January 4, 2019 at 4:10 p.m.
Judge to rule on Mendez motion Feb. 21
Defense is challenging the admissibility of forensic testimony
Judge to rule on Mendez motion Feb. 21
By Jamie Taylor and Heather Schaefer-
According to online court records, Falstad will render an oral ruling on the defense's "Daubert" motion, and any other motions before the court, in a daylong hearing set to begin at 9 a.m.
Mendez, 70, of Minocqua, is accused of attacking his wife, Barbara, from behind as she performed closing tasks at the former Minocqua Park City Credit Union on April 28, 1982.
Oneida County district attorney Michael Schiek wants to call a retired Georgia Bureau of Investigation employee, who now works as an independent forensics consultant, to testify about wound analysis studies he conducted that led him to the opinion that a specific type of pry bar, known as a Wonder Bar, was used to bludgeon Barbara Mendez.
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 consultant, Chris Robinson, wrote in a report on the case.
At the time of the murder the Mendez family operated an upholstery shop and he would have had easy access to such a tool, it was noted in the criminal complaint.
Robinson also stated in his report that the injuries to Barbara Mendez, who was 33 years old when she was killed, were consistent with being struck from behind by a left-handed person, the complaint states.
Defense attorney Peter Prusinski has argued Robinson should not be allowed to testify because his work in this case lacks scientific rigor. There were no scientific controls and there is no way to test the accuracy of his work, Prusinski wrote in his motion seeking to bar the testimony.
Robinson appeared before Falstad via video conference in December to answer questions about his findings.
The consultant began by reviewing his 21-year career in forensics.
"During my career, I logged over 15,000 hours on the comparison microscope, and I have performed over 100,000 forensic examinations," Robinson said. "I've currently worked over 8,000 actual cases. I have attended around 1,000 autopsies in my career."
Robinson also said he has testified in 80 to 100 cases where he was called on to do wound analysis similar to what he was asked to do in this case.
He repeatedly stressed that crime scene reconstruction, which is his specialty, draws on many fields of study such as wound analysis, blood splatter and other factors.
After agreeing to conduct a wound analysis in this case, Robinson said he was sent the original police reports, photos and diagrams of the scene, autopsy reports, photos and test results. This is how he proceeds with any case he consults on, he testified.
"Anything that can be provided to me that can help me with my examination of the case (is reviewed)," Robinson said, adding that his work is scientific and listing four national or international organizations dedicated to the advancement of the practice
Schiek then entered a Wonder Bar and three clay pieces into evidence.
Robinson testified that he used the clay to reproduce wounds shown on two photos of Barbara Mendez's head taken at autopsy. Although the clay isn't an exact match for human skin, hair and bone, it is a medium used by other crime scene reconstruction experts across the country, he testified.
"If you look at the ragged wounds on the head and you then look at the marks I made in the clay with the pry bar, you can see that they are very consistent with each other," Robinson said. "That is because the bar is moving across her skull, her head is moving, the assailant is moving, based on all the movement you have, it makes a ragged, irregular wound, not a straight wound."
He added that "a Wonder Bar, or a tool of that nature, would have been consistent with the type of tool that would have produced the injuries" that he observed in the autopsy photos.
Under cross-examination by Prusinski, Robinson testified he arrived at the conclusion listed in his report based on the tests he performed using the clay. However, he admitted that he did not have any castings of the actual wounds Barbara Mendez suffered, did not measure the wounds he arrived at with the clay, didn't have any way to measure how fast the Wonder Bar was going when it struck the clay, and there are no peer-reviewed presentations on the techniques he used.
Still, Robinson stood by his work and report as being accurate to a reasonable degree of scientific certainty.
After hearing from Robinson, Falstad announced she would take the matter under advisement and issue a ruling at a later date.
Mendez was bound over for trial on the murder charge following a lengthy preliminary hearing in late February 2018. 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 in the month of April have been set aside on the court calendar for testimony.
Because the charge is based on the homicide statutes in place in 1982, Mendez faces live in prison if convicted.
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