT INTO THIS CONFERENCE RECORD?
    7             MR. JENKINS:     ONE THING I WANTED TO ADD.    WE
    8    INTERLINED A SECTION IN THERE THAT I'M SURE THE COURT NOTICED.

    9             THE COURT:    I NOTICED IT, AND I THOUGHT IT WAS WELL
    10   DONE, MR. JENKINS.

                                 Page 14
                          Transcript.8.26.04
    11             MR. JENKINS: YOUR HONOR IS AWARE OF THE AGREEMENT
    12   BETWEEN GEORGIA FARM BUREAU AND CLARA MARSH AND BRENT MARSH
    13   AND THE ESTATE ALSO OF RAY MARSH.

    14             THE COURT:   YES.
    15             MR. JENKINS:    AND WE WANTED TO MAKE IT ABUNDANTLY

    16   CLEAR THAT, ALTHOUGH WE WOULDN'T OPENLY OR IN ANY WAY THWART
    17   THEIR EFFORTS TO COLLECT THE INSURANCE, THAT IT WAS CLEAR THAT
    18   WE WERE GOING TO DEFEND THAT AGREEMENT, TAKE WHATEVER ACTION,

    19   LEGAL ACTION, MAY BE NECESSARY TO DEFEND ANY AGREEMENT BETWEEN
    20   THE MARSHES AND GEORGIA FARM BUREAU.

    21             THE COURT:   AND ANY -- ALL RIGHT.

    22             MR. JAMES:   AND ANY OTHER ATTACK ON -- ANY ATTACK ON
    23   THE AGREEMENT, YOUR HONOR.

    24             MR. JENKINS:    ANYTHING THAT WOULD INTERFERE WITH THE

    25   RIGHTS OF THE MARSHES THEMSELVES.      BUT WE CERTAINLY DON'T --



                                                                 17




    1    WOULDN'T INTERFERE OTHERWISE WITH THEIR PURSUIT OF INSURANCE
    2    PROCEEDS EXCEPT TO THE EXTENT --

    3             THE COURT:    ALL RIGHT.     ONE OTHER -- GO AHEAD.
    4             MR. JENKINS:     EXCEPT TO THE EXTENT THAT IT WOULD
    5    AFFECT THE RIGHTS AND INTEREST OF THE MARSHES.

    6             THE COURT:    ALL RIGHT.     ONE OTHER CLARIFICATION WE
    7    BETTER HAVE ON THE RECORD; AND THAT IS, THE AGREEMENT THAT THE
    8    JUDGMENT SHALL BE COLLECTED ONLY OUT OF INSURANCE PROCEEDS HAS

    9    NO APPLICATION TO THE SETTLEMENT FUNDS SET UP WITH THE
    10   MARSHES, A TRUST FUND OR MAYBE TWO TRUST FUNDS.

    11            MR. JENKINS:     YES, SIR.
    12            THE COURT:    IT IS UNDERSTOOD BY PLAINTIFFS THAT

    13   EFFORTS TO, AND THE RIGHT TO, ENFORCE AND COLLECT OUT OF

                                  Page 15
                          Transcript.8.26.04
    14   INSURANCE DOES NOT APPLY TO THOSE TRUST FUNDS; IS THAT
    15   CORRECT?
    16              MR. JENKINS:    THAT IS OUR --

    17              MR. JAMES:   THAT IS CORRECT.
    18              MR. JENKINS:    THAT IS OUR UNDERSTANDING.

    19              MR. DARROCH:    YOUR HONOR, FROM OUR STANDPOINT, I
    20   THINK THAT IS OUR UNDERSTANDING AS WELL.    THE AGREEMENT WITH
    21   GEORGIA FARM BUREAU HAD THREE SEPARATE PROVISIONS.      TWO OF

    22   THOSE PROVISIONS PROVIDED FOR THE CREATION OF TRUSTS.     THOSE
    23   WERE NOT THINGS THAT WOULD BE A TYPICAL BENEFIT UNDER AN

