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					 1   JUDGE -                 The Honorable David Svaren
     JUDGE (2) -             The Honorable Warren Gilbert
 2   VOSK -                  Ted Vosk, Defense Counsel
     THATCHER -              Jane Clarkson-Thatcher, witness
 3   LYNCH -                 Mary Lynch, Special Prosecutor
     FOX -                   Jon Fox, Defense Counsel
 4   SWENSON -               Sarah Swenson, witness
     MONTGOMERY -            Toni Montgomery, Skagit County Prosecuting Attorney
 5   PETERSON -              Brianna Peterson, witness
     MIRANDA -               Estruardo Miranda, witness
 6   GARCIA -                Moses Garcia, Attorney for witness Miranda
     VARGAS -                Diego Vargas, Defense Counsel
 7   WILSON -                Karen Bernice Wilson, Defense Counsel
     FORMOSO -               Edward Formoso, witness
 8

 9
     JUDGE -                 At the close of yesterday’s proceedings, Ms. Pemberton was
10                           excused as a witness. So Defense may call their next witness.

11   VOSK -                  Thank you Your Honor. We’re going to call Jane Clarkson-
                             Thatcher. I want to let the Court know the witness begins today
12
                             will be a little bit longer than the rest. The rest I intend to be much
13                           quicker than anybody else.

14   JUDGE -                 Okay. Thank you.
     JUDGE -                 Step up here please. Raise your right hand. Do you solemnly
15
                             swear or affirm any testimony you give in connection with today’s
16                           proceeding will be the truth?

17   THATCHER -              I do.
     JUDGE -                 Thank you. Please have a seat right up here in the witness stand
18
                             and make yourself comfortable. Your witness.
19   VOSK -                  Good morning Ms. Thatcher.

20   THATCHER -              Good morning.
     VOSK -                  Could you please state your full name for the record please?
21
     THATCHER -              Jane Thatcher.
22   VOSK -                  And what is your current position?

23   THATCHER -              Well my full time job is actually, I’m a graduate student at the
                             University of Washington. However, I have maintained a part
24
                             time position with the Washington State Toxicology Lab.
25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 1
 1   VOSK -                  And how long have you been employed by the toxicology lab?
     THATCHER -              I started back in 2000.
 2
     VOSK -                  And you remember the hearing we had back in September, right?
 3
     THATCHER -              Yes.
 4   VOSK -                  Since then, have you received any training, new information of
                             any sort with respect to the certification of simulator solutions?
 5
     THATCHER -              I have had conversations with our state toxicologist as to just
 6
                             changes that we’re making in our processes, so just the regular
 7                           lab work. And I’ve spoken with Mr. Garcia.
     VOSK -                  Okay. Aside from any conversation you’ve had with Mr. Garcia,
 8
                             can you tell me what date the changes, the substance of the
 9
                             discussions with respect to the certification of the simulator
10                           solutions?
     THATCHER -              Well I know that Sgt. Gullberg who is our breath test sergeant,
11
                             and how he’s still maintained a position with Forensic Laboratory
12
                             Services Bureau, that he’s been going through along with Ken
13                           Denton of the Washington State Patrol. And they’ve been
                             reviewing all of our simulator solutions looking for errors, if there’s
14
                             any errors. They’ve been updating those spreadsheets, and I’ve
15
                             also been signing off after reviewing those changes. I know that
16                           last Friday there was a meeting where our supervisors are going
                             to start doing additional reviews of our simulator solutions. Those
17
                             are the things that come to mind.
18
     VOSK -                  And do you remember, well, let’s just try to get some things out of
19                           the way quickly. I’m going to hand you what have been marked
                             as Exhibits 1 and 2. Is the ABFT a recognized organization in the
20
                             forensic toxicology community?
21
     THATCHER -              Yes they are.
22   VOSK -                  And is SOFT the same?
     THATCHER -              Yes they are.
23
     VOSK -                  And are you member of either of those organizations?
24

25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 2
 1   THATCHER -              I am a member of SOFT. I’m attending their annual meeting next
                             week.
 2
     VOSK -                  And what about the ABFT?
 3
     THATCHER -              I personally am not ABFT accredited, or not accredited. I’m not,
 4                           how would you put that? Our lab is ABFT certified, in fact they’re
                             actually recertified just recently. However, I don’t personally have
 5
                             ABFT, I can’t think of what the word is, I’m sorry.
 6
     VOSK -                  Okay. No that’s fine.
 7   THATCHER -              I haven’t taken the ABFT exam.
     VOSK -                  And would you agree that ABFT and according to SOFT the
 8
                             integrity both in moral character and the reporting of results in
 9
                             important?
10   THATCHER -              I do agree.
     VOSK -                  Back in 2005 before you went back to graduate school, you were
11
                             a quality assurance manager for a short period, is that correct?
12
     THATCHER -              Correct. I took the position in February of 2005, and I went back
13                           to school in September of 2005.
     VOSK -                  And can you, in the SOFT guidelines, just take a look at section
14
                             9.1.1, and if you just want to read that paragraph to yourself
15
                             quietly and let me know when you’re done.
16   THATCHER -              9.1.?
     VOSK -                  .1.
17
     THATCHER -              Okay.
18
     VOSK -                  And according to that, quality assurance does accompany all
19                           aspects of the analytical process, and that would include data
                             review and reporting of results, is that correct?
20
     THATCHER -              That is correct.
21
     VOSK -                  And quickly and this is the last one, can you take a look at section
22                           10.1, and just read that to yourself silently and let me know when
                             you’ve done that?
23
     THATCHER -              Okay.
24

25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 3
 1   VOSK -                  And does that indicate just in short that before any results are
                             reported that all data should be reviewed and at a minimum the
 2
                             review should include checking the validity of calculations?
 3
     THATCHER -              That is what it says yes.
 4   VOSK -                  You, back in September we went through the 2004 and 2005
                             simulator solution protocols, correct?
 5
     THATCHER -              I believe so.
 6
     VOSK -                  Okay. I’m going to hand you what has been marked as Exhibits 3
 7                           through 6. These are the protocols from 2004 up through 2007.
                             Are you familiar with the 2007 protocols as well as the 2004 and
 8
                             ’05? Did you want to take a moment?
 9
     THATCHER -              Do you mind if I?
10   VOSK -                  Please.
     THATCHER -              Thank you. Sir, I am familiar with these first three ones. The
11
                             August, 2007 I don’t believe I’ve gone through.
12
     VOSK -                  Okay.
13   THATCHER -              I haven’t been involved with the simulator solution preparation
                             since August.
14
     VOSK -                  Okay. So when was the last time that you did the simulator
15
                             solution?
16   THATCHER -              I honestly don’t recall. It was early 2007.
     VOSK -                  Okay. With respect to the other three, do they each indicate that
17
                             any deviation from the protocol that you take has to be approved,
18
                             or has to be in writing and approved by either the lab manager or
19                           the state toxicologist?
     THATCHER -              Are you asking if that phrase is specifically in here?
20
     VOSK -                  Well yeah.
21
     THATCHER -              Off the top of my head I don’t know. If you can point me to a
22                           page.
     VOSK -                  Right before your signatures.
23
     THATCHER -              Yes it does say that statement.
24
     VOSK -                  Okay. And you’re bound by that?
25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 4
 1   THATCHER -              Correct.
     VOSK -                  Okay. Let’s jump down, and I think you can choose any version
 2
                             you want, to the certification section.
 3
     THATCHER -              Okay.
 4   VOSK -                  Can you just real quickly, what do you do with respect to the third
                             step there in the protocol?
 5
     THATCHER -              So the third step from the August 7, 2007 procedure says, a
 6
                             minimum of three analysts must certify the solution prior to its
 7                           certification.
     VOSK -                  Okay. When you run your five analyses during the certification
 8
                             process, you get your information, you enter it into the
 9
                             spreadsheet, what do you do if your numbers pop up out of range
10                           area of aliquots? If they’re outside of the .098 to the .108?
     THATCHER -              I don’t recall that I’ve ever had that situation occur to me.
11
     VOSK -                  Okay. Well no that’s fine. If it’s not occurred, it’s not occurred.
12
                             You were a quality assurance manager though, and so let me ask
13                           you, in the protocols, the protocols don’t say the numbers, those
                             five individual numbers have to lie within the range of .098 to
14
                             .108, do they? They just say it’s the mean of everybody’s
15
                             numbers have to lie between them?
16   THATCHER -              Do you mind, I haven’t seen these in long time.
     VOSK -                  Please, please. That’s just fine.
17
     THATCHER -              It does say that the average solution concentration is between
18
                             .098 and .10.
19   VOSK -                  Okay.
     THATCHER -              Is being the criteria.
20
     VOSK -                  Okay. And so…
21
     THATCHER -              That’s for an individual.
22   VOSK -                  Okay. So there’s nothing in there that says if an individual is
                             testing his five aliquots and a number pops up outside of that
23
                             range, that they discard that data, is there?
24
     THATCHER -              That’s not addressed in there.
25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 5
 1   VOSK -                  And in fact, if they did have numbers outside of that range, but
                             their mean was still within the .098 to .108, is data in which at
 2
                             least according to that protocol you need to include in the
 3
                             spreadsheet, correct?
 4   THATCHER -              It would depend on the performance of the run. If you had
                             controls that were out or, so we do run controls with the simulator
 5
                             solutions that we know the concentration, and they have to meet
 6
                             certain criteria. So if those controls didn’t work, then you wouldn’t
 7                           accept that range. Something would be wrong with the
                             (unintelligible) or something. You’d want to go back and analyze
 8
                             that run and figure out why your controls didn’t meet the target
 9
                             and why this solution didn’t meet the target. That’s your blank, it
10                           didn’t meet the requirements. So you’d want to go back and look
                             at that run to figure out what was causing the problem.
11
     VOSK -                  Okay. You said we’d want to go back if our control didn’t come up
12
                             right or if our blank didn’t come up right. Let’s assume that our
13                           control is correct. If the control we had in place are correct, but
                             when we analyze the solution it gave us values outside of that
14
                             range, should’ve included those numbers within the spreadsheet,
15
                             correct?
16   THATCHER -              Well if the numbers don’t meet our criteria you would think
                             something was wrong with the solutions. I would probably discard
17
                             that solution. If it’s consistently running out of range, discard the
18
                             solution and prepare a new batch.
19   VOSK -                  Okay. But, let’s just hit right there. You said you’d get rid of the
                             solution altogether and prepare a new one?
20
     THATCHER -              If our controls and our standards and everything is working as it
21
                             should be and something’s wrong, and that solution is reading
22                           high or low, it does not meet our criteria and that’s not a valid
                             solution. We’re not going to use that solution if it’s not meeting
23
                             the criteria.
24

25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 6
 1   VOSK -                  But you wouldn’t just cross out the results of test, stick them in a
                             folder and keep rerunning until you get numbers that did work?
 2
     THATCHER -              If my standards and controls?
 3
     VOSK -                  If your standards and controls were coming up right?
 4   THATCHER -              I would want to know why. Well we would keep that data. We
                             don’t discard our data. We have a case that we’re running, our
 5
                             instructions are that we’re supposed to draw a line through that
 6
                             bad run, include in the case folder and indicate why that run
 7                           wasn’t considered acceptable.
     VOSK -                  But you wouldn’t just keep rerunning samples until you get
 8
                             numbers that work as long as the control is working?
 9
     THATCHER -              I guess I’m not understanding your question. Would you give me
10                           the whole question?
     VOSK -                  Okay. Let’s step back then for a second. My control comes up
11
                             right. My blank is right, all the, everything we had around it to
12
                             make sure the machine’s operating correctly is there. The
13                           aliquots are split or anything else. I get numbers that include
                             every number is within the .098 to .108 except I’ve got one
14
                             number that goes to a .109 and another number that goes to a
15
                             .097. All the other numbers are within our range. Our mean’s still
16                           satisfies what’s in the protocols, correct?
     THATCHER -              You said a .097 and .109?
17
     VOSK -                  Yes.
18
     THATCHER -              Based on that?
19   VOSK -                  Well what’s the mean of a .097 and .109? Well you don’t have to
                             tell me the exact. It’s in between a .098 and a .108, right?
20
     THATCHER -              That is correct.
21
     VOSK -                  So the mean would have been in there, correct?
22   THATCHER -              That is correct.
     VOSK -                  So there is no reason why those numbers shouldn’t have been
23
                             included in the spreadsheet?
24

25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 7
 1   THATCHER -              That’s a good question. I would want to run that one past our
                             state toxicologist because this doesn’t say one way or the other.
 2
                             If it’s the average for that one run or if it is for the whole, like that
 3
                             question that you asked me earlier. It just says the average
 4                           solution concentration between.
     VOSK -                  Okay. Well let’s, we’ll come back to this, let’s take it a, go down
 5
                             to step 4 in that certification.
 6
     THATCHER -              Uh huh.
 7   VOSK -                  Doesn’t step 4 tell us that when we’re doing the average and the
                             CV that it’s the mean and the CV are calculated by using all of the
 8
                             analysts’ numbers?
 9
     THATCHER -              That’s referring, let me look at the section really quick. Right, the
10                           statistics that we’re calculating are for all of the analysts, the
                             standard deviation and the CV.
11
     VOSK -                  Okay. So then it does seem to give specific direction, doesn’t it?
12
     THATCHER -              Well that’s a separate bullet point. The next section is a solution
13                           acceptable for use and therefore certified for means. It’s actually,
                             I guess I would say that it is for the whole batch, you’re right.
14
     VOSK -                  Okay. So if people are, every time they get a number that pops
15
                             outside of that range, the .098 and a .108, that they’re
16                           automatically saying oops, bad data, crossing it out, putting it in
                             the file and running it until they get numbers that fall strictly within
17
                             that range, they’re really not following protocol, are they?
18
     THATCHER -              I would want to see the run. I’d want to know perhaps the needle
19                           became clogged or.
     VOSK -                  I’m telling you.
20
     THATCHER -              I would want to look at the chromatograms.
21
     VOSK -                  In our hypothetical, and I’m going to give you a truly hypothetical.
22   THATCHER -              Okay.
     VOSK -                  We got our control right, we’ve got our blanks, everything’s right,
23
                             the machine’s working right.
24

25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 8
 1   THATCHER -              You’d also want to analyze your chromatograms, so that’s part of
                             reviewing your data to see how those peak shaves look.
 2
     VOSK -                  Everything…
 3
     THATCHER -              Internal standard areas.
 4   VOSK -                  Everything’s right.
     THATCHER -              Okay.
 5
     VOSK -                  You come up with numbers that fall outside of that range. Even if
 6
                             you wanted to apply the criteria to individuals’ five runs instead of
 7                           all of them, the numbers should still be put into the worksheet until
                             of crossed off and stuffed in a file, correct?
 8
     THATCHER -              Assuming that everything is right?
 9
     VOSK -                  Assuming everything else is right.
10   THATCHER -              Then yes they should be put in.
     VOSK -                  Okay. How many times have you performed breath tests?
11
     THATCHER -              I don’t administer any breath tests as part of my duties.
12
     VOSK -                  Okay. Have you ever administered a breath test?
13   THATCHER -              Not that I’m aware of. In our drinking labs I may have helped
                             assist with it, but I’ve never administered a legal breath test for
14
                             sure.
15
     VOSK -                  What’s your training with respect to breath testing?
16   THATCHER -              I don’t have breath test training.
     VOSK -                  So you don’t, like most of us, you don’t know heads or tails
17
                             whether or not a particular breath test is accurate or not. It’s not
18
                             in your field of expertise?
19   THATCHER -              I have reviewed the breath test tickets. I know how to interpret
                             the tickets and if they have the blanks and how, if our solution
20
                             meets the requirement. But I wouldn’t consider myself an expert
21
                             in breath testing.
22   VOSK -                  Well so you can testify to whether or not the solution’s okay
                             because you’ve done that, right?
23
     THATCHER -              Yes I have.
24
     VOSK -                  And that’s part of your expertise?
25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 9
 1   THATCHER -              Correct.
     VOSK -                  But if you haven’t performed breath testing and your not really
 2
                             trained in the art or science of breath testing, how can you really
 3
                             testify to whether or not a breath test is accurate?
 4   THATCHER -              I can look at the ticket and see if it had, if the blank was blank, if
                             our simulator solution met their criteria. That’s the extent that I
 5
                             testify about breath tests.
 6
     VOSK -                  But you can’t say whether or not the test was accurate, all you
 7                           can do is testify as to whether or not the information, some statute
                             said needed to be there was there?
 8
     THATCHER -              I’m testifying as to if it was blank and if our control that we made
 9
                             up in our laboratory met the requirements.
10   VOSK -                  Okay. And again, I don’t mean to push, but you can’t say based
                             on your own expertise whether or not that breath test is accurate?
11
     THATCHER -              I can tell if it can accurately quantitate something around the .08
12
                             level and if it can detect, or if it can, if a blank sample will read
13                           negative. That’s my extent.
     VOSK -                  So is that a yes or a no?
14
     THATCHER -              What’s your question?
15
     VOSK -                  You can’t as an expert testify that if we’ve got a breath test ticket
16                           that says .117, you can’t testify as an expert whether or not that’s
                             an accurate test?
17
     THATCHER -              I would want to know how that is different, if an instrument was
18
                             calibrated properly and, I would defer that to a breath test
19                           technician.
     VOSK -                  So would that be a yes or a no?
20
     THATCHER -              I would probably say, I’d give a maybe. I’d probably say no.
21
     VOSK -                  Okay. Now on September 10th, do you remember we talked a lot
22                           about some math?
     THATCHER -              Yes.
23
     VOSK -                  And since that time, have you had a chance to go back and take a
24
                             look at the math we were talking about?
25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 10
 1   THATCHER -              I haven’t gone back and looked at the math. I’ve seen the
                             changes that have been made to the simulator solution that I had
 2
                             tested in 2007.
 3
     VOSK -                  Do you know, I’m going to assume you know how to calculate a
 4                           mean.
     THATCHER -              Yes.
 5
     VOSK -                  Do you know how to calculate standard deviation?
 6
     THATCHER -              I use Excel to do it.
 7   VOSK -                  Okay. If I showed you algorithms, formulas, would you be able to
                             tell whether or not those were the right formulas to use to
 8
                             calculate a standard deviation?
 9
     THATCHER -              That’s a good question. I have had statistics and I do have all the
10                           books. I would want to go back and check them against my notes
                             from college and my books.
11
     VOSK -                  Okay. But same answer with respect to the relative standard
12
                             deviation?
13   THATCHER -              Yes. I’d want to have my reference books with me.
     VOSK -                  So if I showed you something, you’d want to beg off until you’ve
14
                             had a chance to refer to your own books. You can’t do it here in
15
                             court here today?
16   THATCHER -              I wouldn’t be comfortable. I’d be more comfortable if I had my
                             reference books.
17
     VOSK -                  Okay. Let’s just… When you sign off on the, and I’m going to
18
                             use your terminology, I got all this from the worksheet, the front
19                           page of those simulator solutions, when you sign off on that, that’s
                             just brought around to the office by somebody else and handed to
20
                             you, correct?
21
     THATCHER -              That’s correct.
22   VOSK -                  And when you sign it, do you have to get the chromatograph or
                             the, yeah the chromatograph in front of you?
23
     THATCHER -              When I was signing them, no I did not.
24

25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 11
 1   VOSK -                  And so you just assumed that the numbers that were there under
                             your entry hadn’t been changed from whenever you entered
 2
                             them?
 3
     THATCHER -              That is correct.
 4   VOSK -                  And you took for granted that you had entered them correctly at
                             that time?
 5
     THATCHER -              At that time yes.
 6
     VOSK -                  And you took for granted that in fact somebody else didn’t come
 7                           by afterwards and put your name on the line and indicate that you
                             had tested a solution that perhaps you hadn’t?
 8
     THATCHER -              That’s correct.
 9
     VOSK -                  Because when we spoke on September 10th, you told me that
10                           somebody could in fact do that if they wanted to, but if you don’t
                             have a secure pass no one could have.
11
     THATCHER -              Well the computer that we keep it in is in a locked area, so only
12
                             toxicologists have access to that area and our administrative staff,
13                           so the probability of that happening is very little.
     VOSK -                  But we know we’ve got at least one toxicologist…
14
     MONTGOMERY -            Objection, argumentative.
15
     JUDGE -                 The question hasn’t been completed. Will you complete the
16                           question and then I’ll rule on the objection.
     VOSK -                  Okay. We know we’ve got a toxicologist who lead up the lab,
17
                             who’s at least been accused of doing something that would be
18
                             dishonest. So it’s not, while you say, you’re indicating that some
19                           things are improbable, it’s not impossible, is it?
     THATCHER -              Correct.
20
     JUDGE -                 Same objection State?
21
     MONTGOMERY -            When he started the question previously he started with a but.
22                           And yesterday you said when questions are started with a but,
                             they usually…
23
     JUDGE -                 Well usually they are, that’s true. But as far as this particular one,
24
                             objection’s overruled.
25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 12
 1   VOSK -                  Thank you Your Honor.
     JUDGE -                 Thank you.
 2
     VOSK -                  And at that time did you check the calculations, the statistics that
 3
                             were reported up in the corner of the spreadsheet?
 4   THATCHER -              I glanced over the numbers, and I have signed off enough of
                             those to know approximately where things are going to be and
 5
                             they looked acceptable to me.
 6
     VOSK -                  Okay, but you didn’t go run through and do the calculations?
 7   THATCHER -              No, I didn’t enter 50 plus numbers into an Excel spreadsheet to
                             verify the means and standard deviations. I accepted date on that
 8
                             date as being correct.
 9
     VOSK -                  And when the declarations came around, my understanding now
10                           is it’s just put in your mailbox or retrieve it from your mailbox, you
                             sign it and you hand it in, is that correct?
11
     THATCHER -              That’s how we were doing it back then. I believe that we have
12
                             made changes to our policy now.
13   VOSK -                  Okay, but prior to September, that’s how you did this?
     THATCHER -              Yes.
14
     VOSK -                  And you never, at that time did you have a chromatogram for the
15
                             worksheet in front of you when you signed your declaration?
16   THATCHER -              No I did not.
     VOSK -                  So you didn’t go back at that time to check any of your
17
                             calculations on this?
18
     THATCHER -              No I did not.
19   VOSK -                  Now, do you remember the incident we spoke about with respect
                             to the two years of simulator solution certification between 2005
20
                             and 2007? We talked about that back on September, I’m going to
21
                             hand you what’s been marked as Exhibit 14, the errors that
22                           occurred?
     THATCHER -              Yes.
23
     VOSK -                  Now, the program as changed back in August of 2005, correct?
24

25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 13
 1   THATCHER -              Again, I haven’t been involved with our breath testing program
                             recently so, but it does appear that it has changed.
 2
     VOSK -                  Okay. Well let me ask this then, do you know who wrote that
 3
                             letter? I don’t think it indicates there. That’s why I’m asking, you
 4                           don’t know?
     THATCHER -              I believe it was Dr. Barry Logan.
 5
     VOSK -                  Okay. Now you were testing simulator solutions before you left to
 6
                             go back to grad school, right? You did that on the side?
 7   THATCHER -              Yes I was.
     VOSK -                  And so you were aware that at one point there were only 12
 8
                             people signing off on these, and then at some point thereafter
 9
                             more people were signing off?
10   THATCHER -              To be honest I wasn’t keeping track of how many people were
                             testing. I just knew that every available toxicologist was to test
11
                             the simulator solutions.
12
     VOSK -                  As a QA manager, were you every curious as to whether or not
13                           the software was doing the calculations correctly?
     THATCHER -              That wasn’t something I got to in my job. I was only in that
14
                             position for a short time and I was in training for the majority of it
15
                             so.
16   VOSK -                  Who was training you?
     THATCHER -              It would have been Ann Marie Gordon.
17
     VOSK -                  Ann Marie Gordon. And did she ever tell you it was important to
18
                             make sure the software was doing its calculations correctly?
19   THATCHER -              I wasn’t asked to check up on that.
     VOSK -                  Did you ever see her check to see if they were doing them
20
                             correctly?
21
     THATCHER -              I don’t recall seeing her test them.
22   VOSK -                  As far as you know, has there been a protocol requiring anybody
                             to check to make sure the software was doing its calculations
23
                             correctly?
24
     THATCHER -              I’m not aware of one but that doesn’t mean that there isn’t one.
25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 14
 1   VOSK -                  When did you find out about these errors that we’re discussing
                             right now?
 2
     THATCHER -              I don’t recall.
 3
     VOSK -                  Was it before we spoke in September or?
 4   THATCHER -              It would have been.
     VOSK -                  And at that point, what did you think about signing off on the
 5
                             spreadsheet containing statistics that formerly you had relied on?
 6
     THATCHER -              I don’t understand your question.
 7   VOSK -                  Okay. It was very poorly worded. You’ve been signing off on
                             your spreadsheets and your declarations at least in part in
 8
                             reliance that the computer was doing its calculations correctly?
 9
     THATCHER -              Correct.
10   VOSK -                  And you had been doing that for a couple years?
     THATCHER -              I did that yes, for several years.
11
     VOSK -                  And then when you discovered this, you discover wait a second,
12
                             what I’ve been relying on has been wrong for a couple of years,
13                           correct?
     THATCHER -              Correct.
14
     VOSK -                  So the next time you went to sign something, did that enter into
15
                             your mind?
16   THATCHER -              Again, I haven’t signed solutions since any of this has occurred. I
                             wasn’t doing them prior to that either.
17
     VOSK -                  Let’s say you’re asked to sign another one of these things, are
18
                             you just going to accept the numbers that the computer’s spitting
19                           out to you?
     THATCHER -              I would want to know that the problem had been fixed. And again,
20
                             I do look over the solutions to make sure that they do look
21
                             acceptable, and all of these were well within the range set forth by
22                           our criteria. And so scientifically they do meet our criteria. If that
                             third or fourth decimal place is a little bit off, scientifically it’s still
23
                             acceptable.
24
     VOSK -                  Let me ask you a couple of questions about that.
25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 15
 1   THATCHER -              Okay.
     VOSK -                  What if you knew that some data that should have been included
 2
                             like things that had numbers that popped outside of your range
 3
                             had been crossed out because somebody didn’t understand that
 4                           the protocol applied to everybody’s measurements and not their
                             original runs. Would that cause you to start doubting whether or
 5
                             not the data you were looking at was good enough to rely on?
 6
     THATCHER -              So you’re saying a .109 had been excluded, would that cause me
 7                           to question those results?
     VOSK -                  Yeah. If you knew that people were, or anytime that somebody
 8
                             read (unintelligible) and their test popped up with a couple
 9
                             individual readings that were outside of the range, that they were
10                           crossing them out and putting them in the folder and never
                             including them whether or not the control was okay and
11
                             everything else was okay, would you then have to start
12
                             questioning the scientific validity of the calculations you’re looking
13                           at?
     THATCHER -              If it was one case and it was an outlier, like in science, as you
14
                             probably well know, you can drop some outliers, but you’d want to
15
                             know, I’d want to know what those, reasons for those outliers
16                           was. But if it’s just one outlier, I would still accept the scientific
                             validity because you have so many other values there that are
17
                             well within the acceptable range. So it would depend on the
18
                             situation. I’d want to look at the data.
19   VOSK -                  So you can’t say in an unqualified manner that yes, they would be
                             scientifically valid. You’d need to look at it to see the situation
20
                             first.
21
     THATCHER -              Yes. I mean obviously yes, three quarters of your data are well
22                           outside of that range and they’re not being included, so that’s
                             going to skew your results. But if it’s an outlier or two, then that
23
                             wouldn’t affect the scientific validity.
24

25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 16
 1   VOSK -                  Let me ask you about those outliers. We can sometimes throw
                             those out or we want to take a look at where most of our data is
 2
                             proved, but when we’re calculating the variance, when we’re
 3
                             taking a look at the standard deviation or the relevant standard
 4                           deviation, aren’t those outliers crucial for determining the correct
                             value for our standard deviation?
 5
     THATCHER -              Well typically anything outside of three standard deviations you
 6
                             can consider an outlier and that can be dropped from your
 7                           calculations.
     VOSK -                  But how do you know what your standard deviation is if you
 8
                             haven’t included them in the first place?
 9
     THATCHER -              Well you can do it before and after you drop it.
10   VOSK -                  Right. So you have to, before you drop them, you’d have to
                             calculate what the true standard deviation is, wouldn’t you?
11
     THATCHER -              Yes. But it could also skew your standard deviations so much
12
                             that it wouldn’t, it would change your standard deviation so that it
13                           might not be an outlier.
     VOSK -                  Well okay, because now you’re confusing me a little bit.
14
     THATCHER -              Sorry.
15
     VOSK -                  The standard deviation’s a measure of how these things vary.
16   THATCHER -              Correct.
     VOSK -                  If the solution for whatever reason varies out to some outlying
17
                             value.
18
     THATCHER -              Okay.
19   VOSK -                  The way we quantify the uncertainty, the way we determine our
                             competence intervals, all those neat kind of things, is to include
20
                             that data so we can have an accurate standard deviation, isn’t it?
21
     THATCHER -              Right. But if you have a whole bunch of points that are all
22                           clustered around a circle, and then you have this one point right
                             out there.
23
     VOSK -                  Uh huh.
24

25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 17
 1   THATCHER -              Then your standard of deviation is going to be a lot greater than it
                             should because you, if you drop that outlier, you have a very
 2
                             small standard of deviation and things fall within. But if you have
 3
                             an outlier, your standard of deviation is going to increase.
 4   VOSK -                  But if the control worked okay on that test.
     THATCHER -              That’s why I keep saying I’d want to look at that data.
 5
     VOSK -                  Okay, okay. So in fact, you can’t say for certain if people are
 6
                             throwing, if people are stuffing those numbers into folders you
 7                           can’t say right now for certain that those solutions are still
                             scientifically valid until you’ve had a chance to go back and take a
 8
                             look at all of that. They may be in and out.
 9
     THATCHER -              I would want to look at the data before I make that opinion.
10   VOSK -                  Okay. So they could be invalid?
     THATCHER -              It would depend on the extent of how they were dropped.
11
     VOSK -                  I’m just saying they could.
12
     THATCHER -              What the reasons they were.
13   VOSK -                  They could be invalid.
     MONTGOMERY -            Objection, argumentative. I believe she’s answered the question.
14
                             She doesn’t know.
15
     VOSK -                  I’m just… She didn’t say she didn’t Your Honor. She said…
16   JUDGE -                 Objection will be overruled. You can ask the question one more
                             time.
17
     VOSK -                  Ms. Thatcher, and I’m not trying to be difficult and I know you’re
18
                             in a horribly difficult position up there. So my question’s just real
19                           simple, it could be scientifically invalid, couldn’t it?
     THATCHER -              It could, without looking at the data I wouldn’t know.
20
     VOSK -                  Now with respect to the worksheet, and the worksheet you’re just
21
                             signing off to your individual runs.
22   THATCHER -              As we went over and yeah, it happened to before. We don’t really
                             receive training as to am I signing off on my individual runs and I
23
                             sign off on everybody’s runs. Since then I’ve had a conversation
24
                             with Dr. Logan and he kind of interprets it as you’re looking at
25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 18
 1                           your run and signing off on your run when we sign that big
                             solution certification.
 2
     VOSK -                  Okay. And then the declaration you’re signing off on everything?
 3
     THATCHER -              I’d want to see the wording of the declaration again before
 4                           answering that.
     VOSK -                  Okay. This is not an exhibit, it hasn’t been marked. It’s just got
 5
                             the language if you can take a look at that.
 6
     THATCHER -              Thank you. Yes, except for this it is for everybody’s because
 7                           we’re saying I examined and tested the solution and it’s found to
                             conform to the standards established by the state toxicologist. So
 8
                             it’s saying that yes the standard, or the solution met the criteria.
 9
     VOSK -                  Okay. Now you indicated though before you spoke to Dr. Logan,
10                           you were kind of unclear as to what the signature on the
                             worksheet and the declaration really meant, is that correct?
11
     THATCHER -              Correct. So I would just look at my values and then look at
12
                             everybody else’s and say, does this meet our criteria? Do the
13                           numbers look reasonable?
     VOSK -                  And you were, but you’re unclear as to the distinction between the
14
                             two things?
15
     THATCHER -              If I was signing off on my personal results or my results and
16                           everybody else’s, yes.
     VOSK -                  And nobody had given you training as to what that stuff meant?
17
     THATCHER -              That I don’t recall.
18
     VOSK -                  Number criteria I think it’s three, where it talks about the minimum
19                           of three analysts?
     THATCHER -              Yes.
20
     VOSK -                  When I asked you on September 10th, you felt that three was
21
                             scientifically valid, correct?
22   THATCHER -              I believe I said that I would trust whoever put together these
                             requirements that they had based it on some sort of scientific
23
                             knowledge, or that they determined that to be scientifically
24
                             acceptable, and I’m going to trust their decision.
25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 19
 1   VOSK -                  That was exactly what you said to me almost. So with respect to
                             whether or not having a minimum of three is any good, you don’t
 2
                             have an expert opinion based on your own knowledge?
 3
     THATCHER -              Based on what I’ve seen, three is sufficient.
 4   VOSK -                  Okay. But you haven’t seen the data that people may be stuffed
                             in a folder and crossed out, correct?
 5
     THATCHER -              That’s correct.
 6
     VOSK -                  And you haven’t done your own statistical analysis to figure out
 7                           whether or not three would be appropriate to give you a high
                             enough level of confidence in the numbers to know whether or not
 8
                             three’s good?
 9
     THATCHER -              I personally would be comfortable saying that yes three is good
10                           enough. I haven’t done power calculations if that’s what you’re
                             asking.
11
     VOSK -                  Yeah, that’s what I want to ask because can’t we, if we do a
12
                             statistical analysis and it might take us 20 minutes or a half hour
13                           to do it, but can’t we determine a minimum number of
                             measurements we need in order to make ourselves 90 percent
14
                             confident, 95 percent confident, 99 percent confident in the
15
                             numbers we’re getting? Can’t we do that?
16   THATCHER -              Yes.
     VOSK -                  Then why if that’s possible with 20 to 30 minutes worth of work
17
                             would you just be willing to accept that faith that in fact the
18
                             numbers are good because of what I was told?
19   THATCHER -              Well these numbers were put into place well before I came along
                             and I’m assuming it was the state toxicologist or someone with
20
                             that authority that set forth these requirements and I trust their
21
                             decision.
22   VOSK -                  But you were a QA manager or at least being trained to be a QA
                             manager at one point in time, correct?
23
     THATCHER -              Correct.
24
     VOSK -                  And they never went over any of this with you?
25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 20
 1   THATCHER -              No. We have so many responsibilities at the lab that focus on
                             determine if three was acceptable or not when just based on our
 2
                             experience in looking at these, the numbers don’t vary much and
 3
                             they are within our requirements, so that wasn’t performed.
 4   VOSK -                  Well, but you’re assuming the ones that, if there are any, the ones
                             that vary too much you’ll see. You’re assuming they’re not stuffed
 5
                             away in some folder somewhere?
 6
     THATCHER -              Correct.
 7   VOSK -                  Now you, and this is the toughest part because I know what
                             you’re saying when you, you said something earlier about the
 8
                             numbers being off in a third decimal place or something and that’s
 9
                             not important. You realize that you, in your profession, you’re
10                           kind of a little bit different from another scientist. You work in both
                             the area of science and the law combined, correct?
11
     THATCHER -              As a forensic toxicologist, yes.
12
     VOSK -                  And so there’s more at stake than even just doing good science.
13                           People’s lives are going to be impacted by what you do, correct?
     THATCHER -              That is correct.
14
     VOSK -                  And if you do something in a lab that you might consider
15
                             scientifically invalid, don’t you also have to consider the impact it’s
16                           going to have in a court of law when you’re discussing whether or
                             not it’s valid?
17
     THATCHER -              We have certain criteria that we are required to meet.
18
     VOSK -                  Well and I think I’m going a little bit beyond that. You know from
19                           the situation that occurred from 2005 to 2007 that at least eight
                             people were impacted by those errors, correct?
20
     THATCHER -              Correct.
21
     VOSK -                  Even though they were super small, eight people were impacted,
22                           correct?
     THATCHER -              That’s what I’ve read.
23
     VOSK -                  Okay. Now…
24

