December 7, 2018 at 5:11 p.m.
Mendez defense challenges state's expert witness
Daubert hearing to be held Thursday
Mendez defense challenges state's expert witness
By Jamie Taylor and Heather Schaefer-
According to a motion filed Dec. 4, defense attorney Peter Prusinski intends to argue Chris Robinson, who is retired from the Georgia Bureau of Investigation's Division of Forensic Sciences, should not be allowed to testify for the state when Robin "Bob" Mendez stands trial in April 2019.
Mendez, who will turn 70 later this month, was charged with first-degree murder Feb. 6 in the cold case death of his then 33-year-old wife Barbara Mendez.
Mendez is accused of attacking his wife from behind as she performed closing tasks at the Park City Credit Union in Minocqua April 28, 1982.
According to the criminal complaint and previous court testimony, the branch manager found Barbara's body on the floor of the credit union at approximately 7:30 p.m. after Robin Mendez asked her to check on his wife because she was late for a church function.
According to the complaint, the manager told investigators she immediately noticed Barbara's car was still in the credit union parking lot and became alarmed after realizing that the door to the office was unlocked. After walking inside, she discovered Barbara's body face down on the floor in front of the credit union's safe.
She later noted that a deposit bag containing approximately $2,700 was missing but approximately $17,000 was plainly visible in the open safe.
The first officer who responded to the scene, Norm McMahon (who later became Chief of Police in Minocqua), made the same observations, according to the complaint.
"Chief McMahon stated that he noted that the safe was open and a large amount of money was visible in the safe, which immediately led Chief McMahon to believe robbery had not been the motive for the murder," the complaint states.
McMahon also noted there were no signs of forced entry to the building and Mendez had no defensive wounds on her body.
After conducting an autopsy, forensic pathologist Dr. Robert W. Huntington III announced Mendez died of "multiple blunt injuries, abrasions and lacerations to the head, with extensive skull fractures."
He theorized that the injuries were caused by a blunt instrument with a long striking surface "and there's a strong suggestion of an angle in an instrument," according to the complaint.
According to a report submitted by Robinson, the injuries found on the left side of Barbara's face and head are "consistent with being made by a flat, elongated tool" such as a pry bar or a Wonder Bar, tools that are routinely used in the furniture upholstery business."
The family of Robin Mendez operates an upholstery business, the complaint notes.
"Robinson also stated that the injuries to Barbara Mendez were consistent with Barbara Mendez being struck from behind by a left-handed person," the complaint states. "Robinson stated that the evidence was consistent with Barbara Mendez being struck multiple times after being knocked to the ground."
Oneida County district attorney Mike Schiek plans to call Robinson to testify at Mendez's bench trial before Judge Jill Falstad in April, but the defense is challenging the scientific accuracy of his findings.
"The plaintiff (Schiek) bears the burden of proof of establishing the reliability of the testimony by the preponderance of the evidence," Prusinski wrote in the motion. "The proffered testimony must be based 'upon sufficient facts or data,' be the 'product of reliable principals and methods,' and those principals and methods must be applied by the witness reliably to the facts of the case."
At Thursday's hearing, Falstad will be asked to apply the five so-called Daubert Standards to Robinson's findings.
The factors Falstad must weigh are:
• Whether the evidence can be, and has been, tested
• Whether the theory or technique has been subjected to peer review and publication
• The known or potential rate of error
• The existence and maintenance of standards controlling the technique's operation
• The degree of acceptance within the relevant scientific community
In the motion, Prusinski argues Robinson's observations in the Mendez case do not meet any of the criteria.
"In fact, it seems that Mr. Robinson conducted no scientific testing whatsoever in support of his opinion, nor did he explain any of the principals and methods utilized in order to render an opinion based upon specialized knowledge or training," Prusinski wrote.
"If Mr. Robinson cannot explain the principles and methods used to arrive at his conclusion, and if those principles and methods do not rely on specialized knowledge or training, then his opinion is little more than ipse dixit, or junk science. Mr. Robinson's forensic report provides no guidance on how the relevant scientific community validates tool mark identification," Prusinski notes.
The state has filed motions of its own, including a request to admit so-called "other acts evidence" in the form of Mendez's 1982 conviction for sexually assaulting a child.
In the motion, Schiek argues the sexual assault case is relevant to the murder case because it is the state's theory that the defendant's motive for killing his wife was the "affair" he was having with the teenage victim in the assault case.
"The state intends to introduce the other acts to illustrate motive by contending that the defendant committed the conduct in 18CF40 (the murder case) because the defendant was having an affair with the victim in 1982CR397 (the sexual assault case)," Schiek wrote.
After the murder, investigators learned Mendez was involved in a sexual relationship with a teenage girl. In an interview with Hook, the now adult woman confirmed she became sexually active with Mendez in the summer of 1981 when she was 14 years old.
"(The witness) stated she was very much in love with Robin Mendez and believed everything he told her. (She) said Robin Mendez told (her) that (he) was going to marry her," the complaint states.
The witness also admitted to being jealous of Barbara and said "we (herself and Robin Mendez) both said that we wished she (Barbara Mendez) was dead or that we wished she'd get into a car accident or something, just so that we could be with each other," according to the complaint.
The witness also told police Mendez told her that getting a divorce would make him look like a "bad guy" in the church and that the Bible forbids divorce.
She also told investigators she went to the Mendez home with her father the night of the murder and when she asked Mendez how he was doing in the wake of his wife's death he responded "I'm footloose and fancy free now."
In the motion, Schiek argues the prior acts should be admissible because "the evidence has a tendency to make a consequential fact more or less probable than it would without the evidence because the existence of an affair, as alleged, has a tendency to making the alleged conduct in (the murder case) more probable than it would without the evidence because it provides a motive."
In a second motion, Schiek requests that Mendez be required to state he has been convicted of one crime, if asked about his criminal history during cross-examination. According to the motion, Mendez was convicted of one count of first-degree sexual assault of a child as a habitual offender and one count of invasion of privacy back in 2002.
Court records from that case attached to the motion show that Mendez was accused of inappropriately touching a child and watching the child through a peephole.
He was sentenced to 8 years in prison and required to register as a sex offender.
Although nearly two decades old, Schiek argues the conviction should be counted because of the "gravity of the crimes and the inherent nature of deceitfulness of the crimes."
Mendez was bound over for trial on the murder charge following a lengthy preliminary hearing in late February. He entered a not guilty plea in April and waived his right to a jury trial four months later.
Due to the jury waiver, Falstad alone will determine his guilt or innocence. Twelve days have been set aside on the court calendar for testimony in the case.
Because the charge is based on the homicide statutes in place in 1982, Mendez faces live in prison if found guilty.
Jamie Taylor may be reached via email at jamie@rivernews online.com.
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