    24   INSURANCE POLICY, SO WE DO NOT HAVE ANY INTENTION OF TRYING TO

    25   PURSUE ANYTHING WITH REGARD EITHER OF THOSE TRUSTS.



                                                                 18




    1               ALSO SET UP IN THERE WAS AN AGREEMENT TO PAY THE --
    2    FOR LACK OF A BETTER WORD, THE DEFENSE COSTS OF THE VARIOUS

    3    CASES PENDING WHEREVER THEY MAY BE PENDING AGAINST THE
    4    MARSHES.   WE DO NOT HAVE ANY INTENTION TO INTERFERE WITH THAT

    5    AGREEMENT.

    6               THE COURT:   ALL RIGHT.
    7               MR. DARROCH:    WE DO VERY STRONGLY BELIEVE THAT THERE
    8    IS COVERAGE UNDER THE POLICY, A DUTY ON GEORGIA FARM BUREAU TO

    9    INDEMNIFY AND SATISFY THIS JUDGMENT AND THAT WE DO INTEND TO
    10   FIGHT IN WALKER COUNTY AND ELSEWHERE, PRIMARILY WITH GEORGIA

    11   FARM BUREAU.   TO THE EXTENT THAT THE MARSHES REMAIN A PARTY TO
    12   A DECLARATORY JUDGMENT ACTION IN WALKER COUNTY, WE WOULD BE

    13   INVOLVED IN THE SAME CASE.     OBVIOUSLY, THEY WILL BE ADVOCATING
    14   THE POSITION THAT THOSE TRUSTS ARE ENFORCEABLE.
    15              SO THE COURT'S CLEAR ON THE RECORD, TOO, GEORGIA

    16   FARM BUREAU NEVER SIGNED THAT AGREEMENT, SO I WOULD NOT BE

                                   Page 16
                          Transcript.8.26.04
    17   SURPRISED, SO THAT EVERYBODY KNOWS, IF GEORGIA FARM BUREAU
    18   MIGHT HAVE SOME RESERVATIONS ABOUT THAT AGREEMENT AS WELL WHEN
    19   THE TIME COMES SINCE WE DON'T HAVE A COPY THEY EVER SIGNED,

    20   BUT THAT'S BETWEEN THE MARSHES AND GEORGIA FARM BUREAU.       WE'LL
    21   HAVE OUR FIGHT WITH GEORGIA FARM BUREAU.      PERHAPS WE CAN BE

    22   ALLIES AGAINST GEORGIA FARM BUREAU IN SOME WAYS, TOO.
    23               THE COURT:   WELL, I JUST WANTED TO BE CLEAR ON THE
    24   RECORD --

    25               MR. JAMES:   YOU ARE CLEAR ON THE RECORD, YOUR HONOR.



                                                                  19




    1                THE COURT:   -- FOR THE BENEFIT OF ALL THE PARTIES
    2    AND TO PREVENT ANY FURTHER ISSUES DOWN HERE FOR THIS COURT.

    3                MR. JAMES:   THE COURT HAS MADE THE RECORD VERY
    4    CLEAR, YOUR HONOR, AND WE APPRECIATE IT.

    5                THE COURT:   ALL RIGHT.   ALL RIGHT.   ANYTHING ELSE WE

    6    NEED TO SPEAK TO?
    7                MS. BARNETT:    NO, SIR, YOUR HONOR.

    8                MR. JAMES:   I THINK WE'VE COVERED IT ALL, YOUR

    9    HONOR.
    10               THE COURT:   LET ME ASK THE LAY PEOPLE, MISS BECHTEL

    11   AND THE MARSH FAMILY.      STILL HAPPY WITH WHAT -- WELL, I KNOW
    12   YOU'RE NOT HAPPY, BUT IS IT SATISFACTORY NOW THAT I GO AHEAD

    13   AND APPROVE THIS?
    14               MS. CLARA MARSH:     YOUR HONOR, I WOULD APPRECIATE YOU
    15   DOING THAT.

    16               THE COURT:   ALL RIGHT.
    17               MS. CLARA MARSH:     AND I WANT TO, IF I MAY, AND MAY I
    18   JUST HAVE A SECOND TO SAY THANK YOU --