25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 21
 1   THATCHER -              Or approximately, I don’t know if eight’s the exact number but I
                             know that there have been.
 2
     VOSK -                  Okay.
 3
     THATCHER -              A few select cases where there was.
 4   VOSK -                  And when you’re asked the question about the validity of the
                             tests and you can talk about the scientific validity, even cutting out
 5
                             the things we’re saying you’re not considering or you don’t know,
 6
                             don’t you also have to consider the impact an error adds in the
 7                           courtroom before you talk about it being, results still being valid?
     THATCHER -              Could you give me more of a direct question please?
 8
     VOSK -                  I’ll try. If your results, if the errors in your results are causing
 9
                             people who had BAC’s under an .08 or have BAC’s under a .15 to
10                           suddenly have BAC’s of over that, don’t you have to consider that
                             in your determination as to whether or not your results are valid
11
                             enough to use in a court of law?
12
     THATCHER -              Our results met the requirement. That’s what, my job is to make
13                           sure that they meet our requirements as set forth by our
                             Washington Administrative Codes and our standard operating
14
                             procedures.
15
     VOSK -                  But we know from 2005 and 2007 you didn’t do that already. So
16                           what I’m asking is, don’t you also have to consider the affect that
                             these things have in a court of law when you determine whether
17
                             or not your results are valid?
18
     THATCHER -              What we did did meet our requirements. It was within, it has to be
19                           less than 5 percent, it was between a .098 and a .108. It was just
                             that those four additional analysts weren’t being included. We
20
                             met the requirement of a minimum of three analysts.
21
     VOSK -                  Did you calculate any of those numbers?
22   THATCHER -              Which numbers?
     VOSK -                  Did you calculate any of the numbers saying that you’ve complied
23
                             with the protocol?
24
     THATCHER -              Did I calculate?
25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 22
 1   VOSK -                  Did you calculate the mean and the standard deviation?
     THATCHER -              Oh no, that was performed by them.
 2
     VOSK -                  Okay. So you didn’t work that out? Even if it were true, when
 3
                             we’re talking about an error, don’t you have to worry about more
 4                           than whether or not it satisfied just some cookbook recipe, don’t
                             you also have to determine the impact it has in a court of law
 5
                             before we you can say whether or not these are valid and to be
 6
                             used in a court of law?
 7   THATCHER -              I don’t, legal issues aren’t my area, but I guess. My
                             responsibilities are to make sure that the solution that’s made up
 8
                             meets the requirements set by our procedures. How that’s then
 9
                             applied in the legal system, that’s why I rely on you guys as
10                           lawyers and the court to determine.
     VOSK -                  But you know that we rely on you to give us accurate results,
11
                             correct?
12
     THATCHER -              That’s correct.
13   MONTGOMERY -            Objection. This is argumentative in nature. I believe she’s
                             answered the question.
14
     VOSK -                  Your Honor, I’ll move on. I’ll move on.
15
     JUDGE -                 Okay, thank you.
16   VOSK -                  Why did you stop doing these, certifying simulator solutions?
     THATCHER -              Because I’m a graduate student, so working in the lab is not my
17
                             primary role. I do 40 hours a week at the University of
18
                             Washington. And I would try and test them when I was around or
19                           if I was doing some proficiencies and there was a simulator
                             solution to be tested, I would test it then. But it’s just a matter of
20
                             time and convenience.
21
     VOSK -                  And I asked you in September. I’m just going to run through it
22                           real quick. Have you ever signed a run test for, been asked to do
                             those things by Ann Marie Gordon?
23
     THATCHER -              Not that I’m aware of.
24
     VOSK -                  And have you ever heard of anybody else doing so?
25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 23
 1   THATCHER -              Just Ann Marie and Mr. Formoso.
     VOSK -                  If I could have just a minute Your Honor, I’m going to wrap it up.
 2
     JUDGE -                 Okay, thank you.
 3
     VOSK -                  Do you know if any of the other toxicologists we’ve called would
 4                           be able to me how to calculate the relevant standard deviation?
     THATCHER -              That I don’t know.
 5
     VOSK -                  I have no further questions.
 6
     JUDGE -                 Thank you. And are there any questions by way of cross?
 7   LYNCH -                 Yes, just a few.
     JUDGE -                 Thank you.
 8
     LYNCH -                 Good morning. Is it Ms. Clarkson-Thatcher or Ms. Thatcher?
 9
     THATCHER -              Ms. Thatcher.
10   LYNCH -                 Okay. You indicated that the tox lab was recently ABFT certified
                             or accredited?
11
     THATCHER -              We were actually accredited back and I believe it was 2005, and
12
                             we recently had inspectors and evaluate our lab and we received
13                           recertification.
     LYNCH -                 Okay. When did that occur, the recertification?
14
     THATCHER -              I believe we received notice last week, but I wouldn’t, I mean Dr.
15
                             Logan would be the best person to ask for that.
16   LYNCH -                 Do you recall when the inspection occurred?
     THATCHER -              Within the last 6 months I believe.
17
     LYNCH -                 So since maybe March of this year?
18
     THATCHER -              Yes.
19   LYNCH -                 Okay. And do you know what goes into an inspection?
     THATCHER -              Yes, I was involved with the first inspection back in 2005. Back
20
                             then they sent out two. I believe this time we may have had 3
21
                             auditors. Again, I wasn’t there so I wouldn’t know exactly, but
22                           there’s, people there sent out from ABFT. They spend a few days
                             in the lab. They review our records, they pull case folders, they
23
                             pull our calibration folders that contain how we quantitate
24
                             samples. And they check our blanks, they check our controls
25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 24
 1                           which are samples of known concentration. They analyze how we
                             do our case review. They analyze our standard operating
 2
                             procedures and make sure that we’re meeting the requirements
 3
                             that would be acceptable in the scientific community.
 4   LYNCH -                 Okay. And how much time does this take? Sounds like it’s
                             probably a couple of days?
 5
     THATCHER -              Yes.
 6
     LYNCH -                 Now, I want to ask you a little bit about how labs work.
 7   THATCHER -              Okay.
     LYNCH -                 You’ve been working at the tox lab for how long?
 8
     THATCHER -              I started back in 2000.
 9
     LYNCH -                 And what kind of testing does the tox lab conduct?
10   THATCHER -              We test biological samples of primarily blood, also urine and other
                             tissues if it’s a medical exam or a coroner case. And we’re just
11
                             looking to see if the drugs or alcohol contributed to somebody’s
12
                             death or to their impairment. So we’re looking for alcohol and
13                           drugs in places.
     LYNCH -                 Okay. And how many different types of instruments do you use to
14
                             conduct those tests?
15
     THATCHER -              We have many instruments in the lab. We have head space gas
16                           chromatography. We have LCMS which is a new state of the art
                             chemistry that allows us to run things through a column and it’s
17
                             using liquids. We also have gas where compounds are pushed
18
                             through the columns using the gas phase. We have flame
19                           (unintelligible) detectors. We have lots of instrumentation in the
                             lab.
20
     LYNCH -                 Okay. So what you do when for example, you’re testing at the
21
                             lab, or well let’s talk about simulator solution and testing that to
22                           make sure it’s prepared to give results that it’s supposed to give.
                             You take a sample of a, I guess five samples of it and then you
23
                             put it into the gas chromatography?
24

25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 25
 1   THATCHER -              Right. So we use head space gas chromatography which is state
                             of the art analytical chemistry that allows us to separate out
 2
                             volatiles and it identifies them based on their retention times, that
 3
                             when they come out of that long thin column we can identify what
 4                           they are.
     LYNCH -                 Okay. And what kind of, how do you read the results? How are
 5
                             the results created? Does it come out on a sheet of paper? What
 6
                             is it that you look at in order to look at the results.
 7   THATCHER -              So it generates something called a chromatogram. What it is is it
                             has time on one scale and then the response on the other axes.
 8
                             And so there will be a peak, and based on where that peak comes
 9
                             out and how big that peak is, you can say what the compound is
10                           and how much of it is there.
     LYNCH -                 Okay. And you know that the chromatogram is working because
11
                             you also do a control?
12
     THATCHER -              Right. When we start up that instrument, we’re going to run a
13                           blank sample so that we can say his sample does not contain any
                             volatile substances, or if it does we’ll see those as peaks on our
14
                             chromatogram. We’re going to run calibrators which are various
15
                             concentrations that allow us to set up a calibration curve and we
16                           can then compare our unknowns to that calibration curve so we
                             know how much is there. And we also run various controls at
17
                             different concentrations which, that way we can know is it
18
                             accurately quantitating substances.
19   LYNCH -                 And the controls are prepared by some other lab, not yours?
     THATCHER -              Right. We purchased those.
20
     LYNCH -                 Okay. And why do you do that? Why do you use a control that’s
21
                             not prepared by you or somebody in your lab?
22   THATCHER -              Just as an external validation so that there’s not going to be, if
                             there was to be an error on maybe our alcohol that we’re
23
                             receiving is (unintelligible) our standard, then we have that
24

25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 26
 1                           external check that verifies that we are quantitating things
                             correctly.
 2
     LYNCH -                 So if the control is read by the, is it a chromatogram? Is that what
 3
                             you call it?
 4   THATCHER -              So it generates a chromatogram, right.
     LYNCH -                 And if the control is read, is the results of the control are where
 5
                             they are supposed to be with what the solution is prepared to by
 6
                             this other independent lab, then you know your own results, then
 7                           you know the machine is working, correct, to interpret the results
                             that you put in with the solutions that you test?
 8
     THATCHER -              That would give me greater confidence in my results, that’s right.
 9
     LYNCH -                 Okay, alright, good. Now, and in the normal course of business in
10                           the lab, you rely on these instruments every day?
     THATCHER -              That is correct.
11
     LYNCH -                 And when they have information that comes out of them, because
12
                             you rely on them every day, they are reliable to you, isn’t that
13                           correct?
     THATCHER -              I consider that to reliable yes.
14
     LYNCH -                 And when you look at results, when you test something and then
15
                             you look at other analysts’ test results who are testing the same
16                           solution, that gives you greater confidence in your own results,
                             isn’t that correct?
17
     THATCHER -              Certainly.
18
     LYNCH -                 Alright. Now you were asked about these outliers.
19   THATCHER -              Yes.
     LYNCH -                 And in any sort of scientific procedure or sometimes in that polling
20
                             for example, has outliers, you know when people take political
21
                             polls, there’s always aberrations, correct?
22   THATCHER -              Correct.
     LYNCH -                 Figure skating. You know they drop the high and the low and
23
                             then they take the other eight judges, isn’t that correct?
24
     THATCHER -              Yes.
25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 27
 1   LYNCH -                 And there’s a reason for that, isn’t there?
     THATCHER -              I’m obviously not an expert in figure skating.
 2
     LYNCH -                 Well we’re not talking figure skating, but in the scientific world
 3
                             there’s a reason why you don’t want to compute the outliers into
 4                           your calculation and that’s because it’s not, the aberration is not a
                             true, it’s not really a true result that you have confidence in, is it?
 5
     THATCHER -              That could be possible. I’d want to go and get a look at the data
 6
                             and figure out why is it an outlier. Was it the result because that
 7                           whole solution was bad? But in that case we would see all the
                             results read very high or was there just maybe the needle was
 8
                             clogged or there was something wrong with that particular
 9
                             injection. So we’d want to look at that chromatogram, look at the
10                           other standards, controls and blanks to see what was occurring.
     LYNCH -                 And I take it when you have tested solutions in the past, those
11
                             aberrations have occurred, is that correct? To your knowledge?
12
     THATCHER -              I don’t recall having a value outside the acceptable range for
13                           simulator solutions. I have had things where things may have
                             been deviated from .01 from the mean, and then I would go back
14
                             and reinject those, and I would look at, I have had things where
15
                             the needle was clogged before and we don’t get results that are.
16   LYNCH -                 I know you were working on a situation where continually you
                             tested once, it’s not correct, so you do it again, it’s not correct,
17
                             you do it a third time, it’s not correct. Have you ever had that
18
                             situation, where there hasn’t been some unnatural explanation,
19                           natural or unnatural explanation for the deviation?
     THATCHER -              I’m sorry. That was a long question. Could you start over?
20
     LYNCH -                 I’m sorry. I’m not always articulate in the morning. Have you ever
21
                             tested a simulator solution and had the results continually fall
22                           outside of the acceptable range?
     THATCHER -              No, not that I’m aware of.
23
     LYNCH -                 Okay. Now Mr. Vosk ask you about all these folders where all
24
                             these results were being stuffed that were outside the range. Do
25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 28
 1                           you know of any situation at the lab? You say they are
                             documented, you’re supposed to document those test results, you
 2
                             draw a line through them and you do save them. Is that a
 3
                             problem that comes up frequently?
 4   THATCHER -              No, not that I’m aware of.
     LYNCH -                 Okay. When at least in your experience, have you ever had to
 5
                             draw the line through the you know, done a run that turns out to
 6
                             be bad?
 7   VOSK -                  That’s been answered, Your Honor. She’s already said no.
     JUDGE -                 Sustained.
 8
     LYNCH -                 When you document a bad run, where do you keep those results?
 9
                             Are they…?
10   THATCHER -              Are we specifically talking about alcohols?
     LYNCH -                 I’m sorry?
11
     THATCHER -              Are we specifically, because our lab does so many sorts of
12
                             testing.
13   LYNCH -                 Okay. We’re talking about the simulator solution.
     THATCHER -              Okay. The simulator solution, and what was your question
14
                             again?
15
     LYNCH -                 Where are those results put that don’t comply with the standards?
16   THATCHER -              I believe they would, well if there was a problem with the whole
                             run and it was run with their cases as well, because we run our
17
                             blood alcohol samples along with the simulator solution in the
18
                             same run often, on the same calibration scale. And so those
19                           would be kept in the first case folder of the day that they ran,
                             where all the other standards and controls were. They can also
20
                             be kept, if it applied just to that simulator solution those results
21
                             would be kept in that same folder that the accept results are
22                           placed.
     LYNCH -                 Now, Mr. Vosk asked you about, or gave you hypothetical where
23
                             everything was right. I’m assuming he meant the solution is
24
                             prepared correctly and the testing was done correctly and the
25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 29
 1                           machine, the chromatogram was working correctly, and yet the
                             results are skewed. Has that ever happened to your knowledge?
 2
     THATCHER -              To my knowledge no.
 3
     LYNCH -                 Does it seem reasonable to you as a scientist that if everything is
 4                           correct including the tester of the machine and the solution, that
                             the results would ever be skewed like that?
 5
     THATCHER -              Our alcohol results give us very reproducible, precise...
 6
     VOSK -                  Your Honor, I’m going to object at this point. I did not
 7                           characterize any of those measurements as skewed. I have
                             characterized them as being perfectly acceptable. I’m not talking
 8
                             about skewed measurements.
 9
     LYNCH -                 I believe he said that they…
10   JUDGE -                 The objection will be overruled.
     VOSK -                  Thank you Your Honor.
11
     JUDGE -                 Your question to the responses, there were two that would be
12
                             accurately reflected.
13   VOSK -                  I’ll withdraw.
     LYNCH -                 Thank you. Do you remember what my question is?
14
     THATCHER -              No I don’t.
15
     LYNCH -                 As a scientist, would you ever expect to see a situation like that
16                           where what you are testing is prepared correctly and the
                             chromatogram is working correctly, you do everything you’re
17
                             supposed to do correctly and yet the results are not acceptable.
18
     THATCHER -              Assuming, well looking at the chromatogram I’d want to see if
19                           there was any sort of an interferent or, I’d want to look at that
                             data. But assuming everything is perfect, our alcohols are so
20
                             reliable and consistent, so it would seem very odd to me.
21
     LYNCH -                 Okay. Now, let me just check my notes before I move on to a
22                           different subject. You were asked about the SOFT guidelines,
                             and I believe specifically you were asked about, do you have
23
                             those in front of you? Subsection 9.1 and 9.1.1 and then 10.1.
24
                             And 9.1 says quality assurance encompasses all aspects of the
25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 30
 1                           analytical process from specimen collection and (unintelligible)
                             through analysis data review and reporting of results. It includes
 2
                             but should not be limited to quality control of each analysis and
 3
                             proficiency testing of the laboratory.
 4   THATCHER -              Correct.
     LYNCH -                 In your opinion, was that complied with at the tox lab?
 5
     VOSK -                  Counsel, I’m sorry. Which are we talking about?
 6
     LYNCH -                 It’s 9.1.1.
 7   VOSK -                  Thank you.
     THATCHER -              We do do, our quality control does include quality control of
 8
                             analysis and proficiency. That’s when we do run quality control
 9
                             samples. And actually the SOFT guidelines refer to biological
10                           testing.
     LYNCH -                 Okay.
11
     THATCHER -              I don’t think they were designed to address simulator solutions.
12
     LYNCH -                 Simulator solutions.
13   THATCHER -              But our lab does do the quality control samples as the
                             (unintelligible).
14
     LYNCH -                 And in fact, they’re guidelines?
15
     THATCHER -              Correct.
16   LYNCH -                 They’re not requirements. They’re ideals hopefully you can
                             achieve?
17
     THATCHER -              Correct. And actually ABFT accreditation is not required. Our lab
18
                             voluntarily chose to do it, and we’re only one of a couple that
19                           does, that went through the certification back then.
     LYNCH -                 Okay. And then you were asked about 10.1, and I’m assuming,
20
                             does this also have to do with biological samples?
21
     THATCHER -              That’s always been my understanding of the SOFT guidelines.
22   LYNCH -                 Okay. But nonetheless, to your knowledge that has been
                             complied with at the tox lab?
23
     THATCHER -              Let me look at that one again really quick.
24

25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 31
 1   LYNCH -                 I understand that simulator solutions, there might be some
                             variation in that.
 2
     THATCHER -              We do document chain of custody and we do look at our
 3
                             chromatograms and we do collect quality control data.
 4   LYNCH -                 Okay. Now in regards to the policies and procedures that are
                             established by Dr. Logan and you were asked about I think the
 5
                             2005 through, I think that you did not sign off on, was it the
 6
                             August of 2007?
 7   THATCHER -              Correct.
     LYNCH -                 Okay. And on this certification section where it says that a
 8
                             minimum of three analysts must certify the solution prior to
 9
                             certification. And then number 4, it says the average of the
10                           results from all the analysts are computed. And then it goes into
                             the standard deviation. Now that seems to me, 3 and 4 seem to
11
                             be little bit in conflict because 3 says that only three have to
12
                             certify it, but 4 says that all the analysts must be computed.
13   THATCHER -              Right. 3 is the requirement. But just for good measure we like to
                             have all the available toxicologists test the solution.
14
     LYNCH -                 So that people are available to testify in court about it if they are
15
                             called?
16   THATCHER -              I believe that’s their primary.
     LYNCH -                 And actually that was the reason why you don’t test the simulator
17
                             solutions, because you’re not available anymore to really testify in
18
                             court, are you?
19   THATCHER -              Correct. I don’t testify in court unless it’s needed.
     LYNCH -                 Okay, alright. Now, you were asked about the solutions that only
20
                             12 analysts’ results appeared on the spreadsheets?
21
     THATCHER -              Correct.
22   LYNCH -                 And there was a time where the software was changed requiring,
                             or the software wasn’t changed when four other analysts were
23
                             hired at the lab.
24
     THATCHER -              That’s been my understanding.
25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 32
 1   LYNCH -                 Okay. Now, the fact that, when those results were recalculated to
                             add in the four other analysts, what changed in the results?
 2
     THATCHER -              I believe it was the mean and the standard deviation.
 3
     LYNCH -                 Okay.
 4   THATCHER -              Without looking at it. I’d want to look at it to confirm, but I believe
                             that’s what it was.
 5
     LYNCH -                 And it changed in the fourth digit I believe.
 6
     THATCHER -              I don’t recall the digit, but it was one of those farther out digits.
 7   LYNCH -                 I believe it’s addressed in that August 9th memo. When you look
                             at a spreadsheet that had only the 12 analysts, the results of the
 8
                             12 analysts, did the, was the average solution concentration
 9
                             calculation, was that incorrect because it had been only
10                           calculated the 12?
     THATCHER -              That was the average solution concentration for 12 analysts’
11
                             testing.
12
     VOSK -                  I’m going to object at this point. She’s already indicated that she’s
13                           never calculated the mean, so how would she have a basis of
                             knowledge?
14
     LYNCH -                 I’m asking, well I can actually ask her a couple other foundational
15
                             questions.
16   JUDGE -                 Okay, sustained.
     LYNCH -                 You indicated that those calculations are done by Excel?
17
     THATCHER -              I’m not sure if it’s Excel or Filemaker. It’s one of those. It’s a
18
                             program that calculates. I wasn’t involved in setting it up.
19   LYNCH -                 And what happens is each analyst puts in their results and then it
                             calculates, takes everything and follow up, and calculates the
20
                             average?
21
     THATCHER -              That’s my understanding of the process.
22   LYNCH -                 And you could do that on a computer I’m sure if you took the time,
                             or not a computer but a calculator if you took the time to do it.
23
     THATCHER -              The mean would be easy to do, standard deviation would require
24
                             a lot of work.
25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 33
 1   LYNCH -                 To your knowledge, is the mean incorrect? Or the average
                             solution concentration incorrect on any of those spreadsheets
 2
                             where only 12 analysts’ tests were tested or computed, sorry?
 3
     THATCHER -              That is the correct, based on the output of the values, that would
 4                           be the mean of those 12 samples. So if you only had 12 analysts,
                             my understanding is that that would be a correct value. It’s just
 5
                             that when you throw a few more in, that small decimal is going to
 6
                             change slightly.
 7   LYNCH -                 It will change because 16 are testing it. But when 12, that
                             spreadsheet is correct as to those 12 testers?
 8
     THATCHER -              That’s my understanding of it.
 9
     LYNCH -                 It’s just the standard deviation that changed.
10   THATCHER -              Oh, maybe I didn’t understand your question properly.
     LYNCH -                 No, no, no. What I want to know is, was the average alcohol
11
                             concentration correctly computed on those spreadsheets for the
12
                             12 analysts?
13   VOSK -                  I’m going to object to that basis of knowledge.
     LYNCH -                 I think she has indicated that she does rely on the computer
14
                             calculating that and that’s what I’m getting at.
15
     VOSK -                  And Your Honor.
16   JUDGE -                 Objection’s sustained.
     LYNCH -                 Okay. If you don’t do the calculations manually, how do you know
17
                             that that average alcohol concentration that is on the spreadsheet
18
                             is correct?
19   THATCHER -              I wouldn’t know the third and fourth decimal places, but I do look
                             and I see, I mean you have a .101, a .101, a .101, a .102. You
20
                             know that that average is going to be around a .01 or a .101,
21
                             maybe a little elevated because you’ve got that .102. You can
22                           look at something and kind of estimate where the mean is going
                             to be.
23

24

25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 34
 1   LYNCH -                 Okay. And to your knowledge, does the average alcohol
                             concentration on the spreadsheets that only have the 12 analysts
 2
                             testing, to your knowledge is that correct?
 3
     THATCHER -              Yes.
 4   LYNCH -                 Now, on the certifications where you signed where the, not all the
                             analysts had tested it, of the 16 only the 12, do you know what the
 5
                             specific language is that you signed the certification language is?
 6
                             Do you have one in front of you?
 7   THATCHER -              Are you referring to the Datamaster .08 simulator solution
                             certification?
 8
     LYNCH -                 Yes.
 9
     THATCHER -              Yes I have that in front of me.
10   LYNCH -                 Okay. And that says, I examined and tested the solution and it
                             was found to conform to those standards established by the state
11
                             toxicologist for the certification simulator solution, is that correct?
12
     THATCHER -              Correct.
13   LYNCH -                 And on the policies and procedures manual under the certification
                             area, number 5 says, the solution is acceptable for use and
14
                             therefore certified if it meets the following criteria. The average
15
                             solution concentration must be between .098 and .108 grams per
16                           100 milliliters inclusive, the CV which is standard deviation.
     THATCHER -              The CV and standard deviation actually are separate things.
17
     LYNCH -                 Okay. What is the CV?
18
     THATCHER -              CV I believe is if you take the standard deviation and divide it by
19                           the mean. It’s just a different, it kind of gives you another way to
                             look at the data.
20
     LYNCH -                 Okay. It says the CV must be 5 percent or less.
21
     THATCHER -              Correct.
22   LYNCH -                 Okay. And when you signed those certificates that was correct.
                             Well as far as the solution concentration, that was a correct
23
                             statement?
24
     THATCHER -              Yes.
25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 35
 1   LYNCH -                 And to your knowledge, at the time you signed those certificates,
                             the standard deviation was 5 percent or less?
 2
     THATCHER -              Yes, for the batches that we produced, we met the criteria but be
 3
                             between a .098 and a .108 and a CV was less than 5 where there
 4                           you have 12 analysts or you have 16.
     LYNCH -                 Yet even today after the other 16, or of the other 4 analysts were
 5
                             included, those were true statements?
 6
     THATCHER -              Correct.
 7   LYNCH -                 Now, just finally and very briefly, you were asked about the 8
                             individuals whose subject samples on the Datamaster were
 8
                             impacted by the error in calculating the mean concentration in,
 9
                             because not all analysts tests had been included in the testing, or
10                           in the calculation, do you recall that?
     THATCHER -              I recall being asked that question.
11
     LYNCH -                 Okay. And that was because those simulator solutions that were
12
                             incorrectly calculated were used to actual calibrate Datamasters,
13                           isn’t that correct?
     VOSK -                  Your Honor, I’m going to object at this point. The witness has
14
                             indicated that she can’t really testify as an expert with respect to
15
                             the accuracy of the basis of the breath tests.
16   LYNCH -                 I’m not asking her about that. I’m asking her, I can ask her if she
                             knows what the circumstances were surrounding that.
17
     JUDGE -                 The objection is sustained.
18
     LYNCH -                 Okay. Are you familiar with Dr. Logan’s memo from August 9th?
19   THATCHER -              I have glanced over it yes.
     LYNCH -                 Have you, did you just glance at it today?
20
     THATCHER -              I believe I looked at it back when Mr. Vosk and I met previously.
21
     LYNCH -                 Okay. And I believe in that memo, he indicates that those
22                           simulators where individuals’ breath tests were impacted, it was
                             the simulator solution that was used to calibrate the Datamaster,
23
                             isn’t that correct?
24
     THATCHER -              Yes.
25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 36
 1   LYNCH -                 Okay. And ordinarily it would be a quality assurance solution that
                             was used to calibrate a Datamaster, isn’t that correct?
 2
     THATCHER -              From what I’ve read yes, that is the procedure.
 3
     LYNCH -                 Who calibrates Datamasters, if you know?
 4   THATCHER -              I believe it’s breath test technicians, but again, that section is a
                             little bit…
 5
     LYNCH -                 Is that outside your…?
 6
     THATCHER -              It’s a little bit outside of my comfort zone.
 7   LYNCH -                 And all of those simulator solutions that were used to calibrate the
                             Datamasters, to your knowledge were in Spokane, correct?
 8
     THATCHER -              To my knowledge yes.
 9
     LYNCH -                 None of them were used here to calibrate Datamasters?
10   THATCHER -              That’s my understanding.
     LYNCH -                 Thank you. I don’t have any other questions.
11
     JUDGE -                 Thank you. Mr. Vosk?
12
     VOSK -                  Yes Your Honor. When we spoke about the ABFT and how the
13                           ABFT had come through the lab and taken a look at everything,
                             did they know that you guys were using software that wasn’t
14
                             operating according to your SOP’s?
15
     THATCHER -              I don’t believe they would have because we didn’t know that at
16                           the time either.
     VOSK -                  Did they have any information that individuals were signing
17
                             declarations and certifications indicating that they had more of
18
                             less performed physical impossibilities?
19   THATCHER -              I don’t know they reviewed.
     LYNCH -                 Objection. There’s no facts in evidence and she can’t ask the
20
                             question based on facts that are not in evidence.
21
     VOSK -                  I’ll withdraw the question Your Honor. I apologize.
22   JUDGE -                 Okay, please do, thank you.
     VOSK -                  Do they know that people were signing off indicating that they had
23
                             tested solutions before solutions had even been prepared?
24
     THATCHER -              I don’t see how that could occur.
25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 37
 1   VOSK -                  That’s impossible, isn’t it?
     THATCHER -              To some, to test something before it’s prepared?
 2
     VOSK -                  Yeah.
 3
     THATCHER -              Yes.
 4   VOSK -                  Did the ABFT know that people were signing indicating that they
                             had done that?
 5
     THATCHER -              When ABFT signed off on this I don’t know. Back when we, they
 6
                             came in back in 2005 when I was there no.
 7   VOSK -                  Did ABFT know that people were signing declarations to results
                             that hadn’t even occurred yet, tests that had hadn’t even been
 8
                             done yet?
 9
     THATCHER -              Did you say signing declarations?
10   VOSK -                  Signing declarations.
     THATCHER -              Before the…?
11
     VOSK -                  Before the tests had been performed, correct.
12
     THATCHER -              Before the tests had been prepared?
13   VOSK -                  No, before it had been performed.
     THATCHER -              They were signing declarations before they had done the testing?
14
     VOSK -                  Correct.
15
     THATCHER -              I don’t know. I wasn’t aware of that.
16   VOSK -                  Do you think any of those things might have caused ABFT a little
                             hesitation?
17
     THATCHER -              To my knowledge, ABFT is aware that our situation has been
18
                             going on, and…
19   VOSK -                  They are now.
     THATCHER -              They are now.
20
     VOSK -                  Were they back then?
21
     THATCHER -              Back then I don’t believe so because we weren’t aware of it.
22   VOSK -                  Do you think it would have caused them some concern?
     THATCHER -              I know that they are aware of what’s been going on and we still
23
                             did receive our certification last week.
24
     VOSK -                  You guys changed a whole bunch of stuff, didn’t you?
25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 38
 1   THATCHER -              We’re constantly approving our quality assurance programs to
                             make sure that it is acceptable.
 2
     VOSK -                  So at the time, if they had known about those things, do you think
 3
                             it would have caused them some concern?
 4   LYNCH -                 Objection, asked and answered.
     VOSK -                  I don’t think it’s been asked and answered.
 5
     JUDGE -                 Overruled.
 6
     THATCHER -              Yes. I think it’s very important to make sure that things are
 7                           current and that we’re improving our program.
     VOSK -                  Can I have just a moment, Your Honor?
 8
     JUDGE -                 Yes.
 9
     VOSK -                  Are you aware of an internal audit in 2004 that indicated that
10                           simulator solution log books were not in compliance with policies
                             and procedures?
11
     THATCHER -              In 2004 I was not the quality assurance manager, so I wasn’t
12
                             aware.
13   VOSK -                  Did you work in the lab?
     THATCHER -              Yes I did.
14
     VOSK -                  Now, the State made a big deal about you know, how we know
15
                             the GC’s work, the gas chromatograph, because we run control of
16                           the samples, right?
     THATCHER -              Correct.
17
     VOSK -                  And we do all these kinds of things and it’s pretty important. Why
18
                             is running a control so important?
19   THATCHER -              Because that allows us to show that our instrumentation is
                             working and that we can accurately quantitative a known. The
20
                             same reason we run that .08, or the .08 is run by breath tests on
21
                             their simulator solution so that they know that it’s accurate
22                           quantitating.
     VOSK -                  And can we have confidence in our GC if we’re not running the
23
                             results of our GC for it if we don’t do controls at least on a periodic
24
                             basis?
25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 39
 1   THATCHER -              I actually would have confident in the results just because we do
                             run so many tests per day and we see that we’re getting reliable
 2
                             results, but it’s good scientific practice to run controls and it is
 3
                             required by our procedure.
 4   VOSK -                  Let me ask you this, how do you know if the tests you’re running
                             are accurate if you hadn’t tested it against a control?
 5
     THATCHER -              That’s why we run controls.
 6
     VOSK -                  Okay. So the control’s absolutely crucial for any, any kind of a
 7                           forensic analysis?
     THATCHER -              I think controls are very important to forensic analysis.
 8
     VOSK -                  At least periodically, even if you don’t do it with every single run?
 9
     THATCHER -              I think it’s a good idea to do it with every run.
10   VOSK -                  Okay. Why wouldn’t you run controls with the software doing your
                             calculations?
11
     THATCHER -              Can you explain your question?
12
     VOSK -                  Yeah. You said that you needed to have controls to make sure
13                           everything else was working.
     THATCHER -              For our instrumentation?
14
     VOSK -                  Yeah.
15
     THATCHER -              Yes.
16   VOSK -                  Why don’t you need a control to make sure your software’s
                             working correctly?
17
     THATCHER -              I don’t know how you would set up a control. I’m not an expert in
18
                             software.
19   VOSK -                  Well you know Excel, correct?
     THATCHER -              I have familiarity with Excel, yes.
20
     VOSK -                  Okay. And you know, you took statistics so I mean, you know
21
                             how to work algorithms and do mathematics.
22   THATCHER -              I know how to apply formulas.
     VOSK -                  Okay. Well good enough, because that’s all the computer is
23
                             doing, correct? The computer doesn’t know anything. It just runs
24
                             formulas, right?
25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 40
 1   THATCHER -              Again, computers are not my area of expertise.
     VOSK -                  Well wouldn’t it be a control if you entered in numbers that you
 2
                             knew the mean of, you know the standard deviation of and you
 3
                             know the CV of, and then just watch to see if the software spit out
 4                           the right answers, isn’t that a control?
     THATCHER -              Can you explain your system to me?
 5
     VOSK -                  Your system in the lab.
 6
     THATCHER -              Right. But your hypothetical system that you’re proposing.
 7   VOSK -                  No I’m not proposing a hypothetical. I’m talking about the one in
                             your lab. You know it better than I do. Couldn’t you just come up
 8
                             with numbers and calculate by hand what the values were, so you
 9
                             knew in advance and put them in to see if the software would run
10                           it correctly? Wouldn’t that be a control? It’s a known value and
                             you’re running it through an analytic process to see if it gives you
11
                             a correct answer, so wouldn’t that be a control?
12
     THATCHER -              I’d have to think about that.
13   VOSK -                  Please do.
     THATCHER -              So I suppose if you had 60 numbers in 1, I need to put 6 numbers
14
                             into Excel and you put 60 numbers into Filemaker for however
15
                             many you were planning on having. You could have, it would
16                           calculate, one would calculate your standard deviation, the other
                             one would calculate your CV’s, so you could calculate the same
17
                             thing so you could compare them I suppose. Whether or not that
18
                             would be considered a control, I don’t know.
19   VOSK -                  But I mean, math is a lot cleaner than reality. We could get
                             absolute answers?
20
     THATCHER -              Typically yes.
21
     VOSK -                  And so we could sit down and calculate it by hand and know the
22                           absolute and correct answers, correct?
     THATCHER -              Calculating the standard deviation I’m going to trust a computer
23
                             more than I would trust my own hand, because carrying digits
24
                             and, once you start getting those third and fourth decimals it’s
25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 41
 1                           going to depend on how you’re carrying them through and where
                             you’re rounding and, those far outliers, or those far outlier decimal
 2
                             places, they’re going to vary depending on how you carry
 3
                             numbers, it’s what you’re dividing by your significant digits.
 4   VOSK -                  You took statistics. How long have people been using statistics?
     LYNCH -                 Objection. This is really outside the scope of my cross
 5
                             examination.
 6
     VOSK -                  Your Honor, it’s, may I?
 7   JUDGE -                 Go ahead.
     VOSK -                  I apologize Your Honor, I can recite. It’s not outside the scope.
 8
                             The State asked about the importance of controls showing how
 9
                             accurate you know, the gas chromatograph and every else was.
10                           What I’m trying to get to is not only the ability to run a control with
                             this software portion of the process, but also the importance of
11
                             doing it. So it’s in direct response.
12
     JUDGE -                 Objection’s overruled.
13   VOSK -                  How long have people been doing statistics?
     THATCHER -              I don’t know the answer to that, I’m sorry.
14
     VOSK -                  Before there were calculators?
15
     THATCHER -              I honestly can’t answer that with confidence. I don’t know. I
16                           assume so because I think calculators are fairly recent.
     VOSK -                  Before computers?
17
     THATCHER -              Yes.
18
     VOSK -                  So you can calculate a standard deviation and a CV by hand.
19                           Maybe it’s my use of pronouns that’s causing the problem. One
                             could calculate standard deviation?
20
     THATCHER -              Yes.
21
     VOSK -                  And so one could sit down and calculate the mean standard
22                           deviation and CV all by hand and come up with precise numbers
                             up to 10 to 12 decimal places, far beyond what you need them for
23
                             in your computer program, correct?
24

25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 42
 1   THATCHER -              Precise? The word precise is what’s getting me because again,
                             depending on how many significant you’re carrying through and
 2
                             all of that, out to 10 digits I don’t, with numbers that we’re
 3
                             generating you don’t get data that would be accurate to 10 digits
 4                           because we don’t have that many significant figures that we’re
                             generating from the instrument.
 5
     VOSK -                  But you could do it by hand and include as many as you wanted,
 6
                             correct?
 7   THATCHER -              Those numbers would not be significant because our data that
                             we’re generating is only significant.
 8
     VOSK -                  Oh I see what you’re saying, okay.
 9
     THATCHER -              To three, so those digits way out there would not be significant.
10   VOSK -                  Okay, I understand what you’re saying.
     THATCHER -              So they wouldn’t be precise.
11
     VOSK -                  Okay. So one could however, sit down and do it by hand and
12
                             carry it out to the fourth, fifth, sixth decimal place, whichever
13                           would be correct using your significant figures?
     THATCHER -              Right. I don’t believe…
14
     VOSK -                  And be as precise?
15
     THATCHER -              I don’t believe those would be significant either.
16   VOSK -                  Right, but as far out as you had to? That would be as precise as
                             one could do that?
17
     THATCHER -              Again, it’s your use of the word precision. Because if you only
18
                             have a certain number of significant digits, carrying them far out is
19                           not going to be precise because…
     VOSK -                  I’m using, I’m just trying to use whatever you’re saying the correct
20
                             number of significant digits are.
21
     THATCHER -              Okay.
22   VOSK -                  Tell me. 4, 5, 6, whatever it is, it’s one of those, right?
     THATCHER -              So you can carry out to the number of significant digits and be
23
                             precise, yes.
24

25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 43
 1   VOSK -                  Okay. So then, one could sit down by hand and calculate the
                             mean standard deviation and CV with as much precision as
 2
                             possible by hand?
 3
     THATCHER -              One could carry it out by hand, yes.
 4   VOSK -                  Now, if we had that, we would then know what the software ought
                             to spit out when those numbers are entered into the spreadsheet,
 5
                             correct?
 6
     THATCHER -              I suppose so.
 7   VOSK -                  Well, yes or no?
     THATCHER -              Well again, it’s going to depend on how you have your software
 8
                             set up. Are you, which significant digits are you using there?
 9
                             How are you collecting your data?
10   VOSK -                  We are using the significant digits you’re telling me we can use.
     LYNCH -                 Objection, argumentative.
11
     VOSK -                  I’m not trying to be argumentative, Your Honor. I’m trying to
12
                             agree with her.
13   JUDGE -                 Okay. Go ahead and just rephrase the question.
     VOSK -                  I will Your Honor. I apologize.
14
     JUDGE -                 Objection is sustained.
15
     VOSK -                  I’m going to do the calculations by hand and I’m going to use as
16                           many significant digits as a computer uses.
     THATCHER -              Okay.
17
     VOSK -                  Which we will stipulate are as many significant digits as are
18
                             permitted by the original data you’re entering into the computer,
19                           so all of our significant digits we’ve taken care of all of that.
     THATCHER -              And are we assuming that the calculations you’re doing are set up
20
                             the same way in the computer?
21
     VOSK -                  We’re assuming the calculations I’m doing are the ones the
22                           computers are supposed to be doing.
     THATCHER -              I don’t know enough, to be honest, I don’t know enough about
23
                             computer and algorithms and all of that, so…
24
     VOSK -                  But there isn’t, pretend it’s a black box.
25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 44
 1   THATCHER -              To give you a good answer, sorry.
     VOSK -                  Pretend it’s a black box. We’re talking about controls, the gas
 2
                             chromatograph. You know how every piece of equipment and
 3
                             hardware in the gas chromatograph works?
 4   THATCHER -              No.
     VOSK -                  Okay. But yet you understand the importance of a control and the
 5
                             use of controls there, right?
 6
     LYNCH -                 Objection, argumentative.
 7   JUDGE -                 Sustained.
     VOSK -                  You understand the importance of a control and the use of the
 8
                             gas chromatograph though, correct?
 9
     THATCHER -              Yes.
10   VOSK -                  So you didn’t need to understand everything that was happening
                             inside there to be able to get confidence in the way it was
11
                             operating through use of a control, right?
12
     THATCHER -              Correct. I’d get approximately the same number.
13   VOSK -                  Okay. So with the computer, with the software, I go back the
                             question we’re looking at. You guys have some algorithm that’s
14
                             entered into the software and supposedly calculates certain
15
                             values, correct? And what we’re trying, what we’re talking about
16                           here is whether or not we can create a proper control. And so if I
                             know the value of the mean, the standard deviation and the CV of
17
                             a set of data, and I know that I need the software to be able to
18
                             produce those numbers accurately, can’t I then just take the data,
19                           put it into the computer and see if it gives me the numbers I know
                             it’s supposed to produce, and if it does I might have confidence in
20
                             it, and if it doesn’t I know something’s probably wrong.
21
     THATCHER -              Right. I guess, maybe if I kind of explain why I’m getting
22                           confused.
     VOSK -                  Please.
23
     THATCHER -              So let’s see we run our .10 control on our gas chromatogram. It
24
                             might give me a .101, it might give me a .102, it might give me a
25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 45
 1                           .099, but it’s right around that .10. If I put in some values into the
                             computer on that sheet it may generate a mean of a certain, let’s
 2
                             say .1014. And then, because I know the way that the
 3
                             calculations are done, how they calculate the standard deviation
 4                           in the computer and how it’s done, a statistician would manually
                             do it all out by hand, then maybe one comes up with a .1013 and
 5
                             one comes up with a .1014. It could just be the way that they are
 6
                             calculating or doing the math. But you could have that slight
 7                           variability, possibly. Again, I’m not an expert on how those are
                             done.
 8
     VOSK -                  What if we decided to round and truncate everything exactly the
 9
                             way we know the computer’s going to do those things, that it
10                           typically…
     LYNCH -                 Objection to relevance to what ifs.
11
     VOSK -                  She brought up the distinction of the rounding and truncating with
12
                             respect to the three or four, out to the fourth decimal places. I’m
13                           trying ask a simple question.
     LYNCH -                 Your Honor, I think we’ve addressed what, he wants her to
14
                             address what could possibly be done. I think it’s important as
15
                             what was done.
16   VOSK -                  And Your Honor, what I’m trying to address is what should
                             appropriately happen and what was possible to do. She’s already
17
                             testified that the reason she has so much confidence in
18
                             everything is because they’re careful in the lab. The state went to
19                           great lengths to show if you do this right, you do this right, you do
                             this right. What I’m trying to show is that the calculations that are
20
                             being run by the software are no different than any other process
21
                             going out of the lab. That’s all I’m trying to get at. I’m honestly not
22                           trying to be difficult.
     JUDGE -                 Objection as to relevance is overruled.
23
     VOSK -                  So let’s go back real quick. And I’m trying to make this easy, I
24
                             know this can be hard.
25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 46
 1   THATCHER -              Can I answer?
     VOSK -                  Please.
 2
     THATCHER -              Okay. I think what we’re getting confused on is, you’re asking me
 3
                             should we have done that. In retrospect it might not have been a
 4                           bad idea. But where I’m getting confused is I think you’re asking
                             me, are you going to get the exact same numbers if you had
 5
                             somebody do it by hand and by the computer? And that’s where I
 6
                             can’t answer that question because I don’t know enough about
 7                           how they’re calculated in the two separate ways. So are you
                             going to come with the same answer between the two? I don’t
 8
                             know. If that’s all you’re trying to get at with me is, if it would have
 9
                             been a, if we could have done that, that is something we could
10                           have done in hindsight.
     VOSK -                  And it would have been a way to use a control to verify that the
11
                             software was operating correctly?
12
     THATCHER -              That could have been done. But again, hindsight’s 20/20.
13   VOSK -                  And that’s all I wanted to get at. Thanks and I’m very sorry for
                             causing problems.
14
     THATCHER -              You’re welcome.
15
     VOSK -                  Now, the State also talked about you rely on the instrument and
16                           you know it’s working because when you’re doing the GC and
                             that’s why have such confidence in the results you see in the
17
                             worksheet because you’ve seen GC working, you know it’s being
18
                             run against controls and everything else. And that’s where your
19                           confidence in the worksheet comes from?
     THATCHER -              Which aspect of the worksheet are you…?
20
     VOSK -                  Well the data being, the data, the numbers you actually see and
21
                             enter. Forget the statistics now for a while.
22   THATCHER -              Okay.
     VOSK -                  And that’s why you have confidence?
23
     THATCHER -              I have confidence because the numbers look…
24
     VOSK -                  Because you trust the GC.
25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 47
 1   THATCHER -              Yes. We have our control values there. They are acceptable.
                             The instrument was calibrated, we have procedures that we follow
 2
                             and therefore I am confident of the results.
 3
     VOSK -                  Now again though, that is without knowing that people are
 4                           actually putting results, or taking results and putting them in a
                             folder and rerunning again so they could get correct results.
 5
     MONTOMERY -             Objection, asked and answered.
 6
     JUDGE -                 Sustained.
 7   VOSK -                  Does it matter how accurate gas chromatograph is if people aren’t
                             putting the data that they get on their runs into the worksheet?
 8
                             Let me rephrase that a little bit.
 9
     THATCHER -              Thank you.
10   VOSK -                  If people are getting numbers that would throw off compliance
                             with the protocols when they run their GC’s, and instead of putting
11
                             them into the worksheet, they’re crossing them off, putting them in
12
                             a folder and then rerunning until they get numbers that do work,
13                           assuming everything’s fine, would you then still trust everybody
                             else’s numbers just because the gas chromatograph works?
14
     THATCHER -              Well, for somebody to have numbers that they were entered into
15
                             the spreadsheet with all of the other analysts’ numbers that we
16                           typically run, it would have to be an extreme outlier for it to skew
                             our values to be outside of a planned .098 to a .108.
17
     VOSK -                  But on a QAP solution, you only have three people doing it.
18
     THATCHER -              On a QAP that’s correct.
19   VOSK -                  So you don’t need an extreme outlier necessarily?
     THATCHER -              It would still have to be, I mean you still have three people testing
20
                             it and they’re each testing it five times, you have 15 values. And
21
                             so if you have 14 that are right around that .10 that we typically
22                           see…
     VOSK -                  What if you have two people in the lab who when they run
23
                             numbers and they don’t work out just right stick them in a folder
24

25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 48
 1                           and keep running the thing until they do get numbers that fit right
                             in that little region?
 2
     LYNCH -                 Objection to the hypothetical nature of this question. There’s no
 3
                             evidence that that has happened.
 4   VOSK -                  I can identify the two witnesses who testified to that Your Honor if
                             she wants them. I try not to embarrass anyone.
 5
     LYNCH -                 She previously testified that she doesn’t know that that’s
 6
                             happened.
 7   JUDGE -                 The objection is assume facts not in evidence?
     LYNCH -                 Yes.
 8
     JUDGE -                 And you say that you can produce the evidence? Do you want to
 9
                             introduce your witnesses, who are those?
10   VOSK -                  Mr. Knoy and Mr. Capron already testified that when they get
                             outliers like that they cross them out and put them in the file and
11
                             rerun the tests.
12
     JUDGE -                 And they also didn’t say that they continue to run the tests until
13                           they got the values that they wanted, which is not…
     VOSK -                  I’m sorry Your Honor. I will rephrase. You’re correct, I will
14
                             rephrase.
15
     JUDGE -                 Okay.
16   VOSK -                  If you have people who when they run get numbers that don’t lie
                             within the protocol and cross them out and put them in the file and
17
                             rerun it, and when they get, if they get a correct run on that
18
                             second time then only include those correct numbers so that you
19                           now have two out of three people on a QA solution whose
                             numbers are not the first set generated, at this point aren’t we one
20
                             step removed? So it’s not necessarily the chromatograph or the
21
                             chromatogram that you’ve got have confidence in the run, but
22                           whether not those two scientists are correctly doing the science?
     THATCHER -              Just so I understand the question, are you telling me that there
23
                             were two out of three analysts that have results where all their
24
                             results were above a .08, assuming it’s a .10 for the .1 QAP that
25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 49
 1                           we’re talking about, all three, all five of their results were above a
                             l9?
 2
     VOSK -                  Any numbers…
 3
     THATCHER -              And we still sent that solution out?
 4   VOSK -                  Any numbers that fell outside of the .098 to the .108, crossed out,
                             put in the folder and then rerun. We already know that that
 5
                             doesn’t necessarily mean the mean’s outside, maybe it is, maybe
 6
                             it isn’t, we don’t know. But they crossed it and reran it to make
 7                           sure all of their numbers would be within that range. Don’t we
                             now have to depend upon not just the accuracy of the gas
 8
                             chromatograph, but on the skill of that scientist because if the
 9
                             control was done correctly, if the allaquades weren’t split, if all of
10                           these things that we can imagine that might account for it
                             including natural variation which is supposed to happen in
11
                             science, then isn’t it the methodology of those scientists you’re
12
                             depending on in that spreadsheet and not necessarily the
13                           accuracy of a chromatogram?
     LYNCH -                 Objection to the compound nature of that question.
14
     JUDGE -                 Sustained.
15
     LYNCH -                 I don’t even understand it.
16   VOSK -                  Did you understand that question?
     THATCHER -              I’m sorry, I didn’t.
17
     VOSK -                  When you take a look at the numbers in that spreadsheet, what
18
                             are the two primary things you need to get those numbers there?
19   LYNCH -                 Objection, asked and answered.
     VOSK -                  Let me ask this, I’ll work with it or I’ll rephrase.
20
     LYNCH -                 Thank you.
21
     VOSK -                  Do you need an accurate gas chromatograph?
22   THATCHER -              Yes.
     VOSK -                  And do you need scientists who know how to properly run the
23
                             chromatograph and interpret the data?
24
     THATCHER -              Yes.
25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 50
 1   VOSK -                  So when you take a look at that spreadsheet and you’re relying
                             on those numbers, before you said you trust them because you
 2
                             trust the gas chromatograph, but there’s also that second thing
 3
                             you’ve got to be able to trust, the methodology of those scientists
 4                           who did it.
     THATCHER -              Can you define methodology?
 5
     VOSK -                  That they operated it correctly and they interpreted the results
 6
                             correctly.
 7   THATCHER -              Yes.
     VOSK -                  So whether or not their gas chromatograph is accurate, precise in
 8
                             everything in the world, those numbers being entered in there,
 9
                             well just because it’s working doesn’t mean those numbers are
10                           necessarily correct, does it?
     THATCHER -              That I lost you on. If the gas chromatogram, so we properly
11
                             calibrate the instrument, we run our checks and balances, we look
12
                             at the chromatogram and make sure there’s no interfering peaks,
13                           our internal standard areas look okay, the chromatography looks
                             okay, then that’s likely a good run.
14
     VOSK -                  You know, I’m going to try to move back to the easier questions.
15
                             You talked about outliers.
16   THATCHER -              Uh huh.
     VOSK -                  If we’re trying to get things between an .098 and a .108 one set in
17
                             five is probably an outlier, right?
18
     LYNCH -                 Objection, asked and answered.
19   JUDGE -                 Overruled.
     VOSK -                  A .175 is probably an outlier, right, if everything else is clustered?
20
     THATCHER -              I believe so, yes.
21
     VOSK -                  But .110 isn’t necessarily an outlier?
22   THATCHER -              Not necessarily no.
     VOSK -                  Well let me ask this, if our region’s anywhere between an .098
23
                             and a .108.
24
     THATCHER -              Actually I need to finish that.
25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 51
 1   VOSK -                  Oh please.
     THATCHER -              Actually that would be because we know what the concentration
 2
                             is supposed to be, and that would be more than .01 outside the
 3
                             range. So it’s not meeting our criteria.
 4   VOSK -                  Well wait a second. I thought you were supposed to be testing to
                             determine what the concentration was. Isn’t that the whole point
 5
                             behind the certification?
 6
     THATCHER -              We are testing to know what the concentration is, right. But that
 7                           would cause us to kind of go wait a minute, what’s going on?
                             We’d want to go back and look at that data to figure out what’s
 8
                             going on with that. Because we do know the concentration, and
 9
                             it’s outside a certain percentage then we can go back and look
10                           what’s going on. Because it is a solution of approximately known
                             concentration. It’s like if our .10 simulator solution or it’s .08 on
11
                             the breath test was reading a really high value, we’d go back and
12
                             look and go maybe this isn’t a good solution and then we’d
13                           discard it.
     VOSK -                  Okay. So then maybe, when you just said in that last part, then
14
                             you don’t know what the value of the solution is when you start?
15
     THATCHER -              No we do because we’re making it up in a very specific manner.
16   VOSK -                  Well then you’d never had a bad solution.
     THATCHER -              You shouldn’t unless you had a bad alcohol batch. And that’s
17
                             why we do purchase external controls to verify our solutions. So if
18
                             your alcohol was duly wrong or somebody prepared it wrong.
19   VOSK -                  So then you don’t know what the solution is before you test it?
     THATCHER -              Following the procedure of adding X amount of alcohol to X
20
                             amount of water, that should make up a solutional read of .08 on
21
                             the breath test instrument or approximately between .098 and a
22                           .108 on our gas chromatograph.
     VOSK -                  If somebody did it right.
23
     THATCHER -              If somebody did it right.
24
     VOSK -                  You’re assuming somebody did it right?
25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 52
 1   THATCHER -              Yes.
     VOSK -                  So you don’t really know before you do these tests what the value
 2
                             is?
 3
     THATCHER -              That value if made correctly should read between a .098 and a
 4                           .108.
     VOSK -                  Great. But that’s not what I’m asking you. Before you run it,
 5
                             before you personally test it, you don’t know what the value is, do
 6
                             you?
 7   THATCHER -              No. That’s why we test it.
     VOSK -                  Okay. So when we start talking about outliers, you can’t base
 8
                             what an outlier is on what you want your theoretical value to be
 9
                             before testing, can you?
10   THATCHER -              Could you say that…?
     VOSK -                  Don’t you need to run your data before you can determine
11
                             whether or not something’s an outlier?
12
     THATCHER -              Yes.
13   VOSK -                  And if I run tests, let me ask this, how far apart can two numbers
                             need to be separated before they’re going to violate a 5 percent
14
                             CV?
15
     THATCHER -              That’s a good question. I don’t think I’ve seen batches with
16                           greater than 5 percent CV, so I don’t know what it would be.
     VOSK -                  So if we had a batch that was, say we ran, had all 16 analysts and
17
                             all the numbers, you had equal numbers of .098 and .108, okay,
18
                             so you’ve got 40 a piece, our mean’s right there in the middle, all
19                           of our numbers comply with the protocol, is there a CV that
                             complies with the protocol?
20
     THATCHER -              That I don’t know. I’ve never seen that situation, so I don’t know
21
                             off the top of my head.
22   VOSK -                  What if all of our numbers were a .104 and we had one that
                             popped out at a .12? Our mean would still be within the range,
23
                             correct?
24

25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 53
 1   LYNCH -                 Objection to the cumulative nature of these questions. They’re all
                             designed to get the exact same information based on
 2
                             hypotheticals that we really, I believe Ms. Thatcher has indicated
 3
                             are kind of ridiculous.
 4   VOSK -                  And Your Honor, what I, I’m sorry.
     LYNCH -                 Go ahead.
 5
     VOSK -                  Your Honor, what I’m trying to establish here is, what exactly is an
 6
                             outlier? We’ve had people say that they put, they crossed out
 7                           data and put it in a folder when it doesn’t exactly agree. We know
                             that you can have numbers well outside of this range and the
 8
                             mean is still right on. Now if the CV will still comply with the
 9
                             protocols with numbers outside of the range then none of those
10                           tests should have been thrown out. Those should have been
                             included within the data even if, even if we allow that these people
11
                             can throw away data when it doesn’t agree. So what I’m trying to
12
                             establish here is, at what point, at what point do we throw out data
13                           that is outside of this range?
     LYNCH -                 Can I respond Your Honor?
14
     JUDGE -                 No. It’s a wonderful argument and I understand it is an argument.
15
                             And this witness has indicated that in cases of outliers you would
16                           need to look at the underlying data which she’s not being
                             provided with, and so I will sustain the objection.
17
     VOSK -                  Okay Your Honor. Earlier the State asked you about skewed
18
                             results just because one of the, or a couple of the results of a five
19                           aliquot run fall outside of the .098 to .108 range doesn’t mean that
                             any of those results are skewed, does it?
20
     THATCHER -              So a value falls outside of the .089, well skewed to me is if you
21
                             have more data on one side of your average. Like if you’re
22                           thinking about your bell curve, if one side is bigger and one side
                             kind of stretches out, that’s the definition of skewed to me.
23
     VOSK -                  Let’s assume we’ve got a nice, neat bell curve centered right in
24
                             the middle of that range.
25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 54
 1   THATCHER -              Okay.
     VOSK -                  And I’ve got one number falling just outside the top and one
 2
                             number falling just outside the bottom.
 3
     THATCHER -              Okay.
 4   VOSK -                  It’s not skewed data, is it?
     THATCHER -              Using statistical definitions of skewed, if you have that good solid
 5
                             bell curve you’ve got one outside and you’ve got equal number on
 6
                             either side, that’s not skewed.
 7   VOSK -                  So those are scientifically acceptable numbers?
     THATCHER -              Depends on what your definition of acceptable is as outlined by
 8
                             your procedure protocols.
 9
     VOSK -                  No I’m talking about science. Let’s forget about the protocols for a
10                           second. Scientifically, what’s wrong with those numbers?
     LYNCH -                 Objection, asked and answered. I believe she’s testified to all this
11
                             previously on direct examination.
12
     JUDGE -                 Overruled.
13   VOSK -                  I mean don’t we expect natural variation?
     THATCHER -              Yes.
14
     VOSK -                  Isn’t that exactly what we’re trying to measure here?
15
     THATCHER -              Yes. Well scientifically anything outside the three standard
16                           deviations is typically dropped.
     VOSK -                  But that’s what we’re trying to calculate, right?
17
     THATCHER -              Yes.
18
     VOSK -                  So we don’t know that beforehand, right?
19   THATCHER -              Before you collect the data you wouldn’t have a standard
                             deviation though.
20
     VOSK -                  And we don’t calculate the standard deviation on the individual
21
                             runs. We do it on all the runs collectively, right?
22   THATCHER -              That is how we do it, yes.
     VOSK -                  So what is there to say that those are perfectly legitimate values,
23
                             scientifically acceptable values within normal variation that are not
24
                             being included in the certification of the solutions?
25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 55
 1   THATCHER -              I’m not quite sure how to answer that, but if I saw a result that was
                             like a .12, I’ve tested enough solutions that I would know that’s
 2
                             not a reasonable number and I would want to go back and look at
 3
                             my data, figure out what went wrong, is there something wrong
 4                           with my chromatogram or if there is something wrong with the
                             instrument. And because it would be not consistent with what I’ve
 5
                             seen in the past, I would consider that to be an outlier and I would
 6
                             not want to include that number. I’d want to know why I didn’t
 7                           include that number.
     VOSK -                  What’s random error?
 8
     THATCHER -              Oh please don’t ask me that.
 9
     LYNCH -                 Objection. This is outside the scope of cross examination.
10   VOSK -                  This is Your Honor, is not, what we are talking about here is
                             what’s acceptable scientific practice, and this was brought up by
11
                             the State on their cross. What we’re talking, I’m very, very sorry
12
                             Your Honor. What we’re dealing with here is standard deviation
13                           and the relative standard deviation is a measure of uncertainty,
                             natural variations. And what that also measures is random error.
14
                             That’s why we’re doing these tests in the first place. I’m getting
15
                             what I thought would be relatively, or asking what I thought would
16                           be quite simple questions. This is not outside the scope of cross,
                             and it certainly is relevant. I mean it goes to directly whether or
17
                             not the other witnesses we’ve heard already, the results that they
18
                             say they’ve put in files, whether or not that was appropriate
19                           scientific practice doesn’t matter. We’re talking about
                             certifications they didn’t even look at because they don’t include
20
                             what the protocols require.
21
     JUDGE -                 Presumably you had the ability to discover what were in those
22                           files. Presumably you might have that information that you could
                             provide to the witness and ask her direct questions.
23
     VOSK -                  I’ll withdraw the question. I do not have that data with me Your
24
                             Honor. If somebody has it I would be happy to. I don’t have it.
25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 56
 1   JUDGE -                 Thank you. As to the definition of random error, that has not been
                             defined. The objection’s overruled.
 2
     VOSK -                  So I can ask the question?
 3
     JUDGE -                 Yes. You asked what random error was, let’s go…
 4   THATCHER -              I can’t give you the correct definition right now. I’d want to go
                             back and look at my textbooks. I don’t consider myself a great
 5
                             statistician. I rely on computers and programs and when I need to
 6
                             I have reference books I can look back at.
 7   VOSK -                  Okay. Let me cut to the chase then. Maybe this can make it
                             easier. My big concern was that you had been talking about how
 8
                             accurate these things were and it was okay to throw out certain
 9
                             numbers and things of that nature, and all of that…
10   THATCHER -              I wouldn’t say throw out numbers. Again, as I keep saying, I
                             would want to look at data, see what’s going on and then make a
11
                             determination of did something happen and do we need to
12
                             exclude this? This does not meet our requirements. Do we need
13                           to discard the batch? You really have to look at the data to figure
                             it out before you can make a determination of should we toss it
14
                             out of not.
15
     VOSK -                  Okay, exactly. So a .112 isn’t necessarily something that you’ve
16                           got to throw out. You might look at it closely but it might be
                             something that should included in that worksheet?
17
     LYNCH -                 Objection, asked and answered.
18
     JUDGE -                 Sustained.
19   VOSK -                  Can I ask with respect to a different number?
     JUDGE -                 No, I think it’s pretty well plumed at this point.
20
     VOSK -                  You know what? I’m going to move onto a different one Your
21
                             Honor. When we take a look at the protocols, the State indicated
22                           that it looked like sections 3 and 4 and the certification weren’t in
                             conflict.
23
     JUDGE -                 Sections?
24
     VOSK -                  And let me know when you get there.
25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 57
 1   THATCHER -              Thank you. Okay.
     VOSK -                  3 just says you have to have a minimum of 3 to certify, correct?
 2
     THATCHER -              Correct.
 3
     VOSK -                  And then 4 says that every analyst who does do it must be
 4                           included in the calculations, correct?
     THATCHER -              It says the average of the results from all analysts are computed,
 5
                             yes.
 6
     VOSK -                  So I’m going to characterize it and just ask you if you agree with
 7                           me, what that seems to be saying is a minimum of 3 have to do it,
                             but if you have more, everybody had to be included.
 8
     THATCHER -              Right. You should included all the values that you have available
 9
                             to you.
10   VOSK -                  So there’s really no contradiction between section 3 and 4 there?
     THATCHER -              I don’t know contradiction is the word I would use. I mean you
11
                             need to have 3 people. If you have more than that’s great, let’s
12
                             include them is the way that I interpret it.
13   VOSK -                  But you have to include them if you have them?
     THATCHER -              You should include them.
14
     VOSK -                  So there is no contradiction?
15
     THATCHER -              Contradiction’s probably not the word I would use.
16   VOSK -                  You indicated that former Sgt. Gullberg and Trooper Denton had
                             fixed the results?
17
     THATCHER -              I don’t have a lot of direct knowledge about that, but my
18
                             understanding is that they, it’s going on when I’m at school, is that
19                           they are going in and they are reviewing all the data, reviewing
                             the chromatograms, updating our certifications spreadsheets, and
20
                             then, like for the one that I was provided, that I had tested in
21
                             2007, they’ve indicated the changes. They’ve tossed out the old
22                           standard deviations and means. They’ve written the new
                             numbers on those chromatograms and they’ve just checked and
23
                             double checked what the original spreadsheet gave us versus the
24

25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 58
 1                           new numbers and put those on there and then checked the
                             chromatograms and all the data that was in the folders.
 2
     VOSK -                  Did they tell you how they did that?
 3
     THATCHER -              I haven’t been there when Sgt. Gullberg and Trooper Denton had
 4                           been there. My explanation was from Dr. Logan.
     VOSK -                  Okay. And you’ve signed off on this a second time?
 5
     THATCHER -              I did sign off the second time.
 6
     VOSK -                  Now, because you were unclear of what your signature has
 7                           meant prior to this. What did your signature mean when you
                             signed off on it that second time?
 8
     THATCHER -              That my numbers that were on that sheet were the numbers that
 9
                             were on the chromatogram that I generated the data for.
10   VOSK -                  So you’re not signing off saying that the recalculations done by
                             Gullberg and Denton are accurate?
11
     THATCHER -              It has a statement on there for what we signed. And I read that
12
                             statement and agreed that the calculations were redone. I was
13                           told they were redone and calculated and those are my numbers.
                             I agreed with the numbers. I’d need to see the exact sticker to
14
                             know.
15
     VOSK -                  Did I hand you one of those up there? Do you have one of those
16                           new ones?
     THATCHER -              Yes, there is one.
17
     LYNCH -                 I’m going to object to this as outside the scope of my cross. I
18
                             don’t believe I asked her any questions about the recalculations.
19   VOSK -                  She did Your Honor.
     JUDGE -                 Overruled.
20
     THATCHER -              Okay. So my signature means that I checked the file for the
21
                             solution and reviewed the changes that were made, so I looked
22                           and I saw the numbers that they changed, and that the solution
                             still conforms to those standards that were set forth by the state
23
                             toxicologist.
24

25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 59
 1   VOSK -                  But you don’t know how Gullberg and Denton went about doing
                             what they did, how they did their calculations?
 2
     THATCHER -              Exact details I do not know.
 3
     VOSK -                  Do you know whether or not they included Ann Marie Gordon’s
 4                           numbers?
     THATCHER -              That I don’t know.
 5
     VOSK -                  Did you go back and recheck the calculations yourself?
 6
     THATCHER -              No I did not.
 7   VOSK -                  So that when you say that Gullberg and Denton fixed these
                             numbers and you signed that second declaration, are you saying
 8
                             under penalty of perjury that the mean, the standard deviation and
 9
                             CV on that worksheet is correct?
10   THATCHER -              I am saying that the solution still conformed to those standards
                             and I do (unintelligible) look at those numbers they do meet our
11
                             .09, hold on I’m going to say it wrong, they fall within, qualify
12
                             within the range that we have set forth and that those changes
13                           were made and my numbers were correct, is what I’m saying.
     VOSK -                  So you’re not swearing that the work done by Gullberg, the
14
                             recalculations done by Gullberg and Denton are correct? You’re
15
                             just swearing to your own work?
16   THATCHER -              Just swearing to my own work? Sgt. Gullberg went back and did
                             the data and I’m relying on his calculations of how he incorporate
17
                             those numbers, he is a good statistician, so he might have done
18
                             them by hand as well. I have no direct knowledge of how they
19                           were done. I’m just saying that he went back and did the
                             numbers and I am signing that I’m relying on his numbers, that
20
                             they’re accurate.
21
     VOSK -                  And I guess my question is, are you swearing under penalty of
22                           perjury, or would you swear under penalty of perjury that those
                             numbers are correct that Gullberg and Denton had put into those
23
                             sheets?
24

25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 60
 1   LYNCH -                 Objection, asked and answered. She’s explained what she meant
                             by the certification, and he’s asking her to swear to something
 2
                             different than what she’s certifying.
 3
     JUDGE -                 Sustained.
 4   VOSK -                  We’re done Your Honor.
     JUDGE -                 Okay. Thank you. Any questions?
 5
     LYNCH -                 Your Honor?
 6
     JUDGE -                 Well actually, we’re going to take a morning recess at this time.
 7   LYNCH -                 Well I can, as this horse is in rigamortus, I don’t have any further
                             questions for this witness, so I think we can excuse her.
 8
     JUDGE -                 Thank you. Any objections to excusing Ms. Thatcher altogether?
 9
     VOSK -                  No Your Honor.
10   JUDGE -                 Ma’am, you’re excused from the witness stand.
     THATCHER -              Thank you.
11
     JUDGE -                 It will be a 15 minute recess.
12
     FOX -                   Thank you Your Honor.
13   VOSK -                  Do you mind if I take my coat off for the rest of this morning’s
                             proceedings?
14
     JUDGE -                 I’m not going to have any objection.
15
     VOSK -                  Thank you Your Honor.
16   JUDGE -                 I might have comment on your sartorial splendor, but no I don’t
                             have any objection.
17
     JUDGE -                 Okay. The Defense may call it’s next witness.
18
     VOSK -                  We’ll call Sarah Swenson Your Honor.
19   JUDGE -                 Okay Ms. Swenson, raise your right hand please. Do you
                             solemnly swear or affirm any testimony you give in connection
20
                             with today’s proceeding will be the truth?
21
     SWENSON -               Yes.
22   JUDGE -                 Thank you. Please have a seat and make yourself comfortable.
                             Your witness.
23
     VOSK -                  Ms. Swenson, can you please state your full name for our record.
24
     SWENSON -               Sarah Swenson.
25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 61
 1   VOSK -                  And what is your current occupation?
     SWENSON -               I’m a forensic toxicologist at the Washington State Toxicology
 2
                             Lab.
 3
     VOSK -                  Have you prepared simulator solutions in the past?
 4   SWENSON -               Yes.
     VOSK -                  And have you certified simulator solutions in the past?
 5
     SWENSON -               Yes.
 6
     VOSK -                  You’re aware of the protocols governing those processes?
 7   SWENSON -               Yes.
     VOSK -                  When you certify a simulator solution, do you try to be accurate?
 8
     SWENSON -               Yes.
 9
     VOSK -                  And why is that?
10   SWENSON -               It’s a scientific process, so in any scientific process you try to be
                             as accurate as possible.
11
     VOSK -                  And when you sign the declarations with respect to the simulator
12
                             thermometers, are you expecting courts and the public to be able
13                           to rely on your declarations?
     SWENSON -               I’m not actually aware of how the courts use those certificates.
14
     VOSK -                  Are you aware that you’re signing under penalty of perjury to
15
                             something?
16   SWENSON -               I believe that’s what it says on the certificates, yes.
     VOSK -                  Okay. Any order is just fine. Okay, so you said you’re not aware
17
                             of how they’re used?
18
     SWENSON -               Correct.
19   VOSK -                  Are you aware that they’re posted on a website?
     SWENSON -               Yes.
20
     VOSK -                  And have you relied on them testifying in court before?
21
     SWENSON -               No.
22   VOSK -                  Have you testified in court before?
     SWENSON -               Yes.
23
     VOSK -                  About the simulator solutions?
24
     SWENSON -               Yes.
25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 62
 1   VOSK -                  And in doing so have you relied on the worksheets?
     SWENSON -               Yes.
 2
     VOSK -                  And is your testimony typically concerning whether or not the
 3
                             simulator solution falls within the proper protocol limits?
 4   SWENSON -               I normally talk about how it’s prepared, how it’s certified, whether
                             or not it falls within those ranges. And that’s basically it about the
 5
                             simulator solutions when I testify.
 6
     VOSK -                  Okay. Now, do you know off the top of your head what the
 7                           protocols require for a simulator solution to have been certified
                             according to the protocols?
 8
     SWENSON -               No, I’d have to look at the SOP.
 9
     VOSK -                  I’m going to hand you what’s been marked as Exhibit 4. It is the
10                           2005 version of the protocols. Does that look familiar to you?
     SWENSON -               Yes.
11
     VOSK -                  And if you open it up to the section on certification, do you see
12
                             there the parameters you have to satisfy in order for a solution to
13                           be valid under the protocols?
     SWENSON -               Yes.
14
     VOSK -                  Now, when you determine that a solution is valid, when you are
15
                             testifying, if you’re testifying then yes everything’s within limits, do
16                           you rely on the data in the worksheet?
     SWENSON -               Yes.
17
     VOSK -                  Do you rely on the statistics that are in the worksheet?
18
     SWENSON -               Yes.
19   VOSK -                  And what are the, with respect to the parameters, the .08 or .098
                             to .108, correct?
20
     SWENSON -               Yes.
21
     VOSK -                  And then there’s the CV of 5 percent, correct?
22   SWENSON -               5 percent or less, yes.
     VOSK -                  Now have you ever gone through and calculated the mean on any
23
                             of these?
24
     SWENSON -               I have not.
25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 63
 1   VOSK -                  Have you ever gone through and calculated the CV on these?
     SWENSON -               No I have not.
 2
     VOSK -                  Are you able to?
 3
     SWENSON -               I would have to look in a textbook to, it’s not something I normally
 4                           do, but yes I could do it.
     VOSK -                  Okay. Do you know off hand the formula for calculating the CV?
 5
     SWENSON -               No. I would have to look that up.
 6
     VOSK -                  If I gave you something, if I gave you a sheet of paper with the
 7                           formula on it, would you be able to recognize whether or not that’s
                             the formula you would use, or would you still want to check your
 8
                             textbook
 9
     SWENSON -               I would still want to check.
10   VOSK -                  That’s fair. When you sign your worksheet and not the
                             declaration, what is it that you are signing? What do you take
11
                             your signature to mean?
12
     SWENSON -               I am looking at the values that I put into the database, and
13                           whether or not I mean, they fall within the ranges that are needed.
                             So I’m looking at the testing that I did.
14
     VOSK -                  Okay. Now, what do you mean by falling within the ranges
15
                             needed?
16   SWENSON -               There is, the average solution concentration that we have there
                             that also refers to the individual values that we get have to also
17
                             fall within that range as well.
18
     VOSK -                  Where does it say that in the protocol?
19   SWENSON -               I’d have to read through the protocol to see is it’s even on here.
     VOSK -                  Okay, go ahead.
20
     SWENSON -               So it only states on here that the average has to fall within that
21
                             range.
22   VOSK -                  Okay. So there’s nothing in there saying that on your individual
                             run if the number falls outside that range it’s no good.
23
     SWENSON -               It does not say anything on here, no.
24