    19               THE COURT:   SURE.

                                    Page 17
                           Transcript.8.26.04
    20              MS. CLARA MARSH: -- TO YOU, THE COURT PERSONNEL,
    21   THE PLAINTIFFS' ATTORNEYS, AND ESPECIALLY TO MISS BECHTEL.
    22   I'D LIKE YOU TO KNOW, JUDGE, THAT MISS BECHTEL IS FIRST

    23   CLASS --
    24              THE COURT:    THAT'S NICE.

    25              MS. CLARA MARSH:    -- WHEN IT COMES TO WOMANHOOD,



                                                                20



    1    CHRISTIAN WOMANHOOD --

    2               THE COURT:   THAT'S NICE.
    3               MS. CLARA MARSH:    -- AND PLAYED A SIGNIFICANT PART.

    4    AS A MATTER OF FACT, PUBLICLY I GAVE HER CREDIT FOR HAVING

    5    BROUGHT US TO THE TABLE.    AGAIN, I WANT TO THANK YOU.
    6               AND THANK YOU.

    7               THE COURT:   THANK YOU, MISS MARSH, FOR WHAT YOU'VE
    8    SAID.

    9               THIS IS THE 26TH?

    10              MR. JAMES:   YES, YOUR HONOR, IT IS.
    11              THE COURT:   WELL, ORALLY, RATHER THAN JUST PUTTING

    12   IT ON PAPER, AS THE ORDER SAYS, THE COURT IS INTIMATELY

    13   FAMILIAR WITH THIS CASE, AND HAVING READ THE SETTLEMENT
    14   AGREEMENT, AND BEING VERY, VERY FAMILIAR WITH ALL THE PROBLEMS

    15   AND ALL THE DIFFICULTIES AND THE VALUE OF RESOLVING THIS
    16   LITIGATION, I CERTAINLY THINK THIS IS AN APPROPRIATE
    17   SETTLEMENT AND AN APPROPRIATE WAY TO RESOLVE MATTERS PENDING

    18   BEFORE THE COURT.
    19              I COMMEND THE PARTIES AND THE LAWYERS IN COMING UP
    20   WITH THIS SOLUTION.     FROM MY STANDPOINT AS THE COURT, I WAS AT

    21   A LOSS TO KNOW HOW YOU MIGHT HAVE COME UP WITH A SETTLEMENT,

    22   SO I'M ALWAYS IMPRESSED WITH THE INGENUITY AND THE ABILITY OF

                                  Page 18
                           Transcript.8.26.04
    23   THE LEGAL MIND.   YOU'VE ALL DONE A GREAT SERVICE TO THE
    24   JUSTICE SYSTEM TO GET THIS RESOLVED AS YOU HAVE.
    25              SO, I'VE SIGNED THE ORDER PUTTING MISS CLARA MARSH



                                                                 21



    1    BACK IN THE CASE AS A PARTY FOR SETTLEMENT PURPOSES AND

    2    PRELIMINARY APPROVAL OF THE PROPOSED ORDER, AND THIS ORDER AND
    3    THE COURT'S SIGNATURE IS BASED UPON ITS CONSIDERATION OF ALL
    4    OF THE ELEMENTS REQUIRED UNDER THE LAW AND UNDER THE MANUAL

    5    FOR COMPLEX LITIGATION AND THE RULES CONCERNING CLASS ACTIONS,
    6    WITH WHICH THE COURT HAS BECOME MUCH MORE FAMILIAR.

    7              NOW, WE HAVE A JURY AND WE HAVE A LOT OF CURIOUS
    8    PEOPLE OUT THERE.   HOW SHALL WE -- DO YOU WANT ME TO TELL THE

    9    JURY BRIEFLY WHAT WE'VE DONE AND LET THEM GO?

    10             MR. JAMES:   YES, PLEASE, YOUR HONOR.
    11             MR. SMALLEY:    YES, YOUR HONOR.

    12             THE COURT:   I'LL TELL THEM VERY BRIEFLY WHAT WE'VE

    13   DONE.   AND IS THERE ANY PROBLEM WITH MY SAYING THAT CLASS

    14   REPRESENTATIVES PARTICIPATED IN RESOLVING THIS MATTER ALONG
    15   WITH MISS CLARA MARSH?

    16             MR. JAMES:   NO PROBLEM WITH THAT AT ALL, YOUR HONOR.
    17             THE COURT:   IS THAT ALL RIGHT?

    18             MR. JENKINS:    THAT'S FINE.
    19             MS. BARNETT:    YES, IT IS.
    20             THE COURT:   OR I COULD SAY THE MARSH FAMILY.