25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 64
 1   VOSK -                  Okay. Did somebody tell you that you were supposed to get rid of
                             those runs if a value in your individual run fell outside of that
 2
                             range?
 3
     SWENSON -               Yes. In training they tell you that if your value is, exceeds the
 4                           range that you should retest it or, basically retest it.
     VOSK -                  Who told you that?
 5
     SWENSON -               I don’t recall off the top of my head who trained me.
 6
     VOSK -                  So that was standard practice in the lab?
 7   SWENSON -               Yes.
     VOSK -                  When you signed your declaration, what do you take your
 8
                             declaration to mean?
 9
     SWENSON -               I take it to mean that the test that I did are within the range and
10                           are acceptable.
     VOSK -                  Okay. Now, I’m going to pass forward just as an example a
11
                             typical declaration. And if you can take a look down at the last
12
                             paragraph, are you declaring under penalty of perjury that the
13                           solution abides by the protocols?
     SWENSON -               It says that I examined and tested the solution. It was found to
14
                             conform to the standards established by the state toxicologist for
15
                             the certification of the simulator solution.
16   VOSK -                  Okay. So those standards would be the protocol?
     SWENSON -               Yes.
17
     VOSK -                  And the protocols, if you open up the, well you’ve got the 2005
18
                             there and you look at line 3, it says you’ve got to have minimum of
19                           3 to certify, correct?
     SWENSON -               That’s correct.
20
     VOSK -                  But then number 4 says that in calculating the mean in the CV
21
                             you’ve got to use the data from all analysts, correct?
22   SWENSON -               That’s correct.
     VOSK -                  So when you’re saying that something, the solution was found to
23
                             abide by the standards set by the state toxicologist, you’re talking
24

25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 65
 1                           about the standards including all of the analysts’ numbers, aren’t
                             you?
 2
     SWENSON -               That could be one way that it’s taken, yes. It could also be taken
 3
                             that you know, there are just 3 analysts that are needed to certify
 4                           it.
     VOSK -                  Okay. Well let me, let me ask you this, please read number 4 and
 5
                             clarify if I’m wrong. Does 4 not require that in calculating the
 6
                             mean and CV the data from all analysts must be used?
 7   SWENSON -               It does say the average of the results from all of the analysts are
                             computed.
 8
     VOSK -                  It doesn’t say, but you can ignore them if you just want to rely on
 9
                             3.
10   SWENSON -               No it does not say that.
     VOSK -                  So if we combine 3 and 4, is it reasonable to say that a minimum
11
                             of 3 is needed, but if more do it we have to include everybody?
12
     SWENSON -               That’s correct.
13   VOSK -                  So when you sign your declaration then are you not talking about
                             everybody’s data? I mean after all, that’s the only way you can
14
                             comply with the protocols, correct?
15
     SWENSON -               When I’m signing it I’m looking at my own values and that’s what
16                           I’m going off of. I’m making sure that my own values are correct,
                             and that they are what I tested.
17
     VOSK -                  Okay. I just want to make sure here. I’m not talking about the
18
                             worksheet. I am talking about the declaration.
19   SWENSON -               Okay.
     VOSK -                  So when you sign that declaration you’re not saying that anybody
20
                             else’s numbers complied with the protocol?
21
     SWENSON -               It said I examined and tested the solution. So I examined it and
22                           tested it, so that’s what I’m signing.
     VOSK -                  Right. But the sentence right after that is the one I’m focusing on.
23
     SWENSON -               It says it was found to conform to those standards established by
24
                             the state toxicologist.
25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 66
 1   VOSK -                  Okay. Now those standards require all of the analysts as we’ve
                             just discussed?
 2
     SWENSON -               Yes.
 3
     VOSK -                  Okay. So I guess my question is, when you sign that are you
 4                           signing off on those final calculations which include everybody’s
                             data, the mean, the standard deviation and the CV that we see on
 5
                             the worksheet?
 6
     SWENSON -               Yes. I would say I would take that into consideration when I sign
 7                           that form.
     VOSK -                  It’s perfectly fine, I’m not trying to pick again, I’m just trying to be
 8
                             clear here. When you’re signing that declaration then, are you
 9
                             saying that the solution as tested by everybody satisfied the
10                           protocols, or are you just talking about yourself?
     SWENSON -               I’m just talking about myself when I sign it. I know that I tested it
11
                             correctly and that the values that I got are the correct values.
12
     VOSK -                  So then in effect, that declaration that’s up anywhere, you don’t
13                           expect anybody to rely on that to say that the solution actually
                             satisfied the protocols which would require consideration of
14
                             everybody’s data?
15
     SWENSON -               Could you repeat that?
16   VOSK -                  Yeah. You’re not actually expecting people when they read your
                             declaration, you’re not expecting people to actually say, read
17
                             through the protocols and say okay, what Ms. Swenson’s telling
18
                             us is that, considering everybody’s data the way the protocols
19                           say, this simulator solution satisfied those protocols. You don’t
                             want, that’s not what you’re telling people. You’re just telling
20
                             people well, I did the data.
21
     SWENSON -               Right. Well, I, my data I know was accurate and is correct in what
22                           it needs to be. And then we also look at the averages in the CV
                             to see if that fits according to the protocol. When I go to court I
23
                             testify about what I did. I don’t know what other people did.
24

25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 67
 1   VOSK -                  Have you ever calculated, did I already ask? Have you ever
                             calculated the mean?
 2
     SWENSON -               I have not, no.
 3
     VOSK -                  Have you ever calculated the CV?
 4   SWENSON -               No I have not.
     VOSK -                  Are you aware of the problem that was found with the simulator
 5
                             solution in August of 2007, or I’m sorry, the simulator solution
 6
                             certifications in 2007?
 7   SWENSON -               Yes.
     VOSK -                  Okay. And what is your understanding of the cause of that
 8
                             problem?
 9
     SWENSON -               It is my understanding that we have a database where we enter
10                           all of our values in, and that that was taking an average of only 12
                             analysts instead of using all of the results that were there.
11
     VOSK -                  Did that at any point in time cause you want to go back and
12
                             reevaluate any of the numbers contained in the statistics on those
13                           worksheets?
     SWENSON -               Well once we determined that there was a problem, of course,
14
                             yes we want to go back and look at the past.
15
     VOSK -                  But did you?
16   SWENSON -               Did I? No, I did not.
     VOSK -                  Do you know how the problem was addressed?
17
     SWENSON -               I’m not sure on the specifics on everything that’s been happening
18
                             with that.
19   VOSK -                  But I mean you’re still testing solutions, right?
     SWENSON -               Yes we are.
20
     VOSK -                  And you’re still signing worksheets, right?
21
     SWENSON -               Yes we are.
22   VOSK -                  And you’re still signing declarations, right?
     SWENSON -               Yes.
23
     VOSK -                  Aren’t you concerned that you might be signing these things and
24
                             the values that are being recorded are still incorrect?
25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 68
 1   SWENSON -               No.
     VOSK -                  Why aren’t you concerned?
 2
     SWENSON -               The database had been corrected. And then we also have
 3
                             troopers from the breath test section who are reevaluating all of
 4                           our work and recalculating all of the averages.
     VOSK -                  How’s the database been corrected?
 5
     SWENSON -               It’s been corrected to now include all analysts’ data in the
 6
                             averages.
 7   VOSK -                  And how are the people redoing the calculations? How are they
                             doing them?
 8
     SWENSON -               I am not sure how they’re doing them.
 9
     VOSK -                  Okay. So you’re just kind of accepting what they’re telling you on
10                           faith?
     SWENSON -               I’m accepting their calculations that they have done. They’re
11
                             being done by two different people.
12
     VOSK -                  So you’re accepting that at faith?
13   SWENSON -               Yes.
     VOSK -                  And have you gone back in and checked the software to see
14
                             yourself whether or not it’s accepting 16 instead of just 12?
15
     SWENSON -               I am not familiar with the software. I wouldn’t even know where to
16                           look.
     VOSK -                  Okay. Have you gone in and done a test run where you entered
17
                             just 12 rows of data and then you, maybe 13 or 14 rows of data to
18
                             see if it’s was working correctly now?
19   SWENSON -               No I have not.
     VOSK -                  I’m going to hand you what has been marked as Exhibits 19, 20,
20
                             21 and 22. Can you identify those for the Court?
21
     SWENSON -               These are worksheets for quality assurance solutions.
22   VOSK -                  Okay. And those are, the quality assurance solutions, those are
                             the ones that are used to calibrate the instruments, correct?
23
     SWENSON -               Yes.
24

25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 69
 1   VOSK -                  Your Honor, if I could have just a moment. And did you sign each
                             of those?
 2
     SWENSON -               Yes I did.
 3
     VOSK -                  And did you do a declaration on each of those?
 4   SWENSON -               I believe so yes.
     VOSK -                  Okay. And I’m going to hand you what’s been marked as Exhibit
 5
                             23. Can you identify that for the Court?
 6
     SWENSON -               This is a correction to quality assurance solution certificate signed
 7                           by Ann Marie Gordon.
     VOSK -                  And what does it say? Read it to yourself and then tell us what it
 8
                             says.
 9
     SWENSON -               It’s stating that some quality assurance solutions were made and
10                           that the values on the certificates were incorrect. However, the
                             value on the worksheets were correct, and this was an
11
                             administrative error only.
12
     VOSK -                  Okay. Now, take a look at the worksheet. Where were those
13                           tests, well let’s start off with 7002, when was that test performed?
                             When did you test the solution?
14
     SWENSON -               I tested that solution on January 11, 2007.
15
     VOSK -                  Okay. And when did you test 7003?
16   SWENSON -               The same date, January 11, 2007.
     VOSK -                  And 4?
17
     SWENSON -               January 11, 2007.
18
     VOSK -                  And 5?
19   SWENSON -               January 11, 2007.
     VOSK -                  And when is that letter of correction dated?
20
     SWENSON -               May 4, 2007.
21
     VOSK -                  Okay. So for five months there were these declarations out there
22                           that had incorrect values that you’d signed under penalty of
                             perjury, correct?
23
     SWENSON -               Yes there were those certificates out there that had administrative
24
                             typo errors on them
25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 70
 1   VOSK -                  Administrative typos, okay. Take a look at 7002. Take a look at
                             the declarations there. How many are there?
 2
     SWENSON -               There are three.
 3
     VOSK -                  And who are the three people?
 4   SWENSON -               Myself, Paige Long and Estruardo Miranda.
     VOSK -                  Do each of you have the exact same average filled in in your
 5
                             declaration?
 6
     SWENSON -               No we do not.
 7   VOSK -                  Okay. What’s filled in in the declaration then?
     SWENSON -               Oh, I’m sorry, excuse me. Yes, on the declaration they would be,
 8
                             they should be all the same.
 9
     VOSK -                  Well can you look and tell me whether or not they are?
10   SWENSON -               They are all the same.
     VOSK -                  And how about on 7003, how many declarations do you have?
11
     SWENSON -               There are three.
12
     VOSK -                  And do each of you have the exact same average on those
13                           declarations?
     SWENSON -               Yes we do.
14
     VOSK -                  And how about 4?
15
     SWENSON -               They are all the same.
16   VOSK -                  And 5?
     SWENSON -               They are all the same.
17
     VOSK -                  So on four QAP solutions, these solutions that are used to
18
                             calibrate the Datamaster, each of them had three toxicologists
19                           signing declarations, swearing under penalty of perjury to the
                             wrong solution concentration?
20
     SWENSON -               On the certificates yes, there was a typo and there was the wrong
21
                             results. When we send out their solutions to the different police
22                           agencies, they actually get a copy of the worksheet which had the
                             correct value. So when they’re calculating the instruments they
23
                             would have the correct value in front of them.
24

25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 71
 1   VOSK -                  What, when you send it out, and we’re talking about QAP, it’s
                             going to the state patrol breath test lab, right?
 2
     SWENSON -               I don’t know exactly who they go to.
 3
     VOSK -                  Okay. Well the declarations go along with that, right?
 4   SWENSON -               I don’t know for a fact if they go with them or not. I know that I
                             make a copy of the worksheet and that goes with the QA
 5
                             solutions to be sent out with them.
 6
     VOSK -                  Okay. What did you think happened with these declarations
 7                           then?
     SWENSON -               I am not sure. I was told that they could be used in court in lieu of
 8
                             our testimony. But I have no knowledge of that, as what they’re
 9
                             actually used for.
10   VOSK -                  Well knowing that, did you ever think it was important that you go
                             back to check to make sure the declaration you’re signing was
11
                             correct?
12
     SWENSON -               At the time I did not go back and check any of my declarations.
13   VOSK -                  How was the mistake found, do you know?
     SWENSON -               I do not know.
14
     VOSK -                  How is it that each of you, you’re each, each of the three people
15
                             on those certifications are trained toxicologists, scientists, how is
16                           it that you each got the exact same wrong mean?
     SWENSON -               They are entered in by the secretary, staff. They are the ones
17
                             who draft up the affidavits for us.
18
     VOSK -                  Now, when those things are entered into court, and you said it
19                           was your understanding they were used in court, do you think that
                             the court or a jury is expecting that the number they’re looking at
20
                             is given to them by a secretary somewhere?
21
     SWENSON -               I don’t know what the jury thinks when they see those.
22   VOSK -                  Okay. Well then, your name is on it, right?
     SWENSON -               Yes.
23
     VOSK -                  And it says you tested the solution?
24
     SWENSON -               Yes.
25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 72
 1   VOSK -                  Who do you think the jury thinks is telling them that it’s okay?
     SWENSON -               Again, I don’t know what the jury thinks when they look at those
 2
                             forms.
 3
     VOSK -                  I’ll hand you a new set. Can you identify those for the Court? I’m
 4                           sorry Madam Clerk, what were the exhibit numbers on those?
     CLERK -                 Those were 24 through 27.
 5
     SWENSON -               This is a review of the simulator solution that was done by
 6
                             Trooper Gullberg and Trooper Denton.
 7   VOSK -                  Okay. Now, did you go back and double check to see if the, let
                             me ask you this, did you sign a new declaration?
 8
     SWENSON -               I signed an addendum to the declaration that I had originally
 9
                             signed.
10   VOSK -                  Okay. And is there a change to the declaration itself?
     SWENSON -               No.
11
     VOSK -                  Is there anything crossed out on the declaration?
12
     SWENSON -               No. Not for, I mean I haven’t looked through all of them. It
13                           doesn’t look like there was any corrections to the certificates.
     VOSK -                  Okay. So they still all include the same wrong mean?
14
     SWENSON -               The .15 looks like the average solution concentration was 1.898
15
                             on the worksheet. And that’s what it says on my certificate.
16   VOSK -                  Okay.
     SWENSON -               Because that was not the original. That was the one we signed
17
                             on 5-4 of 2007, so it would have been the corrected value.
18
     VOSK -                  Right. And that’s what I’m trying to get to. The new ones that you
19                           signed there are different values in there, correct?
     SWENSON -               Yes.
20
     VOSK -                  Did you check those values to see if they were correct?
21
     SWENSON -               I checked them on October 1st when I rereviewed all of the data.
22   VOSK -                  How did you check them?
     SWENSON -               I took all my chromatograms that I had and I matched up them up
23
                             to the data that I put in there and looked at all the averages to
24
                             make sure that they fit within the range.
25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 73
 1   VOSK -                  But it was the mean that you declared penalty of perjury that had
                             been wrong in the first place, correct.
 2
     SWENSON -               There was a typo in the mean in the first place, yes.
 3
     VOSK -                  So did you go back to check to make sure that the mean was
 4                           correct?
     SWENSON -               I made, yes, I made sure that it was the average that was on the
 5
                             worksheet.
 6
     VOSK -                  But you didn’t go back and recalculate it yourself to make sure
 7                           that it was the right number?
     SWENSON -               No I did not.
 8
     VOSK -                  So the first time you signed the declaration, well let me ask this,
 9
                             so you’re just relying in faith this time on the statistics in the
10                           spreadsheet?
     SWENSON -               And it was reviewed by Trooper Denton and Rod Gullberg.
11
     VOSK -                  So then, what it appears at least to me is that when you’re signing
12
                             off on these things, you’re just really accepting as a matter of faith
13                           numbers that are given to you by either an inanimate object or
                             somebody else?
14
     SWENSON -               The database that we use is accepted in the scientific field as
15
                             something that gives out valid statistics. We just happen to have
16                           an error in the data that we’re putting in there.
     VOSK -                  (Unintelligible)?
17
     SWENSON -               From 14 to 16 analysts. We just were not using all the analysts. It
18
                             is not part of my duties as a toxicologist to go back and re-
19                           manually calculate all of those averages and standard deviations.
     VOSK -                  Don’t you think it’d be a good idea for the scientist to at least
20
                             every once in a while to check to make sure that the numbers
21
                             you’re signing off to are correct?
22   SWENSON -               Like I said, I went back and looked at all my chromatograms to
                             make sure all those were correct, but I did not calculate the
23
                             standard deviation because it is not part of my job duties.
24

25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 74
 1   VOSK -                  It is part of your job duties though to tell people whether or not the
                             simulator solution falls within the protocols, correct?
 2
     SWENSON -               Yes.
 3
     VOSK -                  And for two years we know that your computer program is giving
 4                           us the wrong values in the statistics, correct?
     SWENSON -               Yes it was.
 5
     VOSK -                  Whose job is it to make sure that those numbers are right?
 6
     SWENSON -               I do not know.
 7   VOSK -                  When did you find out about the Ann Marie Gordon matter?
     SWENSON -               I found out in July when she resigned.
 8
     VOSK -                  And how did you find out?
 9
     SWENSON -               I was actually at a conference in Florida and I found out over the
10                           phone.
     VOSK -                  And do you know what occurred?
11
     SWENSON -               They did not tell us at that point what had occurred. It was later
12
                             on that Dr. Logan disclosed to us why she had resigned.
13   VOSK -                  I’ve got no further questions Your Honor.
     JUDGE -                 Cross examination?
14
     LYNCH -                 Can we just have 30 seconds?
15
     JUDGE -                 Go ahead.
16   MONTGOMERY -            Thank you Your Honor.
     JUDGE -                 Okay. Ms. Montgomery.
17
     MONTGOMERY -            Ms. Swenson, is it Swenson or Swanson?
18
     SWENSON -               Swenson.
19   MONTGOMERY -            Swenson, thank you. Ms. Swenson, when you signed the
                             certifications or the declarations, to the best of your knowledge
20
                             was the information contained in there correct?
21
     SWENSON -               Yes.
22   MONTGOMERY -            And when you sign these certifications to the best of your
                             knowledge, were the protocols followed?
23
     SWENSON -               Yes.
24

25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 75
 1   MONTGOMERY -            Did you ever, to the best of your knowledge, sign off on a batch
                             that did not fit within the specified range of .098 to .108?
 2
     SWENSON -               I would not have signed off on something that was outside of the
 3
                             range.
 4   MONTGOMERY -            And Mr. Vosk you a bit about, and I don’t know the specific exhibit
                             numbers up there, but I believe they were the QA solutions 07002
 5
                             through 07005, and those were that had the administrative error
 6
                             with, when the mean concentration on the alcohol is entered.
 7                           When the information in these declaration was changed, when the
                             mean alcohol concentration was corrected to what was stated in
 8
                             the worksheet, did this change the actual results of those tests?
 9
     SWENSON -               No. As I stated before, the result that was on the worksheet was
10                           the correct results.
     MONTGOMERY -            Okay. So this is just a product of someone typing in the wrong
11
                             information from the worksheet?
12
     SWENSON -               Correct.
13   MONTGOMERY -            And I just wanted to clarify, Mr. Vosk had asked you a question
                             about all three of you, I believe it was you, Paige Long and
14
                             Estruardo Miranda, that all three of you got the wrong mean, and I
15
                             just wanted to clarify that does this mean, this means that the
16                           wrong mean was entered in a declaration incorrectly for all three
                             of you, correct?
17
     SWENSON -               Correct.
18
     MONTGOMERY -            And for all three of you on 07002 through 07005 this was
19                           corrected to indicate the correct mean that was on the worksheet,
                             correct?
20
     VOSK -                  I’m going to object in part to that, basis of knowledge as to the
21
                             correct mean, but if she’s just recording what’s on the worksheet,
22                           I won’t object to that.
     JUDGE -                 Overruled.
23
     SWENSON -               Could you repeat the question please?
24

25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 76
 1   MONTGOMERY -            Yes. When this mean was changed from I believe, like looking at
                             07002 for example, it was originally recorded, the mean
 2
                             concentration was originally recorded as just .04 and was
 3
                             corrected to .0473. This data was now entered into the
 4                           declaration as what was specifically reflected on the worksheet,
                             correct?
 5
     SWENSON -               Correct.
 6
     MONTGOMERY -            Looking specifically at these quality assurance solutions that you
 7                           have before you, and thinking about the computer error that was
                             discovered or the (unintelligible) error that was discovered I
 8
                             believe it was in August of this year, did this computer error to the
 9
                             best of your knowledge did this affect the three results?
10   SWENSON -               No it did not.
     MONTGOMERY -            Okay. So this only in theory affected results on solutions with
11
                             more than 12?
12
     SWENSON -               Correct.
13   MONTGOMERY -            Now, did any of the errors in this software to the best of your
                             knowledge have any affect on solutions that were sent out to
14
                             Skagit County or any of the counties in Western Washington?
15
     SWENSON -               I believe it affected, to the best of my knowledge no.
16   MONTGOMERY -            Okay. To the best of your knowledge, would the errors in the
                             software affect results for solutions used in, or subject samples
17
                             obtained in Skagit County or Western counties in Western
18
                             Washington?
19   SWENSON -               I believe it would not affect those values in Skagit or Western
                             Washington.
20
     MONTGOMERY -            No further questions Your Honor.
21
     JUDGE -                 Okay, thank you. Mr. Vosk?
22   VOSK -                  Yes Your Honor. Ms. Swenson, you indicated that you wouldn’t
                             have signed off on something that was outside of the limits of the
23
                             protocols?
24
     SWENSON -               Correct.
25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 77
 1   VOSK -                  Outside of the parameters. How do you know?
     SWENSON -               I would look at the worksheet and the values in the worksheet if
 2
                             they were outside of what they would be expected, I would not
 3
                             sign off on it.
 4   VOSK -                  When you say the values in the worksheet, what values are you
                             talking about?
 5
     SWENSON -               My values and the average value.
 6
     VOSK -                  What about the CV? Isn’t that part of the protocol?
 7   SWENSON -               Yes. And I would look at the CV as well.
     VOSK -                  So how do you know that number’s not wrong?
 8
     SWENSON -               For these particular sheets that I’m looking at?
 9
     VOSK -                  Correct. Any of the ones that you’ve signed.
10   SWENSON -               Well we get the, I don’t calculate them if that’s what you’re getting
                             at. I don’t calculate them. I am looking at that number that is
11
                             calculated by the database and I’m looking just at that.
12
     VOSK -                  And for two years that number was wrong.
13   SWENSON -               It did not include all the analysts. It was right for the analysts that
                             it included, but it did not include all.
14
     VOSK -                  Well since it’s supposed to be a calculation including 16 and it
15
                             didn’t have all those numbers, the calculation is wrong, wasn’t it?
16   SWENSON -               It was wrong in the fact that it did not include all analysts.
     VOSK -                  So if we took a look at all those numbers and tried to calculate the
17
                             mean based on all those numbers, the software gave us the
18
                             wrong answer.
19   SWENSON -               It would be slightly off, yes.
     VOSK -                  And if we went through and calculated the CV based on all the
20
                             data that was there, the software gave us the wrong answer.
21
     SWENSON -               It could be slightly off, yes.
22   VOSK -                  So how do you know it’s not giving the wrong answer now?
     SWENSON -               Well on this particular, I guess what are you referring to, before I
23
                             answer that question?
24

25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 78
 1   VOSK -                  I mean for before this thing was discovered three months ago,
                             any time you came into court and would testify or any time you
 2
                             signed any of these things, you would have told everybody what
 3
                             you’re telling us now, everything’s okay, everything works fine.
 4   MONTGOMERY -            Your Honor, I’m going to object. This is argumentative.
     JUDGE -                 When they finish the question, don’t answer it until I have a
 5
                             chance to rule on the objection.
 6
     VOSK -                  And so now you’re back here and essentially saying the same
 7                           thing you would have said three months ago, everything’s fine, it’s
                             okay. But back then you didn’t check, and because you didn’t
 8
                             check it was wrong.
 9
     MONTGOMERY -            Your Honor, same objection.
10   JUDGE -                 Excuse me. Go ahead and let him finish the question.
     VOSK -                  If you haven’t checked now, how do you know that they’re not
11
                             wrong out?
12
     JUDGE -                 Objection sustained.
13   VOSK -                  Quick question. On the, I think I handed up something, this is
                             Exhibit 14 and it talks about that software problem. And the State
14
                             asked you, or the County, I’m sorry, asked you about you know,
15
                             the only problem being going from the expanding up over 12
16                           people you, in that first paragraph do you see an indication about
                             another error with respect to precision?
17
     SWENSON -               The last sentence says the program also contained an error in the
18
                             calculation used to determine precision. However, this did not
19                           affect the acceptability of any solution.
     VOSK -                  Okay. So now let me ask you, you said that you’re certain that
20
                             they’ve already taken care of this over 12 problem. What was
21
                             that problem that the software also had with respect to precision,
22                           what was that second error?
     SWENSON -               I do not know.
23
     VOSK -                  Do you know if that error’s been fixed?
24
     SWENSON -               I don’t know.
25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 79
 1   VOSK -                  And now finally, you indicated that you didn’t, that the errors that
                             occurred in the lab would not affect any tests in Skagit County…?
 2
                             I’m sorry.
 3
     SWENSON -               Sorry. Ask your question please.
 4   VOSK -                  No, no, no. In that sheet, you’re aware that 8 people were
                             affected that has already been admitted out on the other side of
 5
                             the mountains, right?
 6
     SWENSON -               Correct.
 7   VOSK -                  How do you know nobody’s test here in Skagit County is not
                             affected?
 8
     SWENSON -               I said to my knowledge I didn’t know.
 9
     VOSK -                  Okay. So you don’t in an absolute sense?
10   SWENSON -               Correct.
     VOSK -                  As far as you know, somebody’s test could be affected?
11
     SWENSON -               Correct. I don’t know.
12
     VOSK -                  How many breath tests have you ever conducted?
13   MONTGOMERY -            Objection Your Honor, beyond the scope.
     JUDGE -                 Sustained.
14
     VOSK -                  Are you an expert with respect to breath tests?
15
     SWENSON -               With respect to what parts of breath testing?
16   VOSK -                  Well, you said that nobody’s breath test would be affected out
                             here in Skagit County. So what I’m trying to do is to look into the
17
                             basis of that. And with respect to that Your Honor, can we
18
                             sidebar. I just know we addressed that at the last objection.
19   JUDGE -                 Go ahead.
     VOSK -                  No further questions Your Honor.
20
     JUDGE -                 Thank you. Any recross?
21
     MONTGOMERY -            No thank you Your Honor.
22   JUDGE -                 Okay thank you. Any objection to releasing Ms. Swenson
                             altogether?
23
     VOSK -                  No objection Your Honor.
24
     MONTGOMERY -            None from the State.
25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 80
 1   JUDGE -                 Okay, Ms. Swenson, you’re excused as a witness altogether.
                             You will not be required to return to court. Defense may call it’s
 2
                             next witness.
 3
     VOSK -                  May I have just a minute Your Honor?
 4   JUDGE -                 Okay. Would you raise your right hand? Do you solemnly swear
                             or affirm any testimony you give in connection with today’s
 5
                             proceeding will be the truth?
 6
     PETERSON -              I do.
 7   JUDGE -                 Okay thank you. Actually you need to go around that side to get
                             to the witness stand, so it’s a long walk.
 8
     VOSK -                  Ms. Peterson, can you…?
 9
     JUDGE -                 Your witness.
10   VOSK -                  Ms. Peterson, can you please state your full name for the record?
     PETERSON -              Brianna Lynn Peterson.
11
     VOSK -                  And what is your current profession?
12
     PETERSON -              I am a forensic scientist.
13   VOSK -                  And how long have you been so?
     PETERSON -              I’ve been employed at the Washington State Toxicology Lab since
14
                             May of 2007.
15
     VOSK -                  And have you conducted simulator solution certifications?
16   PETERSON -              I have.
     VOSK -                  And approximately how many have you done?
17
     PETERSON -              I would estimate less than 20. I’m not sure of an exact number.
18
     VOSK -                  I’m just going to hand forward what’s been marked as Exhibit 4.
19                           It’s just a copy of the protocols so that you can refer to those. Are
                             you acquainted with those protocols?
20
     PETERSON -              I am.
21
     VOSK -                  And I’m going to ask you just before we get into the questioning, if
22                           you can turn to the part of certification and just read through the 5
                             steps so you’re familiar with that.
23
     PETERSON -              First 5 steps? Okay.
24

25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 81
 1   VOSK -                  Yeah. And so you understand the parameters that have to be
                             satisfied in order to comply with the protocols?
 2
     PETERSON -              I do.
 3
     VOSK -                  Okay. And just for illustrative purposes just for you to review too,
 4                           I’m going to hand you a certificate that’s got a worksheet and
                             declaration in there so you can use as a reference as we go
 5
                             through them, okay?
 6
     PETERSON -              Okay.
 7   VOSK -                  When you sign your worksheet what are you signing to?
     PETERSON -              When I sign the worksheet I’m just verifying that I was an analyst
 8
                             that tested this solution and that my results are on this worksheet.
 9
     VOSK -                  Okay. And are you signing off on the statistics in that worksheet?
10   PETERSON -              I am signing off that my results are entered, that they met the
                             certifications and the protocol.
11
     VOSK -                  Okay. And what certifications are those?
12
     PETERSON -              It states that my values must be between .098 and .108.
13   VOSK -                  It says that your values personally have to?
     PETERSON -              The values that I tested, correct.
14
     VOSK -                  Where does it say that in the protocol?
15
     PETERSON -              Under certification, number 5. I guess you’re right, it says the
16                           average solution concentration. But I personally have looked to
                             make sure that the samples that I tested fall between .098 and
17
                             .108.
18
     VOSK -                  What if they don’t?
19   PETERSON -              Then I would retest the solution.
     VOSK -                  But couldn’t the mean still be within the .098 to .108 even if one of
20
                             your values was outside of that range?
21
     MONTGOMERY -            Your Honor, I’m going to object at this point to the cumulative
22                           nature of this. I think we’ve gone over this a number of times in
                             every witness, and we don’t need every single toxicologist to
23
                             testify to this.
24
     JUDGE -                 Mr. Vosk, is this not cumulative at this point in time?
25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 82
 1   VOSK -                  If the State’s willing to stipulate to certain things Your Honor, we
                             can make this go much quicker. But if there’s a toxicologist that
 2
                             does have a different understanding or can give us some of the
 3
                             information we want or knows the correct things to do, I need to
 4                           try to get that. Honestly, it’s not cumulative because each one of
                             these individuals is performing their own tests. So their own
 5
                             understanding, their own process and their own procedure is
 6
                             critically important. If the current witness is called as a witness in
 7                           a case, somebody doesn’t care what Capron’s understanding was
                             or Capron’s methodology was. They care what her understanding
 8
                             was. So in that sense I don’t think it’s cumulative because it’s
 9
                             each individual toxicologist in the lab that counts. Again, if the
10                           State wants to stipulate to certain things, I can skip this. If they’ll
                             stipulate that everybody has a certain understanding and does
11
                             things a certain way, I can skip and go onto other things.
12
     JUDGE -                 I don’t think the State objected to have she proceeded. Her
13                           understanding of what the declaration says is irrelevant. The
                             declaration is right out there and in fact it’s in criminal rules 6.13.
14
                             As you’ve pointed out ad nauseum, I’ve got it in front of me right
15
                             here. Her understanding of that criminal rule is irrelevant because
16                           she’s a scientist.
     VOSK -                  I’m going to move on Your Honor. When you sign your
17
                             declarations, do you rely on those statistics?
18
     PETERSON -              Which statistics are you referring to?
19   VOSK -                  The statistics on the worksheet.
     PETERSON -              I’m just verifying that the values I entered fall in between .098 and
20
                             .108.
21
     VOSK -                  Okay. How about when you sign the declaration?
22   PETERSON -              Can you, which declaration? This worksheet?
     VOSK -                   No. The declaration that goes along with the worksheet.
23
     PETERSON -              With the affidavit?
24
     VOSK -                  Yes.
25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 83
 1   PETERSON -              Can you restate the question?
     VOSK -                  Are you relying on the statistics that are contained in the
 2
                             worksheet?
 3
     PETERSON -              Yes.
 4   VOSK -                  And have you ever checked those statistics to see if they’re
                             correct?
 5
     PETERSON -              I check to see that the statistics are what the protocol says they
 6
                             have to be.
 7   VOSK -                  But have you ever checked to see if the values reported were
                             correct?
 8
     PETERSON -              No I have not.
 9
     VOSK -                  Could you?
10   PETERSON -              As far as?
     VOSK -                  Do you know the math in order to sit down and do it?
11
     PETERSON -              To calculate standard deviation? Yes.
12
     VOSK -                  Okay. Can you draw up on the board the formula for standard
13                           deviation for me?
     PETERSON -              Sure.
14
     VOSK -                  Please do. And while you’re up there, can you write down the
15
                             explanation for the CV? Now, you can return to your seat for a
16                           second. If I can have just a moment Your Honor as I’m just
                             looking for an exhibit? And I apologize to the Court. I am
17
                             handing to you what’s been marked as Exhibit 7, 8, 9 and 10.
18
                             Can you look at those and tell me if your name appears in the
19                           signature line there?
     PETERSON -              It does.
20
     VOSK -                  Okay. Now, on each of those, when does the worksheet indicate
21
                             that you’ve tested those solutions?
22   PETERSON -              On July 11, 2007.
     VOSK -                  Does it say, is that the same day on each?
23
     PETERSON -              It is.
24

25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 84
 1   VOSK -                  Okay. Now what date does your declaration indicate that you,
                             that the solution was prepared?
 2
     PETERSON -              July 12, 2007.
 3
     VOSK -                  And is that the same on each of those?
 4   PETERSON -              It is.
     VOSK -                  So for each of those, you’ve indicated that you tested the solution
 5
                             before it was prepared?
 6
     PETERSON -              The affidavit indicates that it has an improper date on it, yes.
 7   VOSK -                  Okay. For solution number 7019, can you to the board and
                             calculate the CV for us?
 8
     PETERSON -              Would you have a calculator that I could use?
 9
     VOSK -                  I’ve got a good one right here. Can you do that at the board for
10                           us so the Court and everybody can see how it’s done please? Do
                             want some paper and a pencil to work with?
11
     PETERSON -              That would be great.
12
     VOSK -                  I’m sorry. Sorry Your Honor as I gave her a cheat sheet. And
13                           Ms. Swenson, I’m sorry, as you go through.
     PETERSON -              Ms. Peterson.
14
     VOSK -                  Ms. Peterson, I’m sorry. Can you just put down as you’re going
15
                             through when you get to mean and the standard deviation and the
16                           CV so we can kind of follow through?
     PETERSON -              Sure.
17
     VOSK -                  Thank you.
18
     PETERSON -              So the average was 4.8266 times 10 to the negative 3. I believe
19                           the protocol says that they are on that to 4 decimals which would
                             be .0483 for the average. It’s a little more complex.
20
     VOSK -                  Yeah.
21
     PETERSON -              Any time I try to use the square root function it doesn’t take what
22                           I’m doing, so.
     VOSK -                  Will this calculator be easier to work with?
23
     JUDGE -                 Well I’ll tell you what. It’s just about noon. I don’t see any reason
24
                             to have Ms. Peterson needs to be doing this under the guns,
25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 85
 1                           standing up, the camera hovering over. We’ll take the noon
                             recess. We’ll resume at 1 o’clock. Ms. Peterson has the
 2
                             opportunity to do these calculations during the lunch hour.
 3
     VOSK -                  Your Honor, with respect to that…?
 4   JUDGE -                 Yes.
     VOSK -                  And I perfectly understand and agree with not having her have to
 5
                             sit under the camera. It would make me nervous as well. Can we
 6
                             have her do it, can you recess but have her do it in the courtroom
 7                           before she goes out? I’d like to have the calculations done so we
                             know that there had been no outside influence to this?
 8
     JUDGE -                 Is that (unintelligible) Ms. Peterson?
 9
     PETERSON -              That’s fine.
10   JUDGE -                 It’s the lunch hour. We’re going to take lunch. We’ll resume at 1
                             o’clock. Thank you Ms. Peterson.
11
     JUDGE -                 And I believe the examination of Ms. Peterson was proceeding at
12
                             the time we broke. Defense may continue.
13   VOSK -                  Thank you Your Honor. I’m sorry Your Honor, I’m just trying to
                             get the exhibits in order. Ms. Peterson, can you go up to the
14
                             board and document the results of your calculations?
15
     PETERSON -              I can, but as I was sitting here before the proceeding started, I
16                           realize the error I made in my calculations. So would you like
                             me…?
17
     VOSK -                  Oh please correct it, yes. I don’t want you putting any…
18
     PETERSON -              I would need the piece of paper that you had before. And it will
19                           take some time, I’m sorry.
     VOSK -                  And you need the exhibit as well, don’t you?
20
     PETERSON -              Correct. I had a piece of paper. I just need the exhibit.
21
     VOSK -                  Okay. There you go.
22   PETERSON -              Thank you.
     VOSK -                  Now while you’re doing that, can I ask you a couple of questions?
23
     PETERSON -              Sure.
24
     VOSK -                  Did you talk about this with anybody during lunch?
25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 86
 1   PETERSON -              About my testimony specifically?
     VOSK -                  About the calculation of these values.
 2
     PETERSON -              I mentioned that I was doing calculation, but how I realized I did it
 3
                             wrong was looking at my formula and no one told me what the
 4                           formula was, is that what…?
     VOSK -                  But did you talk to anybody about your calculations?
 5
     PETERSON -              I said that I was calculating the standard deviation, correct.
 6
     VOSK -                  And did anybody ask you any questions in return?
 7   PETERSON -              No.
     VOSK -                  Did you get any advice from anybody?
 8
     PETERSON -              Just that it would be fine.
 9
     VOSK -                  That what would be fine?
10   PETERSON -              My testimony.
     VOSK -                  What about it was going to be fine?
11
     PETERSON -              Testimony in general.
12
     VOSK -                  Okay. Well go ahead and do the calculations.
13   PETERSON -              Okay. Could you provide me with the calculator that has the
                             square function please?
14
     VOSK -                  This is my baby so please be careful.
15
     PETERSON -              Okay.
16   JUDGE -                 Sir, do you plan on taking pictures? Are you planning on taking
                             pictures Sir? Okay. It’s pretty much standard practice to let the
17
                             Court know that in advance and with the Court’s permission.
18
                             Permission’s granted but that would be standard course of
19                           protocol.
     VOSK -                  And Your Honor, while the witness is going through the
20
                             calculations, can you refresh my memory? Did I already ask
21
                             about whether she’d done the calculations on the worksheets and
22                           for declarations and go through the 2005 to 2007 problems,
                             because I don’t want to rehash it if I already have.
23
     JUDGE -                 No I don’t believe so.
24
     PETERSON -              Do you want me to explain it on the board?
25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 87
 1   VOSK -                  Yes if you can.
     PETERSON -              Okay. I calculated the average to be .0483 and I then took every
 2
                             value of what we actually observed, like .048, .047 and I
 3
                             subtracted that from the average just taking your expected minus
 4                           the observed. And after I subtracted that I squared it and then
                             what I left off on my equation earlier is that you need to sum all of
 5
                             those values together. So I did that and I subtracted it by 14
 6
                             since there was 15 observed things. I took the square root of it
 7                           and the value that I got was .001 for the standard deviation.
                             Would you like me to write any of the other math down that I did
 8
                             or…?
 9
     VOSK -                  What’s the value that’s recorded in the statistics?
10   PETERSON -              On the worksheet?
     VOSK -                  Yes.
11
     PETERSON -              .00103.
12
     VOSK -                  Okay. What did you come up with?
13   PETERSON -              .00103336827.
     VOSK -                  But can you report it to the same precision that it’s recorded
14
                             statistically?
15
     PETERSON -              Yes, sure.
16   VOSK -                  And can you now calculate the CV for us?
     PETERSON -              I actually wouldn’t be comfortable telling you the precise CV. I’ve
17
                             never calculated it by hand.
18
     VOSK -                  But you…?
19   PETERSON -              I believe this is the formula, but I’ve never calculated it by hand.
     VOSK -                  If you’ve written down the formula that you believe is it, please
20
                             just do the calculation.
21
     PETERSON -              With the formula that I’ve provided? Okay. With the caveat that I
22                           wouldn’t actually use it in the program’s use?
     VOSK -                  Please.
23
     PETERSON -              I have 2.1387.
24
     VOSK -                  Can you write that down on the board?
25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 88
 1   PETERSON -              Sure. So I just took this number and divided it by this number
                             times 100 percent.
 2
     VOSK -                  Which number, how did you do the, how did you calculate that
 3
                             second number, that CV?
 4   PETERSON -              For that CV? I took the standard deviation of .001033, divided it
                             by .0483 times 100 to get the value of 10.1387 percent.
 5
     VOSK -                  Okay. And you used all of the significant figures, the .103 in that
 6
                             calculation?
 7   PETERSON -              Yeah. I think the calculator still had all the extra numbers, so I
                             don’t think I used the truncated rounded number.
 8
     VOSK -                  But you used the .103?
 9
     PETERSON -              (Unintelligible).
10   VOSK -                  I’m sorry. I just want to make sure we’re using the correct
                             numbers.
11
     PETERSON -              That’s okay. So yeah, I used this number and this number and I
12
                             arrived at 1387.
13   VOSK -                  Okay. Why don’t you go ahead and have a seat again.
     PETERSON -              Okay.
14
     VOSK -                  What’s this mean reported as on that sheet?
15
     PETERSON -              It’s reported as .0483.
16   VOSK -                  So exactly the same thing you have?
     PETERSON -              Correct.
17
     VOSK -                  And the sheet is a worksheet?
18
     PETERSON -              Correct.
19   VOSK -                  And that’s the one that Sgt. Gullberg correctly and signed off on?
     PETERSON -              I’m not sure about that. I don’t believe so.
20
     VOSK -                  I’m going to hand you Exhibit 15 which is the one I believe we
21
                             started with. Take a look at that.
22   PETERSON -              Okay.
     VOSK -                  And just verify that that’s the same simulator solution we’re talking
23
                             about, but one that’s been signed off on by Sgt. Gullberg and
24
                             Trooper Denton please.
25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 89
 1   PETERSON -              Correct.
     VOSK -                  Okay. So is the mean that you calculated the same as in the
 2
                             corrected sheet?
 3
     PETERSON -              It is.
 4   VOSK -                  Is the standard deviation the same?
     PETERSON -              It is.
 5
     VOSK -                  What about the CV?
 6
     PETERSON -              It varies.
 7   VOSK -                  If I had you do the calculations on 7020 and 7021, do you think
                             we’d might also find different values for the CV?
 8
     MONTGOMERY -            Your Honor, I’m going to object. This is speculation.
 9
     VOSK -                  Your Honor, I can have her do it.
10   JUDGE -                 Objection’s sustained.
     VOSK -                  Do you have an opinion in your confidence?
11
     PETERSON -              In my confidence of what?
12
     VOSK -                  The CV as reported by Trooper Gullberg?
13   PETERSON -              I believe they’re accurate.
     VOSK -                  Even though the one that you just calculated and the one that’s in
14
                             his corrected sheet are different?
15
     PETERSON -              I’m not aware if he used, like how many significant used when he
16                           was calculating the percent CV, but I still have confidence in
                             them, yes.
17
     VOSK -                  Do you want to try the calculation another way using different
18
                             significant figures?
19   PETERSON -              No.
     VOSK -                  Do you think you can come up with the answer he has?
20
     PETERSON -              Come up with the answer?
21
     VOSK -                  Well, let me rephrase that. Let’s assume for a second you’ve got
22                           the correct formula there and you’ve done the math correctly,
                             then, I’m sorry I was trying to ask this in an appropriate fashion.
23
                             Will you take a moment to see if there’s a way that you can adjust
24
                             your numbers to come up with this?
25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 90
 1   MONTGOMERY -            Your Honor, I’m going to object based on (unintelligible). She’s
                             admitted that the numbers vary and that she still has, she still
 2
                             believes the numbers are accurate. I don’t believe that making
 3
                             her recalculate her numbers using every possible significant
 4                           figure is relevant to the issue, it’s not necessary.
     VOSK -                  Your Honor, if the State wants to stipulate that the CV is wrong in
 5
                             each of these, that’s fine. Otherwise I can have the witness
 6
                             calculate each one.
 7   JUDGE -                 I guess that would be the Court’s determination of whether of not
                             it’s relevant.
 8
     VOSK -                  But Your Honor, I’m sorry. May I make an offer of proof?
 9
     JUDGE -                 You may.
10   VOSK -                  The relevance is two-fold. One, the State keeps saying that, or
                             keeps bringing up the fact that Gullberg and Denton have gone
11
                             back through and corrected numbers, and that now that they’ve
12
                             gone back through and redone this, but we can have confidence
13                           in what they’re telling us because they’re telling us it’s okay. And
                             they’re saying that oh, no the differences, they’re so small
14
                             because they’re telling us they’re so small. One of the things
15
                             we’re trying to show is one, the new numbers aren’t correct. And
16                           two, when we’re talking about how small things are, we’re trusting
                             people who are now coming back kind of second attempt, a
17
                             second try when they know something was done wrong the first
18
                             time, trying to show us what the real stuff is and they’re still doing
19                           it wrong.
     JUDGE -                 Are Gullberg and Denton subpoenaed?
20
     VOSK -                  No Your Honor. However the witnesses time after time are
21
                             saying that they’re relying on Gullberg and Denton. And so the
22                           soundness of the work done by Gullberg and Denton I think is
                             extraordinarily relevant. And what the current witness is showing
23
                             us is whether or not the work that they did was sound, whether or
24
                             not those new numbers really can be relied on. Moreover, each
25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 91
 1                           of the witnesses have signed off saying that yes, we’ve looked at
                             this and everything’s okay now. Again, if the State wants to
 2
                             stipulate, we don’t have to go through it.
 3
     JUDGE -                 What does the degree of variance between your results and those
 4                           of Sgt. Gullberg?
     PETERSON -              The vary by .0004.
 5
     JUDGE -                 .0004?
 6
     PETERSON -              Correct.
 7   VOSK -                  And I believe you will find varying degrees of variability with the
                             others Your Honor.
 8
     JUDGE -                 Assuming then hearing you saying that Mr. Vosk, you’ve done the
 9
                             calculations?
10   VOSK -                  Yes Your Honor at 3:30.
     JUDGE -                 (Unintelligible) carrying outside the 5 percent deviation?
11
     VOSK -                  None of the recalculations brought it outside of the 5 percent, but I
12
                             only did a very small number. I only did a few of the QAP ones
13                           and it was just because I couldn’t sleep.
     JUDGE -                 Does your offer of proof, are you suggesting that if she does
14
                             these that they’ll be anywhere outside of 5 percent mean
15
                             deviation?
16   VOSK -                  I’m not suggesting that they’ll take it outside of the 5 percent, but
                             what I am suggesting is that when we get to the end here, one of
17
                             the arguments we’re making is you can’t, we’re unable to rely on
18
                             any of the numbers reported to us in the first place because when
19                           they’re swearing to us that certain things are correct, they haven’t
                             gone back and checked them. They haven’t done the
20
                             calculations on it. Once they find out the problems, I mean it was
21
                             in all the papers out there September 10th what happened and
22                           they had all this time to prepare and they called in Ex-Sgt.
                             Gullberg and Trooper Denton, and supposedly they were real
23
                             careful doing this. Yet when they went through, the only thing
24
                             they were looking for was this difference because of this
25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 92
 1                           increasing of over 12 people instead of what I think is, the second
                             problem with the precision. And so in all the QAP’s they didn’t
 2
                             recalculate them. And so I think what we’re going to show is,
 3
                             even when they had the second chance to come back and say to
 4                           everybody, well we can do a good job, we can do it right, we can
                             check this stuff. They failed to and because of that there’s still
 5
                             signing certificates that have wrong numbers which are, they
 6
                             contain material misrepresentations so that even if these specific
 7                           when some takes us outside of ’05, we can’t even trust the
                             numbers that they were based on in the first place and we can’t
 8
                             have any trust that the ones that we haven’t had a chance to go
 9
                             back to and recalculate. I mean Your Honor, are we required to
10                           go back and look at every and look at every single one of these
                             things and recalculate them on our own?
11
     JUDGE -                 No, I’m not saying that at all. But I’m not going to have this
12
                             witness calculating this up here on the stand. You’d think that
13                           Gullberg and Denton are on subpoena. This is not the witness to
                             do it with. This witness has calculated on the stand on one
14
                             instance, on one QA solution that there was a 4 ten thousandths,
15
                             would that be a percent?
16   PETERSON -              It’s expressed as a percent right now.
     JUDGE -                 4 ten thousandths of a percent?
17
     PETERSON -              So it would be even 10 to the I’m not sure what decimals are
18
                             called out, but it would be even more further out.
19   JUDGE -                 So I don’t expect to have her doing calculations while she’s up
                             here on the stand. That would be a fishing expedition which is
20
                             exactly what I was told was not going to be happening here.
21
     VOSK -                  Well I’m not and Your Honor, may I?
22   JUDGE -                 You may.
     VOSK -                  Thank you. We’re not fishing because we’ve done certain
23
                             calculations which I think will show that we can get differences
24
                             before you get out to the fourth decimal point. I think you’ll find
25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 93
 1                           that you’ll get some at the third decimal point, calculations that
                             I’ve done. Whether or not there are those which contain them
 2
                             closer to the decimal point, beyond the decimal point and once we
 3
                             get into further testimony this afternoon with respect to actual data
 4                           being entered, I think what it shows is just the pattern of
                             carelessness which we’re establishing here because these
 5
                             witnesses are saying that they’re depending on the recalculations
 6
                             being done by Trooper Gullberg, or Ex-Sgt. Gullberg and Trooper
 7                           Denton. And what we’re trying to show is that reliance is no
                             better than the reliance they had on a black box before because
 8
                             the numbers aren’t being redone because they’re not being
 9
                             rejected. They’re still wrong.
10   JUDGE -                 You can bring in somebody to testify to that. I’m not going to
                             have them doing the calculations up here on the stand. Do you
11
                             want to bring in Gullberg or Denton, if you want to bring in your
12
                             own expert or statistician, that’s not a problem.
13   VOSK -                  Would Your Honor permit us to get a subpoena on Sgt. Gullberg
                             and we could call him tomorrow?
14
     JUDGE -                 State have any objection to that since that seems to be the issue?
15
     MONTGOMERY -            I haven’t any objection.
16   JUDGE -                 Okay, not a problem. This witness though is not going to be
                             required to run calculations up on the stand ad nauseum. It could
17
                             have been done before.
18
     VOSK -                  Okay Your Honor, thank you. Okay, no further questions Your
19                           Honor.
     JUDGE -                 Thank you. Any questions in way of cross examination for this
20
                             witness?
21
     MONTGOMERY -            Yes there is Your Honor.
22   JUDGE -                 Okay. You may proceed.
     MONTGOMERY -            Ms. Peterson, when you signed these certifications and
23
                             declarations, I don’t know what you term that but they have the
24
                             penalty of perjury language on them, when you sign those, to the
25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 94
 1                           best of your knowledge, was the information contained within
                             those correct?
 2
     PETERSON -              Yes.
 3
     MONTGOMERY -            And when you signed those certifications, to the best of your
 4                           knowledge, were the protocols followed?
     PETERSON -              Yes.
 5
     MONTGOMERY -            Have you ever signed off on a batch, either a simulator solution
 6
                             batch or a QA batch where the results of that batch did not fall
 7                           within the specified range?
     PETERSON -              No.
 8
     MONTGOMERY -            Directing your attention to the affidavits, I believe they, I don’t
 9
                             know what they are, I don’t know what the exhibit numbers are up
10                           there, but they are the QA solutions 07019 through 07022, and
                             they were the ones that have the, you don’t have those up there
11
                             anymore?
12
     PETERSON -              I just have 07019.
13   VOSK -                  What’s she looking for?
     MONTGOMERY -            07019 through 22.
14
     VOSK -                  They’re right here.
15
     PETERSON -              Thank you.
16   MONTGOMERY -            I’m handing you what’s previously been marked as Exhibit 18
                             which is for QA batch 07022. And for 20 and 21 these are
17
                             Exhibits 16 and 17.
18
     PETERSON -              Okay.
19   MONTGOMERY -            Now these are the QA solutions that had the administrative error
                             where the date was entered incorrectly?
20
     PETERSON -              Correct.
21
     MONTGOMERY -            Did the fact that the date was entered incorrectly on the
22                           certifications, did this change the actual results?
     PETERSON -              No it did not.
23

24

25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 95
 1   MONTGOMERY -            Now, in regards to all the calculations that you did here today,
                             isn’t it true that different calculators, different computers, different
 2
                             databases will identify different significant figures for rounding?
 3
     PETERSON -              Yeah. I’m not aware of what like an Excel program, how many
 4                           significant digits it uses versus how many you would manually
                             type into a calculator.
 5
     MONTGOMERY -            So it’s possible that the calculator, the two calculators that you
 6
                             were using to calculate your figures, that those are identifying
 7                           different significant figures for rounding than the Excel database
                             that’s used, of the database that’s used to calculate the numbers
 8
                             on these worksheets?
 9
     PETERSON -              It could yes.
10   MONTGOMERY -            And isn’t it true that on the worksheet that you did the calculations
                             for, I believe that was 07019?
11
     PETERSON -              Correct.
12
     MONTGOMERY -            The number that you came up with for the CV 2.1387, that still
13                           falls within the protocols identified by the state toxicologist for
                             certification, is that correct?
14
     PETERSON -              Correct.
15
     MONTGOMERY -            No further questions for Ms. Peterson.
16   JUDGE -                 Okay, thank you. Mr. Vosk?
     VOSK -                  Thank you Your Honor. I don’t think we have any further
17
                             questions.
18
     JUDGE -                 Okay, thank you. Any objection to Ms. Peterson being excused
19                           altogether?
     VOSK -                  No objection to be excused altogether Your Honor.
20
     JUDGE -                 Okay.
21
     MONTGOMERY -            No objection to being excused.
22   JUDGE -                 Ms. Peterson, you will be excused. You’re not required to return
                             to court. Thank you. Defense may call it’s next witness.
23
     FOX -                   We’ll call Estruardo Miranda Your Honor.
24
     JUDGE -                 Okay, thank you.
25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 96
 1   FOX -                   And Your Honor, would it be alright with the Court if I used this
                             little table like thing up here to put my stuff on?
 2
     JUDGE -                 Absolutely.
 3
     FOX -                   Thank you Your Honor. I kind of like to spread out while I work
 4                           and this will let me do that.
     JUDGE -                 I can appreciate that. Sir, would you raise your right hand
 5
                             please? Do you solemnly swear or affirm any testimony you give
 6
                             in connection with today’s proceeding will be the truth?
 7   MIRANDA -               Yes I do.
     JUDGE -                 Okay, thanks. Sir, if you would have a seat up here in the witness
 8
                             stand and please make yourself comfortable.
 9
     FOX -                   Would you say your name for the record please?
10   MIRANDA -               Yes. My name is Estruardo Miranda.
     FOX -                   And good afternoon Mr. Miranda.
11
     MIRANDA -               Good afternoon.
12
     FOX -                   Mr. Miranda, how long have you been with the toxicology
13                           laboratory?
     MIRANDA -               I’ve been with the state toxicology for a little bit over 6 years now.
14
     FOX -                   In connection with your duties of the state tox lab, you prepare
15
                             simulator solutions, don’t you?
16   MIRANDA -               That is one of my duties yes.
     FOX -                   And you also testify in court?
17
     MIRANDA -               That’s correct.
18
     FOX -                   Would you say perhaps how many times you’ve testified?
19   MIRANDA -               I don’t recall a specific number. It could be hundreds, I mean
                             about a hundred and something, I don’t know.
20
     FOX -                   Let’s talk about simulator solution preparation. There is a process
21
                             and a protocol in place to produce what you would call a certified
22                           solution, isn’t that true?
     MIRANDA -               There is a protocol yes.
23
     FOX -                   And the protocol then, the end result is a solution that’s called a
24
                             certified solution, isn’t that right?
25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 97
 1   MIRANDA -               It’s called an external simulator solution.
     FOX -                   And when it goes to court you have certified that it is prepared
 2
                             appropriately, haven’t you?
 3
     MIRANDA -               We test it in the laboratory and yes, then it would be certified, yes.
 4   FOX -                   So what you do, some of your duties then is to prepare certified
                             simulator solutions?
 5
     MIRANDA -               Well we prepare simulator solution and we go through the
 6
                             process of certifying it.
 7   FOX -                   And when you’re done they are? Certified.
     MIRANDA -               Certified.
 8
     FOX -                   Now, there is a worksheet that exists that lists all the toxicologists
 9
                             who test a given solution, isn’t there?
10   MIRANDA -               Yes.
     FOX -                   And that is part of the standard operating procedure, isn’t it?
11
     MIRANDA -               I don’t know if the standard procedure says, I don’t recall the
12
                             specific word, if it’s standard procedure, then I don’t know if it
13                           says lists all the individuals. I think it lists all the individuals who
                             tested the solution.
14
     FOX -                   Well let me put it to you this way, Mr. Miranda, I’m going to show
15
                             you an exhibit which is Exhibit number 28 I believe. Would you
16                           just take a look at those two pages please?
     MIRANDA -               Okay.
17
     FOX -                   And may I see it back please? So these two documents that you
18
                             just reviewed, they, after you’re done preparing and testing and
19                           then certifying the simulator solution, these two documents
                             become part of the file associated with that simulator solution,
20
                             don’t they?
21
     LYNCH -                 Excuse me Your Honor. The way Mr. Fox is sort of locating
22                           himself, I can’t even see the witness while he’s testifying.
     FOX -                   I’ll attempt to relocate myself.
23
     LYNCH -                 If you could just move a little bit towards the center.
24
     FOX -                   Over this way?
25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 98
 1   JUDGE -                 Thank you Mr. Fox.
     FOX -                   Alright. I have to move my stuff. Sir, these documents, they
 2
                             become a part of the file that pertains to the simulator solution, do
 3
                             they not?
 4   MIRANDA -               I believe they do.
     FOX -                   And the second page of this document is a page that in this case
 5
                             has 14 names on it. And you had a chance to look at it, right?
 6
     MIRANDA -               I didn’t look at how many names. Yes, there are 14 names.
 7   FOX -                   14 names. And the 14 names listed on that form are, well let me
                             put it this way, the form is intended to record the names of
 8
                             persons who tested the simulator solution?
 9
     MIRANDA -               Yes.
10   FOX -                   And it is expected that individuals who did test the simulator
                             solution then would sign their names on that form?
11
     MIRANDA -               Well, what I understand it is that when this paper is given to me
12
                             and I’m checking that I tested the solution, yes.
13   FOX -                   So this paper’s passed around and all 14 people who signed
                             there are signing that they tested the solution?
14
     MIRANDA -               Yes.
15
     FOX -                   And then…
16   LYNCH -                 Excuse me Your Honor.
     JUDGE -                 Yeah, I understand. With all due respect.
17
     FOX -                   Oh I’m sorry. Okay, well I’m going to try to stay over here.
18
     JUDGE -                 If you could please stand around there for Ms. Lynch. Thank you.
19   FOX -                   Alright.
     LYNCH -                 Thank you.
20
     FOX -                   Let me know when I’m out of place.
21
     LYNCH -                 I always do.
22   FOX -                   Alright. This isn’t supposed to be this much fun. Now Sir, this
                             second form here, or the first page of this form, is the entitled
23
                             Datamaster .08 Simulator Solution Certification, right? Now, this
24
                             form is something that is expected to be signed by a person who
25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 99
 1                           is indicated on the worksheet, right? That’s how it works in the
                             lab?
 2
     MIRANDA -               The certification sheet?
 3
     FOX -                   Yeah, let me give you an example. You have number 1, number
 4                           2 is Justin Knoy, his name is on this second sheet, right?
     MIRANDA -               Okay, if you say so, I can’t see it, but I’ll take your word for it.
 5
     FOX -                   I’d like to move forward to you but I’m having a hard time doing
 6
                             that.
 7   MIRANDA -               It’s this side over there.
     FOX -                   Let’s just say that’s it, take me at my word on that.
 8
     MIRANDA -               Okay.
 9
     FOX -                   It’s Justin Knoy. Now, after this form is all filled out by all the
10                           technicians, the toxicologists who have certified it, eventually
                             Justin Knoy is going to see in his mailbox this form on front which
11
                             is the Datamaster Simulator Solution Certification. And he’ll sign
12
                             that as indicated that he did the test indicated on the worksheet.
13   MIRANDA -               We would have to ask him that question, but he, I would assume
                             so, yes.
14
     FOX -                   Well you would, right?
15
     MIRANDA -               Well what I take it is that I tested that solution and I signed that
16                           certificate.
     FOX -                   Right. And so in your lab, because you’re familiar with how things
17
                             work normally in the lab, right?
18
     MIRANDA -               Yes.
19   FOX -                   You’ve been there how long, 6 years now?
     MIRANDA -               6, a little bit over 6 years.
20
     FOX -                   So you know the workings of the lab, how things usually go, right?
21
     MIRANDA -               Yes.
22   FOX -                   And the way things usually go is that every person, well let me put
                             it to you this way, it would be very unusual, in fact unheard of if
23
                             somebody whose name is listed as a toxicologist who tested
24

25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 100
 1                           solution on the worksheet did not subsequently sign the
                             declaration. That’s never been heard of, right?
 2
     MIRANDA -               I would assume that everybody who tested it is signing one.
 3
     FOX -                   Well you know that always happens in the lab. It’s just the way
 4                           things go, isn’t it?
     MIRANDA -               Yes. I never really checked everybody’s certificates to see
 5
                             whether they’re signing it if not.
 6
     FOX -                   But you have seen files right, that have solutions in them, haven’t
 7                           you? That have records pertaining to the creation of a particular
                             solution, you’ve seen files like that?
 8
     MIRANDA -               Oh yeah.
 9
     FOX -                   In fact, when you go to court you, let’s say you’re called to court
10                           today. You’re going to testify right up here in Mount Vernon, and
                             you’re coming to court on solution on 7001.
11
     MIRANDA -               Okay.
12
     FOX -                   You go to a place in your lab, don’t you, and you pick up a file that
13                           pertains to that?
     MIRANDA -               Yes and no.
14
     FOX -                   Well try the yes part first.
15
     MIRANDA -               Let me explain that. What I normally do is at the end of the year I
16                           go back and I photocopy all the simulator solutions that we have
                             had tested for that year and I keep those with me so that in the
17
                             event I go to court, I have pretty much all the solutions that I have
18
                             tested, the worksheets. And I have a file in my briefcase that I
19                           carry them with me, so I don’t do it immediately before going to
                             court but I may do it ahead of time. If I don’t have that number in
20
                             my bag, I may if for example I haven’t put 2007, I have not put all
21
                             the ones in my bag, so I may look and if I don’t have it, I may go
22                           back and pull it, yes.
     FOX -                   So the yes part is you have a file with all the certificates in there.
23
                             The no part is it just might not be at the tox lab before you come
24
                             to court.
25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 101
 1   MIRANDA -               Exactly.
     FOX -                   Okay, good enough. So when you come to court with that file,
 2
                             say pertaining to simulator solution 7001, when you come to court
 3
                             with that file what you have in that file are a number of
 4                           documents, right? You have the worksheet pertaining to that
                             which is page 2 of document, Exhibit number 28.
 5
     MIRANDA -               Yes.
 6
     FOX -                   And then you also have the certification. But you don’t have just
 7                           one certification in your file, so you?
     MIRANDA -               Actually I don’t carry the certifications with me.
 8
     FOX -                   You don’t?
 9
     MIRANDA -               No I do not.
10   FOX -                   You don’t ever bring those to court?
     MIRANDA -               No.
11
     FOX -                   Okay. Do you know if other toxicologists do?
12
     MIRANDA -               I don’t know.
13   FOX -                   But you do bring this document then, the worksheet?
     MIRANDA -               Yes. That’s the only one I carry with me.
14
     FOX -                   Right. And the worksheet then can be used to show a court that
15
                             not just you but perhaps 13 other people tested the same
16                           simulator solution, correct?
     MIRANDA -               It can be used, but most of the time my testimony is what I refer to
17
                             it, I’m there to testify that I tested that solution.
18
     FOX -                   Right. And do you use this document, the worksheet to help you
19                           show what you did?
     MIRANDA -               It doesn’t help me show what I did. It just refreshes my memory
20
                             whether, which number analyst I was who tested it, when I tested
21
                             it, when the solution was prepared.
22   FOX -                   Alright. How many times have you testified in DUI trials where
                             you testified about simulator solutions?
23
     MIRANDA -               I don’t remember.
24
     FOX -                   A lot?
25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 102
 1   MIRANDA -               A lot I would say.
     FOX -                   We’ll take a lot. In those cases, did you have prosecutors who
 2
                             got a copy of a document such as Exhibit 2, the worksheet, and
 3
                             then offered it into evidence in the DUI trial?
 4   MIRANDA -               I don’t recall if they have or not. I would presume that yes, but I
                             don’t recall any specific instances of when they did.
 5
     FOX -                   But you presume yes?
 6
     MIRANDA -               I would presume yes.
 7   FOX -                   Alright, fair enough. So when you have this document, uh oh, I’m
                             doing it again, when you have this document it says on its face,
 8
                             that is the second page, the worksheet, it says in essence that
 9
                             each of these people tested it. Doesn’t it imply that, that each of
10                           these people tested it and found that the solution was within
                             compliance?
11
     MIRANDA -               Well the way I see it is when I receive the form, I looked at
12
                             numbers and I sign it that I tested it on that date.
13   FOX -                   But the form is designed so that any of these toxicologists could
                             take it into court and try to, and prove up the simulator solution as
14
                             being validly made, right?
15
     MIRANDA -               That it’s used that statistics are there yes.
16   FOX -                   Right. Now, the form has the names of all the people who would
                             have tested the solution, isn’t that true?
17
     MIRANDA -               Yes.
18
     FOX -                   And those people who would have tested the solution if they
19                           intend to appear in court would also sign the declaration on the
                             front page which states that, I examined and tested the solution?
20
     MIRANDA -               Well my understanding of the declaration of the certificate that
21
                             you have there is that that certificate can be used in lieu of our
22                           testimony.
     FOX -                   In lieu of, alright. Well let’s just talk about that for a minute.
23
                             Because let’s assume for the moment how it’s exactly how it’s
24
                             going to be used, in lieu of live testimony. So I want you to look at
25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 103
 1                           this document and I’d ask you to look at item or shall I say
                             Toxicologist number 7.
 2
     MIRANDA -               Okay.
 3
     FOX -                   Who is Toxicologist number 7?
 4   MIRANDA -               Ann Marie Gordon.
     FOX -                   If that document was used to prove without live testimony that
 5
                             Ann Marie Gordon tested the solution, it might be a lie, isn’t that
 6
                             true?
 7   MIRANDA -               I don’t know. I don’t know what her signature would mean on the
                             document.
 8
     FOX -                   Well you know of your own knowledge that Ann Marie Gordon
 9
                             was not testing simulator solutions.
10   MIRANDA -               Correct.
     FOX -                   Alright. And so if that document purported to prove for a given
11
                             solution that she was testing simulator solutions and found it to
12
                             comply, that would be a document that lies, wouldn’t it?
13   LYNCH -                 Objection. Number one I don’t think a document can lie, but I
                             think without a better understanding of the parameters of Ms.
14
                             Gordon’s role at the tox lab and whether or not that is a power
15
                             that she can, or is something that she can actually delegate is
16                           under the scope of her employment, I don’t think Mr. Miranda can
                             really answer that question.
17
     JUDGE -                 Overruled.
18
     MIRANDA -               Could you repeat the question?
19   FOX -                   If the document purports to prove that Ann Marie Gordon tested
                             the solution but she did not, then the document would be a lie?
20
     MIRANDA -               If the wording on her document would be exactly as I, as mine
21
                             would be, then I would say it’s misleading.
22   FOX -                   Alright, misleading. It would not be the truth, would it?
     MIRANDA -               Not according to the paper no.
23
     LYNCH -                 May I ask a clarifying question? Are we talking about the
24
                             declaration or the worksheet?
25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 104
 1   FOX -                   The worksheet.
     MIRANDA -               Oh I’m sorry. I thought you meant the declaration.
 2
     FOX -                   Alright, well either way. We’ll leave it with the declaration then. If
 3
                             that’s what you were referring to.
 4   MIRANDA -               If the certification has the exact wording as mine does.
     FOX -                   Alright. Now you knew that Ann Marie Gordon was not testing her
 5
                             own simulator solutions.
 6
     MIRANDA -               Yes.
 7   FOX -                   For what period of time do you have that knowledge that she was
                             not testing her simulator solutions?
 8
     MIRANDA -               What period of time?
 9
     FOX -                   Yes.
10   MIRANDA -               Gosh, I don’t know. I can’t put a definite time frame on that.
     FOX -                   Would the time period have extended for more than a year?
11
     MIRANDA -               Yes.
12
     FOX -                   Would the time period, well may I ask you, over which years
13                           would that be?
     MIRANDA -               It’s hard to say really.
14
     FOX -                   Would it have been in 2006 for instance, any of those?
15
     MIRANDA -               It could, but I don’t have a specific recollection of any time frame
16                           really.
     FOX -                   Alright. But you’ve given us at least a year.
17
     MIRANDA -               At least.
18
     FOX -                   Alright. Now, when to your best recollection did you first find out
19                           that Ann Marie Gordon was not testing solutions?
     MIRANDA -               I don’t know. I really don’t know the time frame. I don’t know if it
20
                             was a year, two years, I don’t know.
21
     FOX -                   At some point you found out that Ed Formoso was testing those
22                           solutions for Ann Marie Gordon, didn’t you?
     MIRANDA -               Yes.
23
     FOX -                   How did you find that out?
24