    21   REALLY, IT'S THE MARSH FAMILY.

    22             MR. JAMES:   THAT'S FINE.     I THINK CLARA AND MISS
    23   BECHTEL ARE GOOD WITH THAT.

    24             THE COURT:   ALL RIGHT.
    25             MR. JENKINS:    IF I MAY INTERJECT, ONE THING THAT

                                  Page 19
                           Transcript.8.26.04


                                                                   22



    1    MR. POSTON WAS MAKING CLEAR IS THAT IT WOULD BE BETTER THAT WE

    2    -- AND I'M SPEAKING MORE TO THE AUDIENCE OUT HERE ON THIS SIDE
    3    OF THE DESK -- THAT WE NOT TALK ABOUT AT ALL --
    4                MR. JAMES:   THE CRIMINAL.

    5                MR. JENKINS:    -- THE CRIMINAL MATTER.
    6                THE COURT:   OH, WELL, I'LL NOT MENTION IT, AND

    7    NOBODY --
    8                MR. JENKINS:    AND THE PLEA BARGAIN.

    9                THE COURT:   -- NOBODY ON MY STAFF WILL MENTION IT.

    10               MR. JAMES:   AND MISS BECHTEL HAS TOLD ME SHE'S NOT
    11   GOING TO MENTION IT, SO.

    12               MR. JENKINS:    AND NONE OF US SHOULD TALK ABOUT IT.

    13               THE COURT:   NO, THERE WILL NOT BE -- THERE WILL BE

    14   NO BREATH OF THAT FROM ANY AREA HERE, AND AS THE COURT, I'LL
    15   REQUEST THAT THE REST OF YOU SAY NOTHING ABOUT IT.

    16               ALL RIGHT, IF Y'ALL WANT ABOUT FIVE MINUTES.

    17               MR. JAMES:   THAT WILL BE GREAT, YOUR HONOR.    THANK

    18   YOU.
    19               THE COURT:   WE'LL GO IN THE COURTROOM; WE'LL BRING
    20   IN THE JURY.

    21               MR. JAMES:   THANK YOU, YOUR HONOR.     THANK YOU VERY

    22   MUCH.
    23               MR. MARSH:   THANK YOU, YOUR HONOR.

    24               THE COURT:   YES, SIR.
    25                            (HEARING CONCLUDED)



                                                                   23



                                    Page 20
                          Transcript.8.26.04
     1                       C E R T I F I C A T E

     2
     3    UNITED STATES OF AMERICA,
     4    NORTHERN DISTRICT OF GEORGIA:

     5
     6
     7        I, DENNIS J. REIDY, OFFICIAL COURT REPORTER OF THE UNITED

     8    STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA, DO

     9    HEREBY CERTIFY THAT THE FOREGOING 22 PAGES CONSTITUTE A TRUE
     10   TRANSCRIPT OF PROCEEDINGS HAD BEFORE THE SAID COURT, HELD IN
     11   THE CITY OF ROME, GEORGIA, IN THE MATTER THEREIN STATED.

     12   GIVEN ON THIS, THE 9TH DAY OF SEPTEMBER, 2004.

     13
     14

     15

     16

     17

     18
     19                                   ____________________________
                                          DENNIS J. REIDY
     20                                   OFFICIAL COURT REPORTER
                                          NORTHERN DISTRICT OF GEORGIA
     21                                   309 U.S. COURTHOUSE
                                          600 EAST FIRST STREET
     22                                   ROME, GEORGIA 30161
                                          (706) 291-5610
     23

     24

     25

=




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