25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 105
 1   MIRANDA -               Well, once again, I don’t recall the specifics which came first. I
                             remember, maybe I was talking to Ed, Ed Formoso in the
 2
                             laboratory and I inquired about it.
 3
     FOX -                   Why did you inquire about it?
 4   MIRANDA -               I don’t remember. I don’t recall why the conversation went there,
                             but I remember, I recall, and it’s difficult trying to go back years, I
 5
                             don’t remember specifically, but what I remember is that he
 6
                             mentioned that he was testing for her.
 7   FOX -                   Is the reason you don’t recall specifics because it was a long time
                             ago?
 8
     MIRANDA -               Yes.
 9
     FOX -                   More than a year?
10   MIRANDA -               I would say so.
     FOX -                   Now, could it be that one of the reasons you had that
11
                             conversation with Ed Formoso was because you did not see Ann
12
                             Marie Gordon doing simulator solution testing in the laboratory for
13                           quite some time before you had the conversation with him?
     MIRANDA -               Before I had the conversation with him? I don’t know. Like I said,
14
                             I don’t remember what lead me to you know, it could have been
15
                             that Ed and I were talking in the laboratory and he was performing
16                           data, testing simulator solution at that time. I don’t remember if I
                             questioned, if I asked him directly.
17
     LYNCH -                 Objection. I would ask the witness to testify to what he knows
18
                             and not what he thinks he might know or might not know.
19   JUDGE -                 I think the witness is trying to answer in terms of what he recalls,
                             and the objection’s overruled.
20
     FOX -                   You can answer as best you can Sir.
21
     MIRANDA -               I don’t remember what lead to that conversation.
22   FOX -                   I’ll try to help you. Could it be that you became aware that Ann
                             Marie Gordon’s name was showing up on worksheets for times
23
                             when you knew, shall I say for dates when you knew that she
24
                             could not have been in the lab doing those?
25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 106
 1   LYNCH -                 Objection to counsel telling the witness what the answer is to his
                             question.
 2
     FOX -                   Well I’m trying to refresh his recollection Your Honor.
 3
     JUDGE -                 Overruled.
 4   MIRANDA -               I don’t know that that was the case. I didn’t know when Ann Marie
                             was in the laboratory or in town or in the lab. I don’t remember
 5
                             anything when, I mean I didn’t keep track of her hours. So I don’t
 6
                             know if that was the reason why I approached him. Like I said, I
 7                           don’t remember what lead to our conversation.
     FOX -                   Well, let’s get to it. So you had this conversation with Ed
 8
                             Formoso sometime ago. You don’t recall a lot of the details about
 9
                             it, right?
10   MIRANDA -               Right.
     FOX -                   But you were motivated in some way to bring this up with him, but
11
                             you don’t recall what that was that triggered this?
12
     MIRANDA -               A specific event that triggered it, no.
13   FOX -                   How about a general event? Is there something else that
                             triggered it?
14
     LYNCH -                 Objection. Asked and answered.
15
     FOX -                   He hasn’t said whether a general event occurred.
16   JUDGE -                 Overruled.
     MIRANDA -               Yes. There were, I mean Ann Marie was not frequently in the
17
                             laboratory and I knew the simulator solution was being tested. I
18
                             didn’t know, I mean, the names did appear on the data sheet, on
19                           the worksheet and I had a presumption that Ed was doing it, and
                             you know, I don’t remember what specific event lead to that.
20
     FOX -                   Did you, around about this time then take a look at some of the
21
                             worksheets to compare the dates of analysis of solutions and to
22                           determine whether Ann Marie Gordon’s solutions were
                             purportedly being tested on the same date that Formoso was
23
                             testing? Did you do that to try to piece it together?
24
     MIRANDA -               I don’t think I investigated it in that way.
25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 107
 1   FOX -                   Did you, well you talked to him about it.
     MIRANDA -               Yes.
 2
     FOX -                   Did you feel that it was wrong for her to, for him to test solutions
 3
                             for her when ultimately she would be signing declarations? Did
 4                           you feel that was wrong?
     MIRANDA -               I didn’t know what her declaration was saying. I didn’t know what
 5
                             her role was. She was the manager. I didn’t know what, if they, if
 6
                             that’s something that Ed was doing for her because that was one
 7                           of his duties, I don’t know. I didn’t feel he was absolutely wrong at
                             the time.
 8
     FOX -                   Well, have you seen the files relating to simulator solutions which
 9
                             have all of the declarations of all the toxicologists collected within
10                           that file for a particular solution? Have you seen files like that?
     MIRANDA -               Yes.
11
     FOX -                   And have you looked at those certifications and read them just to
12
                             see what they look like for other toxicologists?
13   MIRANDA -               Some of them I have.
     FOX -                   Are you suggesting you considered it to be a possibility that Ann
14
                             Marie Gordon had a different certificate, one that says I did not
15
                             personally test this solution, is that what you’re suggesting?
16   MIRANDA -               I’m suggesting that I never really looked into exactly what the
                             wording was saying.
17
     FOX -                   Well, let’s turn to a different topic. And I’d like to approach you
18
                             with Exhibit number 29, and it’s entitled organizational chart.
19                           Have you ever seen that organization chart? I’ll give you a
                             moment to look at it.
20
     MIRANDA -               I may have. I don’t recall it, but I may have seen it before.
21
     FOX -                   Well, does it look like kind of how the hierarchy of authority goes,
22                           or is set up in the lab?
     MIRANDA -               At this point then, I mean if we’re talking March or April 14 of
23
                             2004, I don’t remember who was the supervisor. If you tell me
24
                             (unintelligible) I would assume so.
25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 108
 1   FOX -                   Well let me ask you this, before Ann Marie Gordon resigned from
                             the lab, was she the manager of the lab?
 2
     MIRANDA -               Yes she was.
 3
     FOX -                   And did you have somebody who was a supervisor to you?
 4   MIRANDA -               I believe at that time Ed Formoso was.
     FOX -                   Alright. So let’s say that…
 5
     MIRANDA -               Well let me, I’m sorry. Let me go back a little bit here. At the
 6
                             time Ann Marie resigned I, my supervisor was Ryan Capron.
 7   FOX -                   How long was he your supervisor before she resigned?
     MIRANDA -               About a year, a little bit over a year maybe, maybe two years. I
 8
                             don’t remember when he was promoted.
 9
     FOX -                   And so when you discovered that Ed Formoso was testing
10                           solutions for Ann Marie Gordon, was he at that time your
                             supervisor or not?
11
     MIRANDA -               When I discovered it?
12
     FOX -                   Yes, when you spoke with him about it, whenever that occurred.
13   MIRANDA -               I don’t think he was.
     FOX -                   So in terms of, if you had wanted to report this up through the
14
                             chain at the time that you came into this knowledge, would the
15
                             proper chain have been to go to your supervisor with this
16                           information? And if you didn’t get relief or felt that person could
                             not assist you to go to the next person up, right? And the next
17
                             person up from your supervisor would have been Ann Marie
18
                             Gordon?
19   MIRANDA -               Correct.
     FOX -                   And if you didn’t get satisfaction from Ann Marie Gordon or felt
20
                             that you could not go to her, the next person up in the
21
                             organizational chart from her is whom?
22   MIRANDA -               Dr. Barry Logan.
     FOX -                   Dr. Barry Logan. At the time that you came into this information
23
                             did you go to Dr. Logan?
24
     MIRANDA -               I don’t believe I did.
25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 109
 1   FOX -                   Did you discuss your concerns with Ann Marie Gordon?
     MIRANDA -               I don’t believe I did.
 2
     FOX -                   Did you state to Ed Formoso that you in any way disapproved of
 3
                             this conduct?
 4   MIRANDA -               I don’t recall whether I did or not.
     FOX -                   Now, if Ann Marie Gordon was signing documents under penalty
 5
                             of perjury stating that she had tested solutions which she had not,
 6
                             if that occurred at the time that you spoke with Mr. Formoso, then
 7                           that would have been occurring at almost the highest level of the
                             lab, isn’t that true? Because it was Ann Marie Gordon.
 8
     MIRANDA -               Ann Marie Gordon was a manager, yes.
 9
     FOX -                   She was the number 2 person under Barry Logan?
10   MIRANDA -               For the toxicology laboratory, yes.
     FOX -                   Now, do you know who Doris Schrantz is?
11
     MIRANDA -               Yes.
12
     FOX -                   Did she, well tell the Court who she is.
13   MIRANDA -               Doris Schrantz was a quality assurance manager for technical, I
                             don’t recall her specific title. I don’t know if it was quality
14
                             assurance or technical lead. Gosh that was two, maybe three
15
                             years back, maybe longer, I don’t remember the dates.
16   FOX -                   She was there during the time that you were in the lab. She came
                             and was there and then for how long, a year, two years, how
17
                             long?
18
     MIRANDA -               I want to say a year or a little bit over a year.
19   FOX -                   Do you more or less work along side her in the lab?
     MIRANDA -               Not along side her. She was a technical lead so she had other
20
                             duties that I didn’t have. We had different duties.
21
     FOX -                   Did you consider her a friend?
22   MIRANDA -               I consider her a friend, yes.
     FOX -                   Did you trust her integrity?
23
     MIRANDA -               Yes.
24
     FOX -                   Did others in the lab get along with her like you did?
25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 110
 1   MIRANDA -               Can’t speak for everybody else. I don’t know.
     FOX -                   It’s true however, that Ann Marie Gordon was not well liked
 2
                             generally speaking by the employees of the lab?
 3
     MIRANDA -               Can’t answer that for everybody in the lab.
 4   FOX -                   Do you recall being interviewed in 2003 in connection with a
                             complaint Doris Schrantz had lodged against Ann Marie Gordon
 5
                             alleging a hostile work environment?
 6
     LYNCH -                 Objection to relevance.
 7   FOX -                   It goes directly Your Honor, to the conditions within the lab that
                             are certainly pertinent to the quality of the work.
 8
     JUDGE -                 Do you have more in the way of an offer of proof?
 9
     FOX -                   Well Your Honor, I have an office or professional standards case
10                           review wherein two charges were found to be sustained, one of
                             unbecoming conduct, one a violation of agency rules based upon
11
                             a complaint alleging a hostile work environment which was lodged
12
                             by Doris Schrantz and which was subsequently investigated by
13                           Barry Logan and perhaps others that related to the work
                             conditions and the situation under which an individual like Mr.
14
                             Miranda was required to try to do his work.
15
     LYNCH -                 Your Honor?
16   JUDGE -                 I’m still having a hard time seeing relevance there. I’ll sustain the
                             objection.
17
     FOX -                   Alright. Of your personal knowledge with Ann Marie Gordon,
18
                             personal knowledge, did she show respect to you?
19   MIRANDA -               Professionally yes.
     FOX -                   Professionally. Was she ever dismissal of your viewpoints?
20
     MIRANDA -               I thought that she was, yes.
21
     FOX -                   Did she do things that demean the staff and yourself?
22   LYNCH -                 Objection as to relevance.
     JUDGE -                 Again, as to the five allegations that are the basis of this motion,
23
                             how is it relevant?
24

25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 111
 1   FOX -                   Well Your Honor, where I’m headed with this, and I can make it a
                             little faster I think, it has something to do with the motivation that
 2
                             Mr. Miranda had in eventually reporting misconduct, that is the
 3
                             testing by Mr. Formoso which then was contributed to Ann Marie
 4                           Gordon. So it has to do with why that was reported.
     JUDGE -                 Does the Court really care why it was reported if it was reported
 5
                             and in fact occurred?
 6
     FOX -                   I’m hearing that the Court does not care about that.
 7   JUDGE -                 No, the Court really doesn’t.
     FOX -                   Then I’m going to move right on Your Honor.
 8
     JUDGE -                 Okay, thank you.
 9
     FOX -                   Alright. Did you eventually report that Ann Marie Gordon was not
10                           testing her own solutions?
     MIRANDA -               No. Ed Formoso was testing it at the time he was my supervisor.
11
                             I’m not reporting…
12
     FOX -                   When I say report, did you, well let me ask it to you this way. I’m
13                           showing you Exhibit number 30. Have you seen that before?
     MIRANDA -               Yes.
14
     FOX -                   When did you see it?
15
     MIRANDA -               I saw it last Friday.
16   FOX -                   Did you ever see it before last Friday?
     MIRANDA -               I did not see it before last Friday.
17
     FOX -                   And last Friday was when I interviewed you, correct?
18
     MIRANDA -               That is correct.
19   FOX -                   Alright. And what does that document purport to be?
     MIRANDA -               It’s a Washington State Patrol March, 2007, I don’t see a title, it
20
                             says message, message number, a message and then end of
21
                             message.
22   FOX -                   Now, and do you know, are you aware that there is a tip line you
                             can call with the Washington State Patrol?
23
     MIRANDA -               I am aware now.
24
     FOX -                   Did you ever call the tip line to report this conduct?
25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 112
 1   MIRANDA -               No I did not.
     FOX -                   You did not? Do you know who did?
 2
     MIRANDA -               No I do not.
 3
     FOX -                   Alright. I want to show you another document, and this number
 4                           32, and I’ll ask you to take a look at that.
     MIRANDA -               Okay.
 5
     FOX -                   And would describe what the document is that I’ve placed into
 6
                             your hands?
 7   MIRANDA -               It’s a message number 26, 2606 and it says, do you want me to
                             read it?
 8
     FOX -                   Well yes, go ahead and read it.
 9
     LYNCH -                 It hasn’t been admitted into evidence, so I would object to it.
10   JUDGE -                 Okay. Could it be identified first? And then possibly admitted. I
                             don’t want him to read it into the record first.
11
     FOX -                   Alright. Hand it back to me if you will and I’ll ask you a question.
12
                             Did you make a call to the tip line or any other place where you
13                           might report such a thing on July 9, 2007 to report that Ann Marie
                             Gordon…
14
     LYNCH -                 Objection. He can’t identify the document. He can read what it is,
15
                             but he doesn’t have any nexus to that document to make it
16                           admissible into evidence.
     FOX -                   That’s fine Your Honor.
17
     JUDGE -                 Overruled.
18
     FOX -                   Thank you Your honor. Did you make a call to the Washington
19                           State Patrol tip line or anywhere else on July 9, 2007 and report in
                             essence that Ann Marie Gordon doesn’t really certify all those
20
                             simulator solutions?
21
     MIRANDA -               No I did not.
22   FOX -                   You did not? Do you know who made that call?
     MIRANDA -               No I do not.
23

24

25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 113
 1   FOX -                   Now, last Friday when we met and discussed your testimony and
                             had a conference where Mr. Garcia was present and he was
 2
                             advising you at that time, wasn’t he?
 3
     MIRANDA -               During our interview?
 4   FOX -                   Before our interview.
     MIRANDA -               Yes.
 5
     FOX -                   And then I asked these same questions at that time. How did you
 6
                             respond to me last Friday?
 7   MIRANDA -               I said I did not want to answer that question because it was a
                             protected line.
 8
     FOX -                   And didn’t you invoke what Mr. Garcia termed the Federal Whistle
 9
                             Blower’s Act?
10   MIRANDA -               I don’t recall what the term that it was, but at the time I did not
                             want to answer the question.
11
     FOX -                   Well if you had no knowledge and didn’t make the report, why did
12
                             you make it appear to me, I said you were a whistle blower.
13   GARCIA -                Objection.
     FOX -                   Your Honor, Mr. Garcia has…
14
     JUDGE -                 Mr. Garcia’s appeared in this matter.
15
     GARCIA -                Yes I have Your Honor. I have filed a notice of appearance and
16                           represent the witness. I was present during that interview and as
                             Mr. Fox is aware, I explained to him and Mr. Miranda that my
17
                             purpose for objecting at that point was that I needed to do a
18
                             research of the law. Mr. Miranda had indicated his basis was that
19                           he was uncomfortable dealing with the witness (unintelligible) that
                             was supposed to be (unintelligible) anonymously. I made it clear
20
                             at that time it was not his intention to assert that. He simply did
21
                             not want to answer questions until he understood whether or not it
22                           was appropriate for the attorneys to be asking any witness, not
                             just him, but any witness the questions about what he believed to
23
                             be, basis for getting people to come forward, and if it was possible
24
                             to ask questions, ask these questions of witnesses, then it
25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 114
 1                           wouldn’t be under any affective technique for getting people to
                             come forward. So on that basis I advised him to not answer. He
 2
                             declined to answer at that point. Since then Mr. Fox and I have
 3
                             discussed the matter and agreed the whistle blower’s act does not
 4                           protect anyone from answering these questions. So I think it’s a
                             mischaracterization of his answer or mine (unintelligible).
 5
     JUDGE -                 Mr. Fox, do you take issue with the statement of facts as related
 6
                             by Mr. Garcia?
 7   FOX -                   I do Your Honor. It’s not exactly the way I recall it. I recall Mr.
                             Miranda actually stating I believe the words whistle blower, but I
 8
                             could stand corrected, and I don’t think it matters at this point. I
 9
                             can move on with other questions.
10   JUDGE -                 Or if you’d prefer to ask Mr. Miranda his recollection of what he
                             said, I’ll allow that, but will sustain the objection otherwise.
11
     FOX -                   Thank you Your Honor. What did you say in response to my
12
                             question to you about whether you were the person who made
13                           the call?
     MIRANDA -               I don’t recall the specific wording, but I believe I might have said, I
14
                             don’t feel comfortable answering those questions because it’s a
15
                             protected line, should be an anonymous call and when they’re at
16                           the federal law protected, I do recall you saying something about
                             how did I know that it was protected by federal law and such, and
17
                             then Mr. Garcia intervened. But I don’t remember my specific
18
                             wording.
19   FOX -                   So was it your intention because you’re not the tipster, to protect
                             someone else by stating to me what you did? Was that your
20
                             intention?
21
     MIRANDA -               No. My intention is that it’s a protected line, an anonymous line
22                           and I feel that it doesn’t matter who called that line. As a citizen I
                             feel that we have a right not to identify that individual. What if you
23
                             asked for the witness protection program or something else a
24
                             murder, is that really protected then? That’s how I felt, as a
25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 115
 1                           citizen I felt it wasn’t right, the question wasn’t proper and I still
                             feel that way. I chose to answer that question today and I feel
 2
                             that’s my opinion. There might be others in my laboratory who
 3
                             don’t feel it’s a right question.
 4   FOX -                   And I certainly respect your opinion on that. Let me ask you this,
                             did you not see anything wrong with Mr. Formoso doing the tests
 5
                             for Ann Marie Gordon knowing everything you know about what
 6
                             that testing procedure’s entitled to do in court. You didn’t see
 7                           anything wrong with that?
     MIRANDA -               In retrospect yes, I can see some things that are bad. But
 8
                             scientifically the simulator solution was being tested properly.
 9
     FOX -                   So, if I understand your position, your position is that as long as
10                           long as the numbers are accurate it doesn’t matter to you that
                             there’s perjury involved in an affidavit. Is that what you’re saying?
11
     LYNCH -                 Objection. That calls for a legal conclusion.
12
     JUDGE -                 Sustained.
13   FOX -                   You didn’t report the conduct?
     MIRANDA -               No.
14
     FOX -                   Did you discuss this conduct with other people?
15
     MIRANDA -               Yes.
16   FOX -                   Who else did you discuss it with at the time that you learned of it?
     MIRANDA -               Gosh, I can’t think of, Naciha (unintelligible), I think Mary Wilson,
17
                             Bill Marshall perhaps, I don’t remember who else. I mean, it
18
                             wasn’t hidden. It was common knowledge so it wasn’t something
19                           that we were hiding. It was something that Ed Formoso wasn’t
                             hiding.
20
     FOX -                   So it was open and known within the lab in essence since Ed
21
                             Formoso wasn’t hiding it, that he was doing Ann’s solutions?
22   MIRANDA -               I don’t know if everybody knew it.
     FOX -                   Would you say a substantial number of people knew it?
23
     MIRANDA -               Substantial meaning?
24
     FOX -                   Say half of the people knew.
25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 116
 1   MIRANDA -               Some people knew, some people knew. I don’t you know, we’ve
                             had a lot of turnover in the lab. I don’t know who knows what at
 2
                             what time, I don’t know.
 3
     FOX -                   You named for me, was it four people or five people that you
 4                           named for me when we spoke?
     MIRANDA -               I think I mentioned Naciha, Mary, Bill Marshall, three.
 5
     FOX -                   Okay. And do you believe there were more people who knew?
 6
     MIRANDA -               Perhaps yes.
 7   FOX -                   Do you believe that Barry Logan knew at that time?
     MIRANDA -               I don’t know if he knew.
 8
     FOX -                   Do you believe there were people outside of the lab who knew?
 9
     MIRANDA -               Outside of the lab? I don’t know.
10   FOX -                   Were you aware that at some point Ann Marie Gordon and Mr.
                             Formoso were charged with investigating the propriety of the
11
                             simulator solution preparation process including certifications?
12
     MIRANDA -               I wasn’t aware of it until maybe a few weeks back when all the
13                           subpoenas starting come. I wasn’t aware of it before Ann Marie
                             Gordon resigned.
14
     FOX -                   And then you learned about that?
15
     MIRANDA -               Yes.
16   FOX -                   How did you come to know about that, do you know?
     MIRANDA -               I don’t know if one of the supervisors may have said something
17
                             when we were talking, or talking with somebody else, I don’t
18
                             specifically recall who said it.
19   FOX -                   And then did you, at what point did you become aware of the
                             second anonymous tip that we’ve referred to, the one that is
20
                             referenced in a document not yet admitted, but which is titled, or
21
                             dated July 9, 2007, when did you first become aware of that
22                           second tip?
     MIRANDA -               The second tip? I didn’t become aware of it until it appeared in
23
                             the newspaper.
24
     FOX -                   When was that?
25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 117
 1   MIRANDA -               I don’t remember the date. After Ann Marie Gordon resigned.
     FOX -                   Now, but you were aware of the ability to make an anonymous tip
 2
                             to the Washington State Patrol tip line?
 3
     MIRANDA -               No. I may have been, maybe at one time during my introduction to
 4                           the state patrol I was given the number, but I never kept it and I
                             never, never remembered that number. Maybe at one point it
 5
                             was given to me, but I never, in my past experience there were
 6
                             other jobs I never needed it and I didn’t feel like I would need it so
 7                           I never saved it or remembered that it existed.
     FOX -                   Insofar as you have knowledge to answer this question, you
 8
                             would agree wouldn’t you that the tip line is outside of the chain of
 9
                             command in the laboratory? In other words, it’s outside of Ann
10                           Marie Gordon. It’s outside of Barry Logan. It doesn’t ring in their
                             offices?
11
     MIRANDA -               I believe so it’s outside, somewhere outside of the laboratory.
12
     FOX -                   Your Honor, may I have just a moment?
13   JUDGE -                 Sure.
     FOX -                   Thank you Your Honor. Excuse me Your Honor. So Ted, no
14
                             questions from you? Your Honor, I am finished at this point and
15
                             these documents that have been marked I am not seeking
16                           admission, but I’d ask that they’d be held with the clerk. There’s
                             another document up here.
17
     JUDGE -                 All of them?
18
     FOX -                   Just the ones that I gave to you. I would be seeking Your Honor,
19                           admission of number 28 which is the certification.
     JUDGE -                 28 is the certification as to which particular solution?
20
     FOX -                   That is a certification as to simulator solution 7001. That’s page
21
                             1. Page 2 Your Honor is the worksheet relating to 7001.
22   JUDGE -                 Certification and worksheet. And no objection from the State?
     LYNCH -                 No objection.
23
     JUDGE -                 Okay. That will be admitted without objection.
24

25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 118
 1   FOX -                   These other documents Your Honor, I would be seeking
                             admission of the organizational chart which was Exhibit number
 2
                             29.
 3
     JUDGE -                 29.
 4   LYNCH -                 I just would object as to relevancy of that, of the chart.
     JUDGE -                 The issue’s not whether it’s necessarily all that relevant. It was
 5
                             testified to in full, it will be admitted.
 6
     FOX -                   Thank you Your Honor. I would only offer it for subsequent courts
 7                           so that it will help them read through the testimony.
     JUDGE -                 Yes, okay.
 8
     FOX -                   That leaves Your Honor, Exhibits number 30, 31 and 32 which
 9
                             have been referred to but have not yet been offered.
10   JUDGE -                 I don’t think 31 has been referred to.
     FOX -                   31?
11
     JUDGE -                 30 and 32 were.
12
     FOX -                   I stand corrected Your Honor. I did not refer to number 31, and
13                           so at this point Your Honor I would conclude my examination.
                             Thank you Your Honor.
14
     JUDGE -                 Thank you. Any questions by way of cross?
15
     LYNCH -                 Thank you and yes we do.
16   JUDGE -                 Okay.
     LYNCH -                 Good afternoon Mr. Miranda. It’s nice to see you again.
17
     MIRANDA -               Good afternoon.
18
     LYNCH -                 You’ve been with the tox lab for 6 years?
19   MIRANDA -               A little bit over 6 years, yes.
     LYNCH -                 And do you recall how many analysts were in the lab when you
20
                             started working there?
21
     MIRANDA -               In 2001?
22   LYNCH -                 If you don’t recall that’s fine.
     MIRANDA -               I don’t recall. I would try to sit here and try to remember names.
23
     LYNCH -                 Is it safe to say though that the staff has increased in number in
24
                             the time that you’ve been there?
25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 119
 1   MIRANDA -               Oh yes.
     LYNCH -                 And that’s because the Washington State Patrol’s toxicology lab
 2
                             is a very busy place, isn’t that correct?
 3
     MIRANDA -               It’s very busy and there appears to be more demands put on us,
 4                           yes.
     LYNCH -                 And could you tell us a little bit about your duties at the lab?
 5
     MIRANDA -               Our job is to analyze bodily fluids for the presence of drugs. We
 6
                             do this for medical examiners, coroners and police agencies of all
 7                           the State of Washington. We prepare the external simulator
                             solution and we testify in court.
 8
     LYNCH -                 Okay. And in fact you spend a considerable amount of time
 9
                             testifying in court, isn’t that correct?
10   MIRANDA -               Myself? Yes I would say that on the average it’s about once a
                             week on the average.
11
     LYNCH -                 And testifying in court just doesn’t encompass coming into the
12
                             actual courtroom and testifying. A lot of times you’re sitting
13                           outside the courtroom for a period of time waiting because other
                             witnesses are on the stand, isn’t that correct?
14
     MIRANDA -               It includes travel time, waiting and returning to the laboratory.
15
     LYNCH -                 And all of that time is time out of the lab when you’re not able to
16                           accomplish your duties that are required of you when you’re
                             working there, isn’t that correct?
17
     MIRANDA -               Well I’m not able to do any data analysis, extractions or any
18
                             physical work. I’m doing another duty such as testimony.
19   LYNCH -                 So when you are in the lab, is it safe to say you’re pretty busy
                             getting caught up?
20
     MIRANDA -               Yes.
21
     LYNCH -                 And is it safe to safe also that when you’re trying to get caught up,
22                           you’re not really paying a whole lot of attention to office politics
                             and things such as that? I mean that creeps into every job I
23
                             would say, but that’s not the primary concern when you’re on the
24
                             job?
25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 120
 1   MIRANDA -               Yes. When I’m in the laboratory I try to get my cases done as
                             efficiently as I can.
 2
     LYNCH -                 Okay. And so you don’t consider yourself a busy body in other
 3
                             people’s business to find out who’s doing what and things of that
 4                           nature?
     MIRANDA -               No. I assume everybody is busy doing their own work.
 5
     LYNCH -                 Okay. So when you said that at some point you suspected or you
 6
                             don’t really recall how you came to the conclusion that maybe
 7                           Ann Marie Gordon was not testing her own batches. Was that
                             based on things that you observed or, because it sounds like you
 8
                             were pretty busy doing your own business?
 9
     MIRANDA -               Yes.
10   LYNCH -                 Okay.
     MIRANDA -               How did I come about knowing it? I mean it’s, we’d see other
11
                             people working. When I was in the lab I didn’t see Ann Marie very
12
                             much in the lab. I knew the solutions were being put out.
13                           Suspicion arose, I never really investigated. When I found out
                             what Ed was doing I just, I found out. That’s how it came about.
14
     LYNCH -                 And to your knowledge, was that a duty and what I mean is
15
                             having Ed test Ann Marie’s batches, was that a duty, do you
16                           know, could she delegate? Did Dr. Logan ever tell her or you
                             know, do you know what her job description even was?
17
     MIRANDA -               I knew she was the lab…
18
     FOX -                   Objection as to whether that could be delegated by Dr. Logan
19                           Your Honor. Knows what job description, I have no objection to.
     LYNCH -                 Okay. Well I can rephrase it.
20
     JUDGE -                 Okay, please do. Actually that’s what I understood it to be, but go
21
                             ahead.
22   LYNCH -                 Okay. To your knowledge, do you know if she could delegate that
                             duty to somebody else in the lab?
23
     MIRANDA -               I don’t know.
24
     FOX -                   Objection.
25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 121
 1   LYNCH -                 I can ask him if he knows.
     FOX -                   He said he didn’t, so I’m fine with that.
 2
     LYNCH -                 So you don’t know? I just wanted to hear your response. I didn’t
 3
                             hear it. You don’t know if that’s a duty she could delegate?
 4   MIRANDA -               I don’t know.
     LYNCH -                 And you indicated that even though Mr. Formoso, what has
 5
                             subsequently been found out that he was doing the testing for
 6
                             her, you were not concerned about the science involved in that.
 7                           Isn’t that correct?
     MIRANDA -               Correct.
 8
     LYNCH -                 And why was that?
 9
     MIRANDA -               The simulator solution was being tested the number of times that
10                           it stated.
     LYNCH -                 Okay. And Mr. Formoso, to your knowledge was testing it the way
11
                             he was supposed to test it. He was following the protocols in the
12
                             policy and procedures manual?
13   MIRANDA -               He tested five files or five aliquots of the simulator solution, yes.
                             How long is that control.
14
     LYNCH -                 So nothing about the manner of that testing did it cause you to
15
                             have any concern about simulator solutions that were being
16                           tested and certified and then sent out to be put on Datamasters
                             and used for purposes of breath testing?
17
     MIRANDA -               No.
18
     LYNCH -                 And in your opinion, even though you know that Mr. Formoso was
19                           doing the testing for Ann Marie, your opinion today are that the
                             simulator solutions that are being used on Datamasters, are they
20
                             valid for use on Datamasters because they’re prepared according
21
                             to the policies and procedures in the protocols set up by the state
22                           toxicologist?
     MIRANDA -               Yes. The simulator solutions are accurate, yes.
23
     LYNCH -                 Now, you were asked a lot about the certifications that you signed
24
                             regarding the simulator solutions and then the worksheets that
25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 122
 1                           are attached to it. You indicated that you never bring those
                             certifications to court?
 2
     MIRANDA -               The certifications, no.
 3
     LYNCH -                 Okay. And that’s because they are used in the event that a live
 4                           person, a live toxicologist cannot testify?
     MIRANDA -               My understanding is that when those certificates are to be used, if
 5
                             let’s say I have two court dates to attend, one is a blood and one
 6
                             is a breath, but they really wanted me in the breath case, then
 7                           they could use my certificate as my testimony instead of being
                             present, yes.
 8
     LYNCH -                 Okay. Then if you are present, that certification’s never going to
 9
                             be used in court to your knowledge?
10   MIRANDA -               No. That’s why I’m there for.
     LYNCH -                 Okay. And when you testify off the worksheets, you’re just
11
                             testifying that your testing was done according to the protocols
12
                             that are set up by Dr. Logan. You’re not testifying about how
13                           anybody else does it, is that correct?
     MIRANDA -               So my testing means that the solution contains the right
14
                             proportions of ethanol and water to give the target value that I
15
                             tested.
16   LYNCH -                 Okay. I just want to clarify something that caused us at this table
                             a little confusion when you were testifying before. When you
17
                             were asked about, Mr. Fox asked you if somebody if they had
18
                             signed, it wasn’t this document, but a document that looked like
19                           this, signed on one of these lines that they had done a testing, he
                             asked if the document was lying. Now you, were you thinking that
20
                             he was talking about the certifications?
21
     MIRANDA -               I believe, at some point I believed that he was talking about
22                           certifications and not the worksheet. I can’t remember.
     LYNCH -                 So that if somebody signed a certification saying that they had
23
                             tested something that they hadn’t tested, that that would be a lie.
24
                             Is that what you were saying?
25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 123
 1   MIRANDA -               I think so yes.
     LYNCH -                 Okay, thank you. I don’t have any other questions.
 2
     JUDGE -                 Mr. Fox?
 3
     FOX -                   Your Honor, we’re kind of at a point where I just have a few
 4                           questions, but I know we had talked about Mr. Vosk taking on sort
                             of a science part of it, and I only have a couple of questions if I
 5
                             may? But I just wanted to then turn it over to Mr. Vosk if I may. I
 6
                             had forgotten to do that as part of our direct. But it won’t…
 7   JUDGE -                 You’re asking to reopen?
     FOX -                   Yes Your Honor.
 8
     JUDGE -                 Granted.
 9
     FOX -                   The document, so we’re turning again to document number,
10                           Exhibit number 28, the second page which is the worksheet. So
                             let me ask you, when someone signs their name next to their
11
                             typewritten name on that form, what is that intended to convey?
12
     MIRANDA -               I can tell you what I think it conveyed.
13   FOX -                   Well I’d like to hear that.
     MIRANDA -               For me it says that I am the tenth analyst, that those are my ten or
14
                             my five results from the simulator solution I tested, the control that
15
                             I tested and the date that I tested the solution on.
16   FOX -                   Alright. And if you signed this but you didn’t do the testing, then
                             that would be a lie, wouldn’t it?
17
     MIRANDA -               I don’t know. I wouldn’t sign it if I didn’t.
18
     FOX -                   I’m talking about you. If you did.
19   MIRANDA -               If I did, if I signed this document?
     FOX -                   Yes.
20
     MIRANDA -               I would say that, I wouldn’t sign it if I didn’t test the solution.
21
     FOX -                   Fair enough. That concludes my examination Your Honor.
22   JUDGE -                 Okay, thank you. And for the record, actually we had a
                             conversation of splitting up the testimony between Mr. Fox and
23
                             Mr. Vosk with respect to I believe Mr. Miranda and Mr. Formoso,
24

25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 124
 1                           and that was, the State had indicated there was no objection to
                             that and that is why I allowed him to reopen.
 2
     LYNCH -                 And Your Honor, I’d like to note, that at the end of Mr. Fox’s direct
 3
                             he did ask Mr. Vosk if he had any questions and he did indicate
 4                           no.
     FOX -                   That related Your Honor to the non-scientific part of it because I
 5
                             am the non-scientific kind of a guy.
 6
     JUDGE -                 I am allowing the defense to reopen Mr. Vosk to make those
 7                           inquiries that we discussed earlier.
     FOX -                   Thank you very much Your Honor.
 8
     JUDGE -                 Thank you. Mr. Vosk?
 9
     VOSK -                  Thank you Your Honor. I will try to be quick. I’m going to hand
10                           you what has been labeled as Exhibits 19 through 22. Can you
                             identify those for me please?
11
     MIRANDA -               You want me to identify them?
12
     VOSK -                  Yes, do you recognize those? Tell the Court what those are.
13   MIRANDA -               Yes. I recognize these. These are the worksheets of four QA,
                             quality assurance solutions, the worksheet followed by three
14
                             certificates of the analysts who checked these quality assurance
15
                             solutions.
16   VOSK -                  What are the numbers on the solutions? The batch numbers?
     MIRANDA -               The batch numbers 07002, number two is 07003, number three
17
                             07004, and number four is 07005.
18
     VOSK -                  Now when you fill those out you realize that the QAP solutions are
19                           used to calibrate the Datamaster, correct?
     MIRANDA -               They are used with the Datamaster and I understand they’re used
20
                             for some capacity of a calibration for a quality assurance. I never
21
                             calibrated any of (unintelligible), so I’m not exactly 100 percent
22                           sure of how they’re used.
     VOSK -                  Okay. You’ve never conducted breath tests?
23
     MIRANDA -               I never conducted an official breath test. I have seen other
24
                             people blowing through a breath test instrument. I think we’ve
25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 125
 1                           had some instruments in the lab and I’ve seen other people blow
                             into it, but I never actually performed an actual breath test.
 2
     VOSK -                  But you understand that those solutions are kind of special in
 3
                             making sure the Datamaster might read right later on down the
 4                           line?
     MIRANDA -               Yes.
 5
     VOSK -                  And so you try to be real careful when you’re recording data for
 6
                             that, correct?
 7   MIRANDA -               I try to be as best I can, yes.
     VOSK -                  When you’re making the representations that people might rely
 8
                             upon later?
 9
     MIRANDA -               I try to do the best I can, yes.
10   VOSK -                  I’m going to hand you what’s been marked as Exhibit 23. Can
                             you read that to yourself please?
11
     MIRANDA -               Okay.
12
     VOSK -                  What is Exhibit 23 indicate?
13   MIRANDA -               It indicates that there was an annotation error in the way the
                             concentration of the solution was reported in that certificate.
14
     VOSK -                  So in the declarations that you signed, you reported a wrong
15
                             solution concentration, didn’t you?
16   MIRANDA -               No.
     VOSK -                  You didn’t?
17
     MIRANDA -               It says that the concentration was incorrectly annotated.
18
     VOSK -                  Okay. Can you take a look at your declaration there?
19   MIRANDA -               Yes.
     VOSK -                  Now what mean is being reported in each of those?
20
     MIRANDA -               In this one?
21
     VOSK -                  In your declarations.
22   MIRANDA -               In this declaration the mean concentration of the alcohol was
                             0.0473 grams per 100 milliliters.
23
     VOSK -                  Now, how many, and take a look at the next one.
24
     MIRANDA -               Okay. Sorry, that one dropped. Are you speaking of 07003?
25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 126
 1   VOSK -                  Yes. Just going down the line.
     MIRANDA -               Okay.
 2
     VOSK -                  What did you say it was there?
 3
     MIRANDA -               In this declaration it states that the mean concentration of the
 4                           alcohol was a 0.0997 grams per 100 milliliters.
     VOSK -                  And what did it say in the next one?
 5
     MIRANDA -               In solution batch number 07004 the mean concentration of
 6
                             alcohol was 0.1289 grams per 100 milliliters.
 7   VOSK -                  Okay. And was that to get to the 005?
     MIRANDA -               No. There’s one more. In 07005 my declaration says the mean
 8
                             concentration of the alcohol was 0.1898 grams per 100 milliliters.
 9
     VOSK -                  Okay. Now, I’m going to hand you what’s been marked as
10                           Exhibits 24 through 27. Now, after reading that letter and having
                             just read what your means were in your declaration, are you
11
                             telling us that you did not report the wrong means in the original
12
                             declarations there?
13   MIRANDA -               Well where are the original ones? I like to compare the old.
     VOSK -                  You’ve got them right there.
14
     MIRANDA -               You said the originals?
15
     VOSK -                  Yes.
16   MIRANDA -               Where are the corrected ones?
     VOSK -                  I just handed them to you.
17
     MIRANDA -               These are them? Okay.
18
     VOSK -                  Let me ask you a question though. Can’t you take a look at your
19                           declaration and then take a look at the worksheet and must
                             compare the two?
20
     MIRANDA -               Well I’m reading the memo that you handed me first and it says
21
                             the mean solution concentration was incorrectly annotated for
22                           these solutions.
     VOSK -                  Okay. So where was that annotated?
23
     MIRANDA -               That would be on the values that I just read.
24
     VOSK -                  Okay. So then it was incorrectly entered on your declaration.
25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 127
 1   MIRANDA -               Apparently so. That’s what I’m understanding.
     VOSK -                  So then the answer is that you did in fact sign declarations under
 2
                             penalty of perjury with the wrong solution mean in there?
 3
     MIRANDA -               At the time I was handed this worksheet and at the time I was
 4                           given this declaration I did not know the error, if there was an
                             error present.
 5
     VOSK -                  I didn’t say you knew, but you signed under penalty of perjury the
 6
                             wrong mean, didn’t you?
 7   MIRANDA -               At the time I signed it I saw the value, I thought it was correct and
                             I signed it.
 8
     VOSK -                  Where did you see the values?
 9
     MIRANDA -               On the letter of, on the certificate.
10   VOSK -                  Did you look back at the worksheet?
     MIRANDA -               No I did not. Well let me rephrase that. I don’t know, I don’t
11
                             remember whether I went back and looked at it, on occasion I do.
12
                             I can’t say that I always do.
13   VOSK -                  Why don’t you keep the originals there and now open up your, the
                             new corrected declarations?
14
     MIRANDA -               Okay.
15
     VOSK -                  And compare the values in the two for each one.
16   MIRANDA -               One of them fell.
     VOSK -                  Why don’t we, you know, we can make this quick. Let me start
17
                             with the very first, what is it, 07002?
18
     MIRANDA -               ’02, yes.
19   VOSK -                  Okay. And you’ve got the original and yours there. The original
                             and the corrected?
20
     MIRANDA -               Yes.
21
     VOSK -                  Now under the protocols, when we record a mean, how are we
22                           supposed to do that?
     LYNCH -                 Objection. This is cumulative. I think other witnesses have
23
                             testified over and over about this.
24
     VOSK -                  I will show the relevance in a moment Your Honor.
25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 128
 1   JUDGE -                 Okay. I’ll give you that latitude.
     VOSK -                  Thank you Your Honor.
 2
     JUDGE -                 Overruled.
 3
     MIRANDA -               Could you repeat the question?
 4   VOSK -                  When you report the mean, how are you supposed to report it, to
                             how many decimal places?
 5
     MIRANDA -               I would have look up the answer to remember exactly.
 6
     VOSK -                  When you’re certifying a solution, do you do it with the SOP’s
 7                           sitting right next to you?
     MIRANDA -               No.
 8
     VOSK -                  When you’re signing a declaration do you do it with the SOP’s
 9
                             sitting right next to you?
10   MIRANDA -               Not necessarily.
     VOSK -                  When you’re doing your worksheet do you do it with the SOP’s
11
                             sitting right next to you?
12
     MIRANDA -               No.
13   VOSK -                  How do you know you’re doing it right if you’ve got to look here
                             right now to tell me what the right thing to do is?
14
     MIRANDA -               I look at the SOP, perhaps I may look to see what, how much
15
                             ethanol and water I need to add, I may glance at that to recollect
16                           my memory.
     VOSK -                  When’s the last time you looked at the SOP to figure out how
17
                             many decimal places you had to report a value here?
18
     MIRANDA -               I don’t know.
19   VOSK -                  Is the accuracy and precision of these things important?
     MIRANDA -               Yes.
20
     VOSK -                  Here’s the 2005. Why don’t you take a look at the section labeled
21
                             certifications?
22   MIRANDA -               Okay.
     VOSK -                  How many decimal places are you supposed to report the mean
23
                             out to?
24
     MIRANDA -               4 decimal places.
25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 129
 1   VOSK -                  Okay. Now, take a look at your original declaration with the
                             corrected declaration.
 2
     MIRANDA -               Okay.
 3
     VOSK -                  Do you have them both next to each other?
 4   MIRANDA -               I believe I do, yes.
     VOSK -                  Okay. What value did you report in the original declaration?
 5
     MIRANDA -               0.0473.
 6
     VOSK -                  Is that the original or the corrected?
 7   MIRANDA -               Let me look at the dates. I assume the original is the earlier date
                             of 1-18. I’m sorry, the original was 0.04.
 8
     VOSK -                  0.04. So right off the bat you reported the value incorrectly even if
 9
                             you had the right value?
10   MIRANDA -               No, the value is correct. 0.04.
     VOSK -                  How many decimal places does it have?
11
     MIRANDA -               It has 2.
12
     VOSK -                  Okay. How many are you supposed to report?
13   MIRANDA -               It says 4.
     VOSK -                  So you reported it incorrectly, didn’t you?
14
     MIRANDA -               It’s not incorrect. It’s just truncated to 2 decimal places.
15
     VOSK -                  You reported it incorrectly, didn’t you? Under the protocols, you
16                           reported that number incorrectly.
     MIRANDA -               It’s not incorrect. It’s shortened.
17
     VOSK -                  What do the protocols tell you to do?
18
     MIRANDA -               It says 4 decimal places.
19   VOSK -                  And how many decimal places did you use?
     MIRANDA -               2.
20
     VOSK -                  So under the protocol you reported the value incorrectly, didn’t
21
                             you?
22   MIRANDA -               The number is not incorrect. It’s just shortened to 2 decimal
                             places.
23
     VOSK -                  Can you take a look right above the signature page in that
24
                             protocol? At the top of the signature page, is there a line in there
25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 130
 1                           that says any deviations from the protocol must be in writing and
                             approved by the toxicologist of the lab manager?
 2
     MIRANDA -               Yes it says that.
 3
     VOSK -                  Do you have, did you ever get anything in writing saying that it
 4                           was okay for you to report the mean with just two decimal places
                             in violation of protocol?
 5
     MIRANDA -               No.
 6
     VOSK -                  Are you exempt from the protocol?
 7   MIRANDA -               No I am not.
     VOSK -                  So under the protocol, you’re required to report that to 4
 8
                             decimals?
 9
     LYNCH -                 Objection, argumentative.
10   VOSK -                  I’ll move on Your Honor.
     JUDGE -                 Please do.
11
     VOSK -                  In the corrected declaration, what do you have?
12
     MIRANDA -               I have 4 decimal places, .0473.
13   VOSK -                  Now that would be correct under the protocol, right?
     MIRANDA -               It has a right amount of decimal places, yes.
14
     VOSK -                  And what’s reported on the worksheet?
15
     MIRANDA -               On the worksheet? There are 4 decimal places.
16   VOSK -                  Okay. And so if you had, when you sign the declaration, if you
                             had looked at the worksheet you might have actually put down the
17
                             right value according to the protocol?
18
     MIRANDA -               Had I looked at the worksheet? Yes I could have compared it.
19   VOSK -                  Okay. Why don’t we move onto the next, I think it’s 07033.
                             Please open up to your declaration for the new and correct and let
20
                             me know.
21
     MIRANDA -               Okay.
22   VOSK -                  In your original declaration what did you report?
     MIRANDA -               The original declaration was a 0.08.
23
     VOSK -                  0.08. And what does your corrected declaration say?
24

25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 131
 1   MIRANDA -               0.0997. Oops, let me, hold on, I want to make sure I have the
                             right thing here. Yes, 0.0997.
 2
     VOSK -                  Okay, so a .08 and a 0.997?
 3
     MIRANDA -               .0997.
 4   VOSK -                  That’s a pretty big difference between those two.
     MIRANDA -               I wouldn’t call it a huge difference, but there is a difference, yes.
 5
     VOSK -                  What’s the worksheet say?
 6
     MIRANDA -               .0811.
 7   VOSK -                  So where did that extraneous number with a .9977 come from?
     MIRANDA -               I don’t know.
 8
     VOSK -                  Is there anything on the front of the worksheet that looks like it
 9
                             may have come from?
10   MIRANDA -               The average solution concentration.
     VOSK -                  I’m sorry. Where are you saying that that came from?
11
     MIRANDA -               The average solution concentration.
12
     VOSK -                  Can you point that out to me? So that’s the right number. So then
13                           where did the wrong number come from?
     MIRANDA -               That would be the equivalent vapor concentration.
14
     VOSK -                  So you signed a declaration as to the mean solution concentration
15
                             and it came out of a completely wrong portion of the statistics that
16                           you did?
     MIRANDA -               Apparently so.
17
     VOSK -                  Now, if a scientist had looked at that they would have realized it
18
                             that that number isn’t the mean solution concentration, would they
19                           have?
     MIRANDA -               A scientist?
20
     VOSK -                  Yes. If you had filled out the declaration yourself, you’d put the
21
                             number in there yourself. You would have recognized that you
22                           can’t use the equivalent vapor concentration. It does not mean
                             the same thing as the mean solution concentration.
23
     MIRANDA -               Yes. They do mean different things.
24
     VOSK -                  And you would recognize that if you had filled that out?
25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 132
 1   MIRANDA -               If I would have filled what out?
     VOSK -                  If you would have put the number into your own declaration.
 2
     MIRANDA -               Yes, I would have made every attempt to put the correct one in.
 3
     VOSK -                  But when a ninth scientist is entering information into those
 4                           declarations, they don’t really understand the numbers that well,
                             do they?
 5
     MIRANDA -               I don’t know how they’re trained to do that job.
 6
     VOSK -                  Well they obviously put down a number that was completely
 7                           unrelated to the mean solution concentration into your
                             declaration, didn’t they?
 8
     MIRANDA -               They put the wrong value, yes.
 9
     VOSK -                  And they took a value from somewhere else on that worksheet
10                           that’s completely unrelated?
     MIRANDA -               It’s not unrelated. It’s not the correct one that should be there.
11
     VOSK -                  Pardon?
12
     MIRANDA -               It’s not unrelated. It’s the wrong value, it’s the wrong number to
13                           put in there.
     VOSK -                  Okay. Why don’t you move onto the next one?
14
     MIRANDA -               Are we speaking of 07004?
15
     VOSK -                  Yeah. Do you have your two declarations in front of you?
16   MIRANDA -               Yes I do.
     VOSK -                  What is the number reported in your original declaration?
17
     MIRANDA -               The original is .10 grams.
18
     VOSK -                  And what’s in the corrected declaration?
19   MIRANDA -               It is .1289.
     VOSK -                  Okay. Now those numbers are pretty different again, aren’t they?
20
     MIRANDA -               Yes.
21
     VOSK -                  Where did the incorrect number come from? Is there any place in
22                           the worksheet?
     MIRANDA -               That would be more consistent with an equivalent vapor
23
                             concentration.
24

25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 133
 1   VOSK -                  So again they took a number from the wrong place on the
                             worksheet and entered it into the declaration?
 2
     MIRANDA -               It would appear that way.
 3
     VOSK -                  How about the last one?
 4   MIRANDA -               The original was a .15. And the second was a .1898.
     VOSK -                  Okay. Where did the wrong number come from that time?
 5
     MIRANDA -               Well let me back track here. As I said, I would have to review the,
 6
                             I’ve been telling you that the wrong number and right number, but
 7                           I need to read this again to see which one was the one that we’re
                             supposed to be reporting. But the original one is more consistent
 8
                             with the equivalent vapor concentration, and the corrected one
 9
                             was from the average solution concentration.
10   VOSK -                  So one of those has to do with the fact that you didn’t follow the
                             protocols, and the other three had to do with the fact that
11
                             somebody entered in a number that had to do with a different
12
                             quantity altogether?
13   MIRANDA -               That had invalid protocols?
     VOSK -                  You didn’t report your mean out to 4 decimal places, you only
14
                             reported it to 2.
15
     MIRANDA -               I believe that’s a typo. I didn’t intend to not follow the protocol.
16                           Our office assistants are the ones who prepared the declaration,
                             and they may have typed it, typed 2 decimal places and I didn’t
17
                             notice it at the time.
18
     VOSK -                  You didn’t notice it? How many of these do you do a year?
19   MIRANDA -               We prepared, I would say on the average 40 quality assurance
                             along with simulator solutions together, 40 to 45, I don’t know.
20
     VOSK -                  And you’re bound, let me ask it a different way. When the
21
                             protocol says that when you report the mean it’s got to be done to
22                           4 decimal places.
     MIRANDA -               Yes it does.
23
     VOSK -                  And then they came out with corrected declarations, your old
24
                             declaration was in fact corrected, wasn’t it?
25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 134
 1   MIRANDA -               Yes it was.
     VOSK -                  That must mean that there was a mistake with the first, correct?
 2
     MIRANDA -               Well, as the memo stated, there was a notation error.
 3
     VOSK -                  I’m trying to figure out the nature of the allocation error. So the
 4                           correction was made why?
     MIRANDA -               Why?
 5
     VOSK -                  You signed off on that second declaration and you’re telling me
 6
                             you didn’t violate the protocols, so I’m wondering why there was a
 7                           correction made and why you signed the second certification?
                             And if you don’t think there was a problem, or if you didn’t
 8
                             understand the nature of the problem, did you ever inquire into it
 9
                             to find out what you had done wrong?
10   MIRANDA -               Oh I didn’t think I had done anything wrong. I probably did inquire
                             and maybe, I can’t remember the specific case, but maybe
11
                             somebody told me we would put in the wrong values. The wrong
12
                             values were entered and we need to create new certifications.
13                           We’re correcting the error.
     VOSK -                  I’m going to hand you what’s been marked as Exhibit 33. Can you
14
                             identify that for us?
15
     MIRANDA -               This is a corrected worksheet of a simulator solution.
16   VOSK -                  Corrected worksheet. Did you sign on that worksheet?
     MIRANDA -               Yes.
17
     VOSK -                  And did you sign a declaration to go along with that worksheet?
18
     MIRANDA -               I don’t have any present but I can assume that it went out, I can
19                           presume that yes I did sign a declaration.
     VOSK -                  Now, is it, when you signed the worksheet, do you check it
20
                             against your chromatogram?
21
     MIRANDA -               On occasion I do.
22   VOSK -                  On occasion you do?
     MIRANDA -               Yes.
23
     VOSK -                  Do you do that every time?
24
     MIRANDA -               I can’t say that every time.
25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 135
 1   VOSK -                  Do you think that might be something that would be important to
                             insure that your numbers are correct?
 2
     MIRANDA -               Yes.
 3
     VOSK -                  Something that you should probably do, huh?
 4   LYNCH -                 Objection. This is cumulative. Other witnesses have testified to
                             the same information.
 5
     VOSK -                  I will show how it’s independently relevant to (unintelligible) Your
 6
                             Honor.
 7   JUDGE -                 Okay. Overruled then.
     VOSK -                  So it’s pretty important to check against a chromatograph when
 8
                             you’re entering your data, or when you’re signing off on the
 9
                             worksheet, isn’t it?
10   MIRANDA -               To check them?
     VOSK -                  Yes.
11
     MIRANDA -               No. When I sign the sheet I am looking at my numbers to verify
12
                             that there are no gross typo errors in my, in the analysis that I did,
13                           and then the date that I tested it to the best of my recollection.
     VOSK -                  When you’re looking at the chromatogram, isn’t that important to
14
                             make sure you’re entering your numbers correctly?
15
     MIRANDA -               Well I’m looking at my chromatogram when I’m entering the
16                           numbers in the computer.
     VOSK -                  What’s corrected?
17
     MIRANDA -               What’s corrected?
18
     VOSK -                  On that worksheet? Is there something about the numbers that
19                           have been entered that had been corrected there?
     MIRANDA -               Yes.
20
     VOSK -                  What does it show, what’s been done?
21
     MIRANDA -               It is analyst number 9, the second test, scratched out or lined
22                           through is a result of .102, and a result of .103 is put above
                             analyst number 9.
23

24

25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 136
 1   VOSK -                  So analyst number 9 entered the wrong data off the
                             chromatogram. It wasn’t caught, and so everybody went back
 2
                             here to try to correct it?
 3
     MIRANDA -               Yes.
 4   VOSK -                  Who’s analyst number 9?
     MIRANDA -               I am.
 5
     VOSK -                  Do you think you’ll check your chromatograms in the future to
 6
                             make sure the data’s correct that’s your entering into those
 7                           worksheets?
     MIRANDA -               Yes. I think that we are changing our policies to verify that there’s
 8
                             more checks and balances.
 9
     VOSK -                  No further questions Your Honor.
10   JUDGE -                 Okay, thank you. Does the State have any questions for recross?
     LYNCH -                 Mr. Miranda, can I actually just see what you were handed? I
11
                             didn’t get a look at it.
12
     JUDGE -                 Is that going to be admitted?
13   LYNCH -                 The document that you were just, the last one.
     MIRANDA -               The last document?
14
     LYNCH -                 Yes. Now, I guess you were asked about line 2 where the figure
15
                             that was crossed out was a .102 and a correct figure, I’m
16                           assuming is a figure of your .103?
     MIRANDA -               Yes.
17
     LYNCH -                 Is that significantly, statistically significant, the difference there?
18
     MIRANDA -               I wouldn’t say so, no.
19   LYNCH -                 Does it change your opinion as to the validity of that simulator
                             solution for use on Datamasters?
20
     MIRANDA -               I don’t think it would.
21
     LYNCH -                 Well do you know if it would? Is the other number within the
22                           range that’s required, the corrected number?
     MIRANDA -               Yes. The correct number is between the range that is required.
23
     LYNCH -                 Now you also testified to the series of mistakes that were on
24
                             some simulator solution certificates, one of which was a certificate
25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 137
 1                           where the average mean printed out as .040, and you said that
                             that was not an incorrect number even though it was not a
 2
                             number that was computed to the 4th digit, was that your
 3
                             testimony?
 4   MIRANDA -               Yes. I think I said that it wasn’t an incorrect number. It just didn’t
                             show all of the significant figures that were needed.
 5
     LYNCH -                 And if a number that was computed to the fourth digit was a
 6
                             number such as .0400, how would that appear if it was computed
 7                           without the two 00’s at the end?
     MIRANDA -               It would be a 0.04.
 8
     LYNCH -                 Isn’t .0400 the same as .04?
 9
     MIRANDA -               Repeat that again.
10   LYNCH -                 Is .0…?
     MIRANDA -               May I write this down?
11
     LYNCH -                 Is .0400 the same thing as .04 scientifically?
12
     MIRANDA -               Yes. It would be the same.
13   LYNCH -                 Now, you testified to some other problems with the certifications
                             that you signed, and that is that in a few cases the, I’d have to get
14
                             the language correct, the equivalent vapor concentration was
15
                             inserted in place of the average solution concentration, is that
16                           correct?
     MIRANDA -               Correct.
17
     LYNCH -                 And it’s easy to see how, those two numbers are sort of similar
18
                             when you look at them, and it’s fairly easy to see how somebody
19                           could have mistakenly assumed that a .0836 could be an average
                             solution concentration because it’s 4 digits, it’s, you’d look at it…
20
     MIRANDA -               It can be confusing, I realize that. I believe I had trials where
21
                             attorneys had believed that the wrong number was there simply
22                           because they looked at the wrong box.
     LYNCH -                 Okay. But these certificates are really only inaccurate if they’re
23
                             used at trial, isn’t that correct?
24
     MIRANDA -               My understanding…
25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 138
 1   LYNCH -                 My because when you testify at trial, you don’t testify to what’s on
                             your declaration, you testify to what’s on your worksheet, and that
 2
                             contains the correct information, isn’t that true?
 3
     MIRANDA -               When I testify I bring the worksheet with me and I testify as to the
 4                           worksheet, yes.
     LYNCH -                 So the fact that the certificates have inaccuracies on them doesn’t
 5
                             really mean anything unless they’re admitted at court, isn’t that
 6
                             right?
 7   MIRANDA -               I would presume so.
     LYNCH -                 Thank you. I don’t have any further questions.
 8
     JUDGE -                 Mr. Vosk?
 9
     VOSK -                  Thank you Your Honor. I’m handing you what’s marked as
10                           Exhibit 14 concerning the two years worth of simulator solutions
                             where the software wasn’t calculated correctly.
11
     LYNCH -                 Outside the scope of cross examination.
12
     LYNCH -                 It’s not outside. I’ll show how it’s not outside the scope Your
13                           Honor with respect to the question that reporting a .04 instead of
                             a full number doesn’t have any impact on the test. The State had
14
                             the witness testify that by reporting an .04 instead the full four
15
                             digits, there was no impact on the results of the test. In fact there
16                           are and we’ve got it documented here. And so I wanted to show
                             why it’s so important.
17
     JUDGE -                 Did he say that?
18
     VOSK -                  We want to show why it’s so important that those 4 digits be used
19                           because if 4 digits aren’t used the 7-9’s are pushed to a .08.
                             Something under a .15 is pushed to a .15.
20
     JUDGE -                 And we’ve already gone through that multiple times. Is there
21
                             something you don’t think that the Court understands about that?
22   VOSK -                  Well only Your Honor and the Court may understand this very
                             well, but I was, my concerns were raised when you indicated that
23
                             a mistake counted to the thousands or hundreds spot might not
24
                             matter. And what I’m about to show here is that his mistake in not
25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 139
 1                           reporting out to the hundreds or thousands spot does matter
                             because it has real impact on people’s cases in trial.
 2
     JUDGE -                 You’re talking about 4 ten thousandths of one percent of the CV
 3
                             which at 2.187 or 2.183 is still within the 5 percent parameter that
 4                           we’ve been talking about all this time. I understand what Exhibit
                             number 14 says and it’s been read to us repeatedly.
 5
     VOSK -                  Right. And what I’m trying to show Your Honor, is not that they
 6
                             violated necessarily, I believe we have established it violated
 7                           protocol, but that even if…
     JUDGE -                 By the way, just to clarify the mathematical part of this, the Court
 8
                             also understands that .0400 may round exactly to .04 and they’re
 9
                             exactly the same value. However, .0487 which was actually the
10                           figure in question does, or .0473 does not round to .04.
     VOSK -                  I think the Court understands. I have no further questions, Your
11
                             Honor.
12
     JUDGE -                 Thank you. Are there any further questions for Mr. Miranda?
13   LYNCH -                 No.
     JUDGE -                 Okay, thank you. You’ll be excused as a witness altogether.
14
                             We’ll be taking the afternoon recess.
15
     FOX -                   Thank you Your Honor.
16   LYNCH -                 If we could address something. I might have to cut out of here
                             about 4:25 today.
17
     JUDGE -                 I was told there was a few issues we need to address. So I’m
18
                             ready to do that.
19   LYNCH -                 One of them is, it’s my understanding that Ms. Gordon is
                             scheduled to testify tomorrow, and I know that there was some
20
                             motion to quash her subpoena that was previously brought.
21
     JUDGE -                 Yes.
22   LYNCH -                 And you ruled on it. I’m not addressing that, but I was hoping that
                             in the interest of time I could make a suggestion as to how her
23
                             testimony might go. I believe that, it’s my understanding that
24
                             likely many questions she will invoke the Fifth Amendment. And I
25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 140
 1                           was thinking that if Counsel could prepare a series of questions
                             that they intend to ask her and have her review them and have it
 2
                             entered as an exhibit and she can look at them and indicate that
 3
                             yes questions 1 through 50 or whatever she will be invoking the
 4                           Fifth, that we could proceed that way, instead of asking her one
                             by one and have her do it and take up a couple of hours of the
 5
                             Court’s time. I would be agreeable to making that part of the
 6
                             record and stipulating that she would be invoking that to those
 7                           questions as long as she did it on the stand under oath.
     JUDGE -                 Mr. Vargas.
 8
     VARGAS -                Thank you very much Your Honor. Your Honor, I’ll be conducting
 9
                             the examination of Ms. Gordon and I will not have all my
10                           questions written out for her. It’s going to depend upon what she
                             says on the stand number one. Number two, I really don’t want to
11
                             give a witness who is alleged to have committed perjury written
12
                             questions in advance so that she could try and prepare for her
13                           answers in an open courtroom. If she doesn’t know the answer to
                             the question she can say she doesn’t no. And if she wants to
14
                             assert a privilege, i.e. self-incrimination of some other privilege
15
                             that she chooses to assert, she can certainly do it from the
16                           witness stand which is her right. And so I would object to that and
                             I don’t think it’s appropriate and I would ask the Court not to order
17
                             that.
18
     LYNCH -                 Well I wouldn’t have any objection to having her review the
19                           questions on the witness stand. I don’t see any reason to give
                             them to her a few hours ahead of time, but if she’s in court on the
20
                             witness stand and says yes, I’ve looked at the questions and I will
21
                             be invoking my rights as to each and every question. And I don’t
22                           see how if she invokes her rights on one question and then a
                             follow up question related to that, I don’t see where she’d be
23
                             actually answering the question.
24

25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 141
 1   JUDGE -                 And now I don’t see the time saving, so I think that Ms. Gordon
                             can appear in court and be asked questions verbally. However,
 2
                             the issue of you leaving early certainly does not pose a problem
 3
                             with the Court although I am planning on proceeding through
 4                           4:30. So I understand the situation and that certainly is
                             authorized I’d have to say. It doesn’t pose a problem for the
 5
                             Court. I understand that the Defense wishes to preserve the
 6
                             calculations done by Ms. Peterson for illustrative purposes or for
 7                           use by a later witness, that they have taken a picture of it with
                             their cell phones or phone.
 8
     VOSK -                  Your Honor, with respect to illustrative purposes, we would be
 9
                             asking to have the commemoration of it admitted so it can be
10                           relied upon in argument.
     JUDGE -                 Well when I say illustrative purposes, I guess I’m thinking of a jury
11
                             trial which we don’t have going. But anyway, I understand what
12
                             you seek to do. Does the State have any objection to the
13                           Defense having preserved that picture, a picture of these
                             calculations in the manner described by use of a camera, albeit a
14
                             cell camera.
15
     LYNCH -                 I haven’t seen the representation of it. As long as it’s clear.
16   JUDGE -                 Okay. I’ll tell you what, we’ll make sure this doesn’t go away
                             tonight and maybe if you can download it and print it off, that
17
                             would be appreciated.
18
     VARGAS -                Certainly Your Honor. Thank you.
19   JUDGE -                 I would like to draw your attention to the fact that we’re up to oh,
                             13, 14, actually 15 exhibits that have been, no I take that back, 13
20
                             that have been marked, not admitted, at least one of them not
21
                             even referred to in the course of these proceedings. I’d just like to
22                           draw your attention to that.
     VOSK -                  With respect to that, we had intended to move at this point to
23
                             admit all of the prior exhibits, and I know the State’s got objection
24
                             to a couple, so I’ll let them make their objections.
25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 142
 1   JUDGE -                 Okay. Well 19 through 27 have been marked, identified in Ms.
                             Swenson’s testimony but not admitted. 28 and 29 were admitted.
 2
                             Exhibits 30, 32 and 33 have been referred to in the course of Mr.
 3
                             Miranda’s testimony and not offered. And 31 has evidently been
 4                           marked and never referred to in these proceedings. That’s what
                             my records reflect.
 5
     VOSK -                  I would just offer and move to admit all of the exhibits that we’ve
 6
                             had marked today. I think yesterday we had up through 15, and I
 7                           would just move to admit everything after 15. I know that each…
     JUDGE -                 We had admitted through 18 yesterday.
 8
     VOSK -                  Okay, so everything after that.
 9
     LYNCH -                 I would object to any simulator solution certifications or quality
10                           assurance certifications that are, I would object to their admission
                             because they are only relevant if a live person doesn’t testify in
11
                             trial. And that’s the only time they would ever be admitted in
12
                             court. And so without a showing that in any of the cases that are
13                           before the Court, that a live person is not going to testify at trial. I
                             don’t see how the accuracy or inaccuracy of those certificates are
14
                             relevant.
15
     JUDGE -                 Well the admission at this point is not strictly for purposes of the
16                           hearing right now. It’s proceeding under rules 8.3 and 3.6 if I
                             understand correctly, not trial. If they’re admitted for purposes of
17
                             these hearings on the motions, then that’s one thing. Trial’s
18
                             another thing altogether.
19   VOSK -                  We’re only asking at this point to be admitted to the hearing Your
                             Honor. I ask (unintelligible) at trial.
20
     JUDGE -                 So any other objections as to exhibits?
21
     LYNCH -                 Not from me, but Ms. Montgomery?
22   MONTGOMERY -            Your Honor, if I could just note, there are two exhibits, and I don’t
                             know the numbers…
23
     JUDGE -                 Maybe if you tell me what they are I’ll tell you what the numbers
24
                             are.
25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 143
 1   MONTGOMERY -            It’s Exhibit number 33, it’s for batch number 07010, and then the
                             other number I don’t have, it’s for batch number 07005. And I
 2
                             guess my objection isn’t necessarily to the admission of those
 3
                             exhibits, but I just wanted to point out, those are not exhibits that
 4                           pertain to any of the Datamasters utilized in any of the motions
                             that are filed here today. And the State had no previous notice
 5
                             prior to those exhibits being handed forward that those exhibits
 6
                             would be offered to the Court and we could not prepare for
 7                           (unintelligible) from those exhibits. And so I’d just like to note that
                             for the record that those were two exhibits that have nothing to do
 8
                             with the cases, any of the cases, I believe there’s 51 that have
 9
                             been filed today.
10   JUDGE -                 Okay. Before I rule on…
     WILSON -                Thank you Your Honor.
11
     JUDGE -                 Mrs. Wilson.
12
     WILSON -                Thank you. Karen Bernice Wilson on behalf of several
13                           defendants who have been joined and represented by Skagit
                             County Public Defender. I do believe, although batch number
14
                             7010 is not a batch for an in particular defendant for which I’ve
15
                             joined and I’m aware as to their relevance to the remaining
16                           defendants who are on today, I think it is relevant as to the
                             toxicologists, specifically Mr. Miranda’s testimony regarding his
17
                             specific accuracy in how he enters the data on the worksheet and
18
                             goes straight to the issue of reliability which the Court needs to
19                           determine.
     VOSK -                  And Your Honor, with respect to that.
20
     JUDGE -                 Thank you.
21
     VOSK -                  With respect to that we’ve had, we’ve heard over and over again
22                           that oh, nothing’s wrong, it’s just dates that are wrong, it’s just the
                             calculations that were wrong but the date is okay, alright? We’re
23
                             finding these things out on a daily basis as this thing goes on. It’s
24
                             a developing situation. And so this was only brought to my
25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 144
 1                           attention, I think it was today, it might have been yesterday, but it
                             does now show that it’s not only with respect to just dates and
 2
                             calculations, it’s the very data these people are putting into to the
 3
                             worksheets that we now have evidence that they’re not even
 4                           careful there. And so I think it’s very relevant to what we’re doing
                             and I would have been happy to give the State notice but the
 5
                             public defender just made me aware of it.
 6
     JUDGE -                 Before we rule on this though, Exhibit number 31 has never been
 7                           identified that I’m aware of in court. I haven’t seen it.
     FOX -                   We’ll be hearing about that next Your Honor.
 8
     JUDGE -                 Okay. Well that’s why I’m noting that and that’s why that’s not
 9
                             going to be admitted. However, as to Exhibits, and specifically
10                           with regard to 33, in fact all of the proffered exhibits except
                             Exhibits 30 and 32, the Court would find those are business
11
                             records, they have been properly authenticated, they will be
12
                             admitted for purposes of this hearing. Exhibits 30 and 32 there’s
13                           no objection to so those will be admitted as well, although.
     JUDGE (2) -             30 there was an objection to.
14
     JUDGE -                 Was there an objection to it? Those are, 30 and 32 are the two
15
                             tip line documents. There was an objection to 30?
16   LYNCH -                 I had objected to that one.
     JUDGE -                 Okay.
17
     LYNCH -                 They’re meaningless without the person I think who made the call.
18
     JUDGE -                 Okay. If there’s an objection to those, they are not business
19                           records, they haven’t been properly authenticated. The
                             objection’s to 30 and 32 at this point in time stand. I apologize for
20
                             my missing the fact that there was an objection to them. 19
21
                             through 27 are admitted and 33 is admitted.
22   CLERK -                 What was the last one you said?
     JUDGE -                 19 through 27, and then in addition number 33. So the marked
23
                             exhibits that haven’t been admitted, that’s 30, 31, 32.
24
     CLERK -                 And there was an objection to 33, correct?
25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 145
 1   JUDGE -                 There was an objection to 33. It was overruled, admitted over
                             objection. Okay. Now, you may call your next witness.
 2
     FOX -                   The next witness Your Honor, would be Ed Formoso.
 3
     JUDGE -                 Okay, thank you. Sir, step forward please and raise your right
 4                           hand. Do you solemnly swear or affirm any testimony you give in
                             connection with today’s proceeding will be the truth?
 5
     FORMOSO -               Yes I do.
 6
     JUDGE -                 Okay, thank you Sir. If you will step forward and have a seat at
 7                           the witness stand and make yourself comfortable.
     FOX -                   Good afternoon Sir.
 8
     FORMOSO -               Good afternoon.
 9
     FOX -                   Would you state your name for the record please?
10   FORMOSO -               Edward Formoso.
     FOX -                   Mr. Formoso, are you employed by the state toxicology
11
                             laboratory?
12
     FORMOSO -               Yes.
13   FOX -                   And how many years have you been so employed?
     FORMOSO -               Approximately 32.
14
     FOX -                   32?
15
     FORMOSO -               Yes.
16   FOX -                   If I’d read your CV correctly, you’ve testified over 900 times?
     FORMOSO -               At least, yes.
17
     FOX -                   And are you intimately familiar with the workings of the state
18
                             toxicology laboratory?
19   FORMOSO -               Yes.
     FOX -                   Now, are you, do you know who Ann Marie Gordon is?
20
     FORMOSO -               Yes.
21
     FOX -                   How long have you known her?
22   FORMOSO -               During her time when she was employed with the state toxicology
                             lab. I can’t remember exactly when she started.
23
     FOX -                   10 years or something anyway?
24

25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 146
 1   FORMOSO -               Like I said, I really don’t have a recollection as to when she
                             started and I knew her up until today.
 2
     FOX -                   And so you knew her from the day that she started with the tox
 3
                             lab until whenever it was that she resigned from there?
 4   FORMOSO -               Right.
     FOX -                   Your relationship with her in the lab, did you consider her to be a
 5
                             friend?
 6
     FORMOSO -               I considered her to be a co-worker.
 7   FOX -                   Now, were you present when she announced that she was
                             resigning from the lab?
 8
     FORMOSO -               No.
 9
     FOX -                   You were actually off work that day, weren’t you?
10   FORMOSO -               Yes.
     FOX -                   And how did you find out that she had resigned from the lab?
11
     FORMOSO -               She called me that day.
12
     FOX -                   Okay. She called you what, on a mobile phone or something?
13   FORMOSO -               I believe so. I can’t remember where I was at. She did, she
                             called me.
14
     FOX -                   And did she tell you why she had resigned?
15
     FORMOSO -               I mean not in specific detail. I asked her why. Her reason, there
16                           really much of reason other than she just resigned. I mean I knew
                             of the allegations, but the reason why she chose to resign rather
17
                             than you know, stay on, she never really did give a good
18
                             explanation of that.
19   FOX -                   When you state that you knew of the allegations, what allegations
                             is it that you’re speaking of when you say that?
20
     FORMOSO -               That she signed certificates of solutions that she didn’t actually
21
                             perform the tests on.
22   FOX -                   When did you first hear that this conduct was alleged by someone
                             about her?
23
     FORMOSO -               Gosh, you know, I really can’t remember exactly. It would have
24
                             been whenever the second phone call came in and then an
25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 147
 1                           investigation started. I have no specific recollection of the exact
                             date.
 2
     FOX -                   Before that date, when you say the second phone call, are you
 3
                             referring to a phone call to a tip line?
 4   FORMOSO -               Right.
     FOX -                   Have you seen a document that purports to record that tip?
 5
     FORMOSO -               I’ve never seen it. I heard it did exist but I’ve never seen it.
 6
     FOX -                   What do you know about that tip?
 7   FORMOSO -               That it was more specific than the first one. That’s all I knew.
     FOX -                   That it was more specific then the first one? Has anyone
 8
                             discussed with you the actual substance of that tip in terms of
 9
                             what was stated in the tip, the words used?
10   FORMOSO -               From a number of people I’ve heard different versions. So without
                             actually seeing it in writing I really don’t know what it did say.
11
     FOX -                   Alright. Let’s just back up for a little bit in terms of simulator
12
                             solution preparation. You’re intimately familiar with that process,
13                           aren’t you?
     FORMOSO -               Yes.
14
     FOX -                   And when a simulator solution in the process of being tested as
15
                             part of the certification process, you begin with, or you fill out a
16                           worksheet, don’t you?
     FORMOSO -               One is created on the computer, yes.
17
     FOX -                   Right. And that worksheet is part of the process that eventually
18
                             winds up with a certified solution being released out for use with
19                           Datamasters on live subjects, isn’t that right?
     FORMOSO -               Right.
20
     FOX -                   And when someone signs their name onto what you call the
21
                             worksheet, and that is what you call it, isn’t it?
22   FORMOSO -               That’s what I call it yes.
     FOX -                   Okay. When someone signs onto that, well first of all, the names
23
                             are typed on there, aren’t they? Who types the names?
24

25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 148
 1   FORMOSO -               Well they’re not typed. They come from a drop down menu, but
                             they’re entered on there, so essentially.
 2
     FOX -                   Okay. So it’s just like, so there’s a drop down menu, the name is
 3
                             selected. How about the date that would accompany that name?
 4                           Is that also a drop down menu?
     FORMOSO -               No. That’s actually typed in.
 5
     FOX -                   That’s typed in, alright. Now, the form appears to have a
 6
                             signature that would appear between the typewritten name and
 7                           the date, and that signature there, how does that come to be
                             placed onto the form?
 8
     FORMOSO -               Well after all the data is entered on the computer, the form is
 9
                             printed out, so you have a hard copy. And then it’s passed
10                           around to the various toxicologists and they sign it.
     FOX -                   Okay. When it’s all, let’s say there’s 14 toxicologists who are
11
                             doing the testing and the last one completes the testing and has
12
                             signed that form, then what happens? The form goes to someone
13                           who’s like an administrative assistant or something like that?
     FORMOSO -               It goes to you know, one of the secretaries in the office.
14
     FOX -                   Right.
15
     FORMOSO -               They process it.
16   FOX -                   And when you say they process it, do they take the information on
                             that sheet and then create declarations for each person to sign?
17
     FORMOSO -               Correct.
18
     FOX -                   And so it’s expected then that that’s the ultimate outcome of the
19                           worksheet is that eventually the people who sign will be signing
                             the declaration regarding that?
20
     FORMOSO -               Right.
21
     FOX -                   Okay. Because that’s the way it always happens. It has
22                           happened for years in the process, right?
     FORMOSO -               Yes.
23

24

25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 149
 1   FOX -                   Okay. Now, with respect to the certifications, well let me ask you
                             this just straight up. At some point you began testing simulator
 2
                             solutions on behalf of Ann Marie Gordon?
 3
     FORMOSO -               Yes. Every solution that, I tested a large number of solutions for
 4                           (unintelligible).
     FOX -                   And how did it come to be that you tested solutions for her?
 5
     FORMOSO -               Well, I was sort of delegated or you know, I kind of assumed the
 6
                             duty of being responsible for sending out the solutions to the
 7                           technicians. And at some point in time I was told that I could not
                             send out the solutions until everyone in the lab had tested the
 8
                             solution because we’ve always wanted everyone in the laboratory
 9
                             to test it. And there came a point when Ann Marie was always the
10                           last one to test it and there came a day when I got tired of waiting
                             for her to test the solutions and getting phone calls from
11
                             technicians wanting their field solutions. And so I analyzed the
12
                             solutions for her to expedite the process.
13   FOX -                   And about when did that begin that you did that to expedite the
                             process?
14
     FORMOSO -               I couldn’t remember. It was, I know at one time I went back and
15
                             looked you know, to the beginning of 2005 and it appeared that I
16                           tested the first solution in 2005, and it did not appear that I tested
                             the one for her, the last one in 2004, but I’ve seen other
17
                             documents purporting that I tested solutions as far back as 2003
18
                             and you know, without actually examining the records I, there’s no
19                           way to, for me to know for sure.
     FOX -                   Did you, well let me ask you, was it, I mean if you’re doing this for
20
                             a lengthy period of time, was it rather common knowledge in the
21
                             lab that you were doing this?
22   FORMOSO -               You know I don’t know. I didn’t you know, openly share with
                             people but I didn’t you know, come in at night and do it or the
23
                             weekends, so you know, I have no idea who knew and who
24
                             didn’t.
25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 150
 1   FOX -                   And did you discuss this procedure at any time with Estruardo
                             Miranda?
 2
     FORMOSO -               Not that I can remember.
 3
     FOX -                   You don’t remember?
 4   FORMOSO -               I don’t know for sure.
     FOX -                   Alright. Now, how about Ann Marie Gordon? Did you discuss
 5
                             that this was a practice with her?
 6
     FORMOSO -               Not specifically, no.
 7   FOX -                   Well, let’s, let me show you what’s going to be marked as the next
                             exhibit in order. And Your Honor, this is a compilation of 47
 8
                             pages I believe, I’m taking one out, of worksheets, one exhibit,
 9
                             make it easier. Perhaps you could mark it on the backside. It’s
10                           marked on the very last page Your Honor in case, and it appears,
                             we had to turn it over to see the exhibit number.
11
     JUDGE -                 You’re saying it’s a compilation of worksheets?
12
     FOX -                   Yes Your Honor.
13   JUDGE -                 Okay.
     FOX -                   It’s 47 pages commencing with a batch number dated 1-16-04
14
                             and ending with a batch number dated 2-7-07, February 7, 2007.
15
     JUDGE -                 Exhibit 34 yes.
16   FOX -                   And it excludes well, this will be a separate exhibit. So, Mr.
                             Formoso, have you had an opportunity to review what is now
17
                             marked as Exhibit number 34?
18
     FORMOSO -               Yeah, I briefly went through it.
19   FOX -                   Okay. For every, does every one of those pages indicate that, do
                             the documents represented by every one of those pages indicate
20
                             that on the same date you and Ann Marie Gordon tested a
21
                             particular solution?
22   FORMOSO -               All except for 05036.
     FOX -                   May I look at that?
23
     FORMOSO -               Those dates aren’t the same. One’s 10-17 and one’s 10-13.
24

25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 151
 1   FOX -                   I Your Honor, will remove that. We’re down now to 46 pages. I
                             want to make that a separate exhibit. And I’ll keep your place if
 2
                             you want to…?
 3
     FORMOSO -               No, I.
 4   FOX -                   You already know?
     FORMOSO -               Yes.
 5
     FOX -                   Okay. As to the remaining pages that are comprised in Exhibit
 6
                             34, do they, each of those pages of that exhibit, do they contain
 7                           dates where it is the same date where it indicates that you and
                             Ann Marie Gordon tested simulator solutions?
 8
     FORMOSO -               Right. On all the other exhibits, all the other forms the dates were
 9
                             the same.
10   FOX -                   Now, on a couple of these other pages, such as Exhibit number,
                             first of all, I move for admission of this document which is Exhibit
11
                             number 34 as representative of dates where Mr. Formoso and
12
                             Ann Marie Gordon in common on the same date were tested
13                           solutions or so the documents indicate.
     JUDGE -                 Any objections from the State?
14
     LYNCH -                 No, I don’t think so.
15
     JUDGE -                 Okay, it will be admitted for that limited purpose.
16   FOX -                   Thank you Your Honor. Now, on this document which has been
                             marked Exhibit number 35, Ann Marie Gordon purported to test
17
                             the simulator solution on which date?
18
     FORMOSO -               6-30-2005.
19   FOX -                   And was another toxicologist also indicated on the form as testing
                             a solution on the same date?
20
     FORMOSO -               Yes.
21
     FOX -                   Who is that?
22   FORMOSO -               Melissa Pemberton.
     FOX -                   Do you know whether Melissa Pemberton tested solutions for Ann
23
                             Marie Gordon?
24
     FORMOSO -               I don’t know. I don’t believe so, but I don’t know.
25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 152
 1   FOX -                   Do you believe or do you know whether anyone else tested
                             solutions for Ann Marie Gordo besides yourself?
 2
     FORMOSO -               I don’t know specifically, but I don’t believe so.
 3
     FOX -                   Alright. This next document…
 4   JUDGE -                 Excuse me. The last document was an exhibit, and if so what
                             number?
 5
     FOX -                   Yes Your Honor. This was Exhibit number…
 6
     FORMOSO -               35.
 7   FOX -                   35, a single sheet.
     JUDGE -                 Thank you.
 8
     FOX -                   The exhibits that are, the pages that are listed in this exhibit,
 9
                             Exhibit number 34, would it be safe to say that for all of those that
10                           you did the testing for Ann Marie Gordon in each of those
                             instances?
11
     FORMOSO -               I don’t believe so, no.
12
     FOX -                   Do you know which you did do the testing for an which you did
13                           not?
     FORMOSO -               There’s probably a few in there that I could probably make out,
14
                             but I would be pretty certain that I did not, but I would you know,
15
                             want to check the actual data to be able to tell for sure.
16   FOX -                   Let me ask you this way, for the simulator solutions referenced in
                             that exhibit, would you say that you would have tested more than
17
                             half of those simulator solutions for Ann Marie Gordon, or are you
18
                             simply, well let me ask you this, do you have an answer for me?
19   FORMOSO -               I didn’t count them up. What I would tell you is that where her
                             name is listed right after my name, I feel pretty confident without
20
                             actually checking the data, that those are solutions that I analyzed
21
                             for her. Where our names aren’t right after each other, even
22                           though they’re on the same date, as you notice there’s a lot of
                             solutions that are tested on the same date by other analysts.
23
                             That’s fairly common. But where are names are separated, those
24
                             I would want to check the data to determine whether or not I
25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 153
 1                           actually did test them. Because there are some solutions she
                             actually tested herself.
 2
     FOX -                   Alright. On the pages of that exhibit in which there are, for a
 3
                             given date, only you and Ann Marie Gordon for a given date.
 4                           Would those, would that be an instance where you tested for her?
     FORMOSO -               If her name was listed right after mine I would say there’s a very
 5
                             high probability that that’s a solution that I analyzed for her.
 6
     FOX -                   Okay. Now, this document, Exhibit number 34, it has a number of
 7                           signatures on here.
     FORMOSO -               Right.
 8
     FOX -                   Now, would there be times when you would be testing solutions
 9
                             for Ann Marie and maybe she’s at a conference in another state?
10   FORMOSO -               That might be a possibility. I don’t know.
     FOX -                   What would normally happen in the ordinary course of procedure
11
                             to cause a person’s signature to be on this form? How does that
12
                             happen in the usual process?
13   FORMOSO -               Like I said, the form is printed out, the hard copy, and then it’s
                             passed around to the toxicologists and they sign next to their
14
                             name.
15
     FOX -                   You had a need, as I understand it, to get these solutions out
16                           sometimes?
     FORMOSO -               Correct.
17
     FOX -                   Did you ever sign Ann Marie Gordon’s name to a worksheet for
18
                             her on her behalf?
19   FORMOSO -               No.
     FOX -                   Are you familiar with her signature?
20
     FORMOSO -               I guess yes. I’ve seen it about 400 times.
21
     FOX -                   Alright. Then let me draw your attention if I may to pages 1 and 2
22                           of Exhibit 34, and please don’t remove them or they’ll be out of
                             order. They’re not independently numbered, and I could so
23
                             number them if the Court would wish, Your Honor. Would you
24

25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 154
 1                           examine Ann Marie Gordon’s purported signature on that page,
                             on both pages?
 2
     FORMOSO -               Yeah.
 3
     FOX -                   Would you agree that those are different looking signatures?
 4   FORMOSO -               To a certain degree, yes.
     FOX -                   Do you know whether anyone else in the lab signed on behalf of
 5
                             Ann Marie Gordon?
 6
     LYNCH -                 Objection. I think that this calls for speculation. I don’t think
 7                           without an expert testifying can anybody say that these signatures
                             do not belong, were not done by the same person.
 8
     JUDGE -                 I understand if he asks if Mr. Formoso knew somebody else
 9
                             signing documents for Ms. Gordon, so the objection’s overruled.
10   FORMOSO -               I, like I said before, I don’t know, but I don’t believe anybody
                             would.
11
     FOX -                   Okay. Now, how would Ann Marie Gordon know when you had
12
                             completed testing on her behalf?
13   FORMOSO -               Probably not until the worksheet was being passed around.
     FOX -                   Alright.
14
     FORMOSO -               Or I guess, I would also add that we do keep a, normally a, you
15
                             know just an informal log with everybody’s name to check off
16                           when they’ve done the solution on the refrigerator in the alcohol
                             testing area. You know, if she so chose, she would be able to go
17
                             in and check and see if her name had been checked off I guess.
18
     FOX -                   And if her name had been checked off, what would that mean?
19   FORMOSO -               I would have known that I tested the solution for her.
     FOX -                   Alright. Is this one way that you communicated to Ann Marie
20
                             Gordon that you had completed the testing of her solution was by
21
                             the check mark on a form on a refrigerator?
22   FORMOSO -               That form, that check off form, that’s for toxicologist to know if
                             they need to check or actually for me to know if the solutions have
23
                             been completed tested.
24

25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 155
 1   FOX -                   If I understood you correctly, you stated that she could go look at
                             that form and determine that the testing had been completed?
 2
     FORMOSO -               If she wanted to she could, yes.
 3
     FOX -                   Do you know whether she ever did do that?
 4   FORMOSO -               Well I believe she did because like I said, there were times when
                             she actually tested solutions herself. So she knew the process
 5
                             and knew that if she tested herself she would have checked her
 6
                             name off.
 7   FOX -                   Alright. And it would be normal procedure for Ann Marie Gordon
                             subsequent to the completion of a worksheet which she has
 8
                             signed her name to to thereafter sign a declaration under penalty
 9
                             of perjury that she had done the testing of that solution?
10   FORMOSO -               Possibly. I know that’s, I know those were put into our individual
                             mailboxes, so I would have assumed that that was the case.
11
     FOX -                   You mentioned a, I think you said a second tip or a second phone
12
                             call.
13   FORMOSO -               Correct.
     FOX -                   What do you know of a first tip?
14
     FORMOSO -               It was very vague. That was, I think I saw a printout of that and
15
                             that it was very vague.
16   FOX -                   When did you see a printout of it?
     FORMOSO -               I can’t remember the date. It was probably sometime close to
17
                             whenever it was shared with Dr. Logan and Ann Marie.
18
     FOX -                   And do you know, I mean when are we talking about? Do you
19                           know when it was shared with Dr. Logan and Ann Marie?
     FORMOSO -               No.
20
     FOX -                   I’ll show you what’s been previously marked as Exhibit 30 and ask
21
                             you if that’s the vague message that you mentioned that you had
22                           some knowledge of?
     FORMOSO -               Yeah, I remember the falsified business.
23

24

25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 156
 1   FOX -                   Right. You remember the falsified business. When you state
                             that, the form simply has one sentence, simulator solutions are
 2
                             being falsified as far as certification.
 3
     FORMOSO -               Right.
 4   FOX -                   Now, it did not say that they were inaccurate. It said falsified as
                             far as certification.
 5
     FORMOSO -               Right.
 6
     FOX -                   And is it your testimony that you don’t know when you first
 7                           became aware of this tip being in existence?
     FORMOSO -               As to the exact date no, I can’t remember.
 8
     FOX -                   Would it, this tip is dated March, 2007. Would it have been
 9
                             somewhere around that time?
10   FORMOSO -               Well, like I said, I assume it was very close after because I
                             assume the process was, it went to Dr. Logan and from Dr. Logan
11
                             it went to Ann Marie, and I know the day she was, well I think it
12
                             was the day after she was informed, she called me into her office
13                           and showed it to me.
     FOX -                   Alright. Now, so you’re understanding of this process, if I
14
                             understand you correctly, is that such a tip would go to Dr. Logan
15
                             and then would go to Ann Marie, and at some time later you and
16                           she discussed that tip or she made you aware of it in some way?
     FORMOSO -               Right. That’s my impression of how it went.
17
     FOX -                   Alright. Who, was it Ann Marie who showed this tip which is
18
                             represented in Exhibit number 30?
19   FORMOSO -               Yes.
     FOX -                   Alright. Your Honor, I would move now for admission of Exhibit
20
                             30 which has previously not been admitted.
21
     LYNCH -                 No objection.
22   JUDGE -                 Okay. Admitted without objection.
     FOX -                   Now, that tip is dated March 15, 2007?
23
     FORMOSO -               Right.
24

25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 157
 1   FOX -                   And I’m going to show you a document which is labeled Exhibit
                             number 31. You can take more time if you wish.
 2
     FORMOSO -               I was just noticing that the stamp date here that says March 22nd
 3
                             when it was received in Dr. Logan’s office. So obviously it was
 4                           sometime after that date that I saw it.
     FOX -                   Alright. So it was sometime after March 22nd?
 5
     FORMOSO -               Correct.
 6
     FOX -                   That you would have seen it. Now that tip, well let me back up,
 7                           you’ve had along career now with the tox lab. Are you familiar
                             with the tip line that this would have come through?
 8
     FORMOSO -               Not really, no. I know where you know, as state patrol employees
 9
                             are, we get emails or something telling that it exists and I pretty
10                           much delete it and ignore it. That’s pretty much how much value I
                             paid attention to it.
11
     FOX -                   But this particular tip was of sufficient gravity that Dr. Logan, to
12
                             your knowledge, brought it to Ann Marie, and you and Ann Marie
13                           subsequently discussed it?
     FORMOSO -               Oh that, that tip? Yes. I mean, she showed it to me.
14
     FOX -                   Alright. Now, in, I’d like for you to take a look at this document
15
                             which is labeled Exhibit number 31.
16   FOX -                   Oh I’m sorry. May I have that back for just a moment?
     FORMOSO -               Sure.
17
     FOX -                   Okay. And can you identify that document?
18
     FORMOSO -               This is an interoffice communication from myself and Ann Marie
19                           Gordon to Dr. Logan, the Director of Forensic Laboratory Services
                             Bureau. Re: You know it’s about the simulator solutions.
20
     FOX -                   Right. And that document was produced by you and Ann Marie
21
                             Gordon as a report back to Dr. Logan regarding simulator solution
22                           preparation and certification.
     FORMOSO -               Right.
23
     FOX -                   And Dr. Logan had requested that you and Ann Marie investigate
24
                             the tip we’ve referred to which is dated March 22nd?
25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 158
 1   FORMOSO -               Right.
     FOX -                   And when you investigated that tip and reported back to Dr.
 2
                             Logan, you reported by virtue of this interoffice communication
 3
                             dated April 11, 2007 which is Exhibit number 31.
 4   FORMOSO -               Right.
     FOX -                   At this point Your Honor, I would move for admission of that
 5
                             document into evidence.
 6
     LYNCH -                 I have no objection.
 7   JUDGE -                 Admitted without objection.
     FOX -                   Now, Dr. Logan had asked you to investigate a claim that
 8
                             simulator solutions are being falsified as far as certification, right?
 9
     FORMOSO -               Right.
10   FOX -                   The memorandum you reported back to him with did not mention
                             the fact that you were testing simulator solutions for Ann Marie
11
                             Gordon.
12
     FORMOSO -               True.
13   FOX -                   Had that fact been discussed with Dr. Logan in any way in
                             connection with this April 11, 2007 memorandum or the tip that
14
                             you’ve mentioned?
15
     FORMOSO -               Well, obviously it’s not on the IOC.
16   FOX -                   Verbally, did you verbally discuss it?
     FORMOSO -               Did I? No.
17
     FOX -                   Were you present at a meeting where Ann Marie discussed that
18
                             with Dr. Logan?
19   FORMOSO -               No. I wasn’t present.
     FOX -                   Do you know whether that information was communicated to Dr.
20
                             Logan in any fashion at the time or before this memorandum?
21
     FORMOSO -               Well, I mean I was told by Ann Marie that she communicated with
22                           him.
     FOX -                   And you were told by Ann Marie that she had communicated to
23
                             Dr. Logan what, that you were preparing the simulator solution,
24
                             that you were testing the simulator solutions for her?
25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 159
 1   FORMOSO -               For her.
     FOX -                   Alright. And that that communication had occurred prior to April
 2
                             11, 2007?
 3
     FORMOSO -               That’s what I was told.
 4   FOX -                   Alright. Now, do you recall or do you know whether Ann Marie
                             Gordon was told by Dr. Logan to stop preparing solutions in
 5
                             March of 2007?
 6
     FORMOSO -               Well he told her she did not have to test or certify solutions
 7                           anymore, and she never did prepare them so.
     FOX -                   Okay. I’ll rephrase my question then. If I ask a bad question, let
 8
                             me know. There’ll be plenty of them.
 9
     FORMOSO -               Okay.
10   FOX -                   The question is, do you know whether Dr. Logan told Ann Marie
                             Gordon to stop testing simulator solutions in March of 2007 and
11
                             beyond?
12
     FORMOSO -               Yes.
13   FOX -                   When you say yes to that, is that a true statement that to your
                             knowledge she was so informed by Dr. Logan?
14
     FORMOSO -               That’s what she told me.
15
     FOX -                   Alright. And about when did she reveal that to you?
16   FORMOSO -               I believe it was on the day she told me that 1-800 printout.
     FOX -                   Which would have been prior to the April 11, 2007 report
17
                             indicated in Exhibit 31?
18
     FORMOSO -               Oh yes.
19   LYNCH -                 Could I just ask which exhibit he was referring to when he said
                             that 1-800?
20
     FOX -                   Would that be Exhibit number 30 that you were referring to?
21
     FORMOSO -               Correct.
22   FOX -                   That was Exhibit 30. Now may I show you what’s been marked
                             as Exhibit number 32 and ask if you’ve seen this before?
23
     FORMOSO -               I’ve never seen that before.
24
     FOX -                   You’ve never seen that before?
25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 160
 1   FORMOSO -               No.
     FOX -                   Okay. Was it ever communicated to you that a second tip had
 2
                             come through the tip line sometime in July of 2007?
 3
     FORMOSO -               I was aware that a second one came it. I don’t recall exactly
 4                           when I learned of it.
     FOX -                   May I have just a moment Your Honor?
 5
     JUDGE -                 Yes you may.
 6
     FOX -                   Your Honor, with that, I would have no further questions. I believe
 7                           Exhibits number 30 and 31 have been admitted, 32 has not. I
                             haven’t offered it yet. And two other exhibits were marked.
 8
     JUDGE -                 33 and 34 admitted, 35 isn’t.
 9
     FOX -                   I have Exhibits 35 and 36 I have not offered those. 36…
10   JUDGE -                 I wasn’t aware of 36.
     FOX -                   36 Your Honor, is a simulator solution worksheet dated October
11
                             10, 2005. And I’ll take these back.
12
     JUDGE -                 Okay. And I believe that with respect to Mr. Formoso it was
13                           discussed with Prosecutor Montgomery that Mr. Vosk would also
                             be examining Mr. Formoso as the scientific angle on matters. Mr.
14
                             Vosk?
15
     VOSK -                  I’m going to have an extraordinarily brief examination Your Honor.
16                           And probably welcomed, but I just need to see if I can find one of
                             the exhibits. Mr. Formoso, I’m going to hand you what’s been
17
                             marked as Exhibit 14. Have you seen that before?
18
     FORMOSO -               Yes.
19   VOSK -                  Do you know who wrote that?
     FORMOSO -               No.
20
     VOSK -                  In the first paragraph if you would just read that silently to
21
                             yourself, I’m going to ask you a few questions.
22   LYNCH -                 Your Honor, I’m going to object. The first paragraph has been
                             testified to by many previously witnesses. And I guess I’d ask for
23
                             an offer of proof as to what the nature the testimony Mr. Vosk will
24
                             discuss.
25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 161
 1   JUDGE -                 In this case it will be overruled in light of Exhibit 31.
     VOSK -                  Thank you Your Honor. In that first paragraph it indicates that
 2
                             there was an error due to an increase in the number of
 3
                             toxicologists testing the software, correct?
 4   FORMOSO -               Essentially yes.
     VOSK -                  Down near the end there’s a mention of a problem with precision
 5
                             also. Do you know what error’s being spoken about there? Only
 6
                             if you know, I’m not asking you if you’re guessing.
 7   FORMOSO -               I don’t know. I mean that you know, coefficient and variation of
                             CV’s, I mean so that would be my…
 8
     VOSK -                  Right. My question was, do you know what the problem was?
 9
     FORMOSO -               Oh no, I have no idea.
10   VOSK -                  I have no further questions Your Honor.
     JUDGE -                 Okay, thank you. Does the State have any further questions of
11
                             Mr. Formoso?
12
     LYNCH -                 Yes. Mr. Formoso, I just want to get down the timeline a little bit.
13                           You first, that first telephone tip that we’re talking about, I believe
                             it came in in March that was very short and vague, and I believe it
14
                             said something, simulator solution as being falsified as far as the
15
                             certification goes?
16   FORMOSO -               Right.
     VOSK -                  Did you actually see that or did somebody tell you about it?
17
     FORMOSO -               I believe I saw a copy of it, that I was shown a copy of it by Ann
18
                             Marie.
19   VOSK -                  Did you know what they were, that the anonymous tipster was
                             talking about in that?
20
     FORMOSO -               It was very vague. My impression, and that’s the reason for our
21
                             you know, the way we conducted the investigation was when I
22                           see falsified certifications, to me that meant falsifying the test
                             results. So that’s why we reviewed all of the test results and
23
                             verified that they were indeed correct and there was data to
24
                             support each and every test result.
25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 162
 1   LYNCH -                 Okay. And it was at the time that you heard about the tip that Ann
                             Marie Gordon also told you that she was told not to do anymore
 2
                             testing?
 3
     FORMOSO -               I believe that was the same day.
 4   LYNCH -                 So did you have any reason to, well did you know at that point
                             that she was signing declarations saying that she had tested
 5
                             those solutions?
 6
     FORMOSO -               You know probably intuitively, I probably you know, I was signing
 7                           them, everybody else is signing them. I never saw her sign them,
                             so you know I had no personal knowledge, but probably assumed
 8
                             she…
 9
     LYNCH -                 Did you ever see any certificates that she had signed?
10   FORMOSO -               I probably have over the years.
     LYNCH -                 Okay. But you don’t know if they were certificates that were from
11
                             solutions that you had done the testing on?
12
     FORMOSO -               No.
13   LYNCH -                 So when you saw that first tip, you didn’t immediately conclude
                             oh, they’re talking about Ann Marie’s certificates that she signed
14
                             because you didn’t really know if she were signing them?
15
     FORMOSO -               No. Because in our laboratory when we talk about certifying the
16                           simulation solution we’re talking about testing it. That’s what we
                             call certifying the solution is the five tests. So when I saw falsified
17
                             certification I thought falsifying test results.
18
     LYNCH -                 Okay. So the declarations that you signed for, in lieu of court
19                           testimony are something that are different when you say
                             certification?
20
     FORMOSO -               Well I would call those a certificate. Our terminology is it’s a
21
                             certificate.
22   LYNCH -                 Okay.
     FORMOSO -               A piece of paper.
23

24

25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 163
 1   LYNCH -                 So when you did your investigation you indicated that you
                             investigated the way that the tests were being tested and certified
 2
                             and you found everything was working normally.
 3
     FORMOSO -               Right. I went back and pulled all the folders with the actual
 4                           chromatographic data and compared each and every number on
                             the worksheets with the chromatograph, well I take that back. I
 5
                             may not have examined each and every number, I just checked to
 6
                             make sure that each individual had data to support it because I
 7                           know I didn’t check each and every number.
     LYNCH -                 So the investigation that you did, you felt was appropriate to the
 8
                             information that you were given as far as what was going on in
 9
                             the lab?
10   FORMOSO -               Correct.
     LYNCH -                 Now, I imagine in retrospect, doing the testing for Ann Marie
11
                             Gordon, you wouldn’t and it was probably not a smart thing to do?
12
     FORMOSO -               Well, in retrospect yes.
13   LYNCH -                 Okay. But do you still maintain the confidence in the results that
                             you obtained after you did the testing?
14
     FORMOSO -               Of course. I did my test and I did her test and I have the utmost
15
                             confidence in the reliability of the results that I got.
16   LYNCH -                 And in fact when she signed off on the worksheets whenever she
                             signed off on them, she had all the information in front of her
17
                             regarding how, what the results of those tests were, correct?
18
     FORMOSO -               Correct.
19   LYNCH -                 And to the best of your knowledge, well based on standard
                             practices in the lab, wouldn’t it be a standard practice for
20
                             somebody who’s signing off on a test would actually review,
21
                             especially when it’s right on the sheet in front of them, look at the
22                           numbers to see if they fall where they’re supposed to fall
                             according to the protocols established by Dr. Logan?
23
     FORMOSO -               That’s been our practice for quite a number of years to make sure
24
                             that, actually we’ve had a practice in reviewing or at least glancing
25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 164
 1                           at all the numbers to make sure that there isn’t a typographical
                             error you know, where a decimal point is out you know, in the
 2
                             wrong place, that type of thing.
 3
     LYNCH -                 And in fact this sheet, Ann Marie isn’t actually certifying legally for
 4                           purposes of testifying in court. She’s not certifying that she did
                             the tests. She’s just signing off that tests were done and she’s
 5
                             putting her signature on a line with a date next to it?
 6
     FOX -                   For a quick clarification, you’re referring to the worksheet at this
 7                           point?
     LYNCH -                 Yes, sorry. On a worksheet, she’s not certifying under penalty of
 8
                             perjury that she did the testing.
 9
     FORMOSO -               There’s no such statement on that sheet, no.
10   LYNCH -                 Okay. And in fact, she’s your supervisor. She’s the lab manager,
                             she can, I understand you didn’t say that she actually delegated
11
                             the duty to you specifically, but she didn’t object to it when you
12
                             started doing it?
13   FORMOSO -               That’s true.
     LYNCH -                 And in fact, as the lab manager she can ask you to perform
14
                             certain tests?
15
     FORMOSO -               She could, yes.
16   LYNCH -                 Now you also indicated that you thought that, or you’re fairly
                             confident that you didn’t test every batch for her, but you would
17
                             assume that where your signatures are together, like 10 and 11 or
18
                             11 and 12, that those were probably batches that you did test
19                           together. But in fact that doesn’t necessarily mean that you did
                             just that or the fact that you tested on the same day isn’t really
20
                             proof that you tested a batch for her, because in fact other people
21
                             tested the batches on the same day?
22   FORMOSO -               That’s right. The fact that you know, that the tests were done on
                             the same day doesn’t really mean anything to me. The fact that
23
                             her name follows mine on the list, like I said would be a high
24
                             probability that those were ones that I analyzed for her. But if our
25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 165
 1                           names were separated by you know, several spaces or on a
                             different date, I mean there’s no way that I tested her samples on
 2
                             a different day. I always tested them when I tested mine.
 3
     LYNCH -                 Okay. And finally, given all that’s happened regarding this issue
 4                           in the lab, do you have any qualms about the actual simulator
                             solutions, the validity of the simulator solutions that are currently
 5
                             for use on Datamasters as being valid to show accurate and
 6
                             reliable breath tests?
 7   FORMOSO -               No. I don’t believe there’s any problem with any of those
                             solutions that have ever left our laboratory.
 8
     LYNCH -                 Thank you. I don’t have any other questions.
 9
     JUDGE -                 Any questions?
10   FOX -                   I’m glad you’re sitting down Your Honor. We have no further
                             questions.
11
     JUDGE -                 No further? Okay, thank you. Well I see the time is nearly, well
12
                             25 past 4 if I read this correctly, actually 20 past 4. Would the
13                           parties be able to get anything meaningful done in the way of
                             questioning another witness if we continued?
14
     FOX -                   I have my doubts Your Honor. Any witness would take us
15
                             probably, well how long will the Court continue?
16   JUDGE -                 We’re going to 4:30 only.
     FOX -                   I don’t see any point. Mr. Vosk may differ, but I don’t see any
17
                             point.
18
     JUDGE -                 Trouble in paradise?
19   VOSK -                  We have been speaking with Ms. Wilson and Mr. Garcia. I
                             haven’t had the chance to speak with the prosecution. There are
20
                             a number of exhibits. If the State will stipulate that they’re in, I
21
                             think we can cut out and not call some witnesses. So at this time
22                           I don’t think (unintelligible) witness, but if the Court will give us
                             overnight we’re going to try to see if we can cut witnesses out so
23
                             we can be quick tomorrow.
24

25
     State v. Sharon K. Gilbert
26
     10-9-07 hearing - 166
 1   JUDGE -                 Okay. Then we’ll recess for the day. We’re going to resume
                             tomorrow at 9:30 mainly because I’ve got another hearing that I’m
 2
                             required to do and that’s scheduled for 9:00, so we’ll resume at
 3
                             9:30 tomorrow here.
 4   FOX -                   Thank you Your Honor.
     JUDGE -                 Thank you.
 5
     END OF TRANSCRIPT.
 6
     ______________________________________________________________________
 7   I HEREBY CERTIFY UNDER PENALTY OF PERJURY UNDER THE LAWS OF THE
     STATE OF WASHINGTON THAT THE FOREGOING TRANSCRIPTION IS TRUE AND
 8   CORRECT TO THE BEST OF MY ABILITY.

 9
     DATED: ________________________.              ____________________________________
10
                                                   RONDI L. TIERNAN
                                                   Legal Support Services
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     State v. Sharon K. Gilbert
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     10-9-07 hearing - 167

				
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