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	1	in their reports, which is what cross-examination is for.
	2			MR. CORGAN: Well, those are our
	3	objections, Your Honor.
	4			THE COURT: Well, overrule the objection
	5	then. Do you	have -- before we take a break and bring the
	6	jury in, do you have the tape set up to start at the point
	7	we discussed?
	8			MR. CARLSON: We’ll need to do that.
	9			THE COURT: Do that on the break. We’ll
	10	take a break while we’re getting all this set up and the
	11	attorneys have	a chance to take a break.
	12		(A BRIEF RECESS WAS HAD. AFTER WHICH THE
	13		 FOLLOWING PROCEEDINGS WERE HAD WITHIN THE
	14		 HEARING OF THE JURY:)
	15		THE COURT: All right. Show the jury’s all
	16	back present.  Thank you again for your patience. We’ve
	17	had to cover, again, some evidentiary issues prior to
	18	calling the next witness. Mr. Carlson.
	19			MR. CARLSON: Your Honor, we’d call Roger
	20	Shuy.
	21			THE COURT: You’ve previously been sworn.
	22	You’re still under oath, Mr. Shuy. Go ahead and take the
	23	same stand.
	24	-----------------------------------------------------------------------------
	25		       ROGER W. SHUY

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	1	having been first duly sworn to tell the truth, the whole
	2	truth, and nothing but the truth, testified as follows:
	3		             DIRECT EXAMINATION
	4	BY MR. CARLSON:
	5	Q	State your name for us please.
	6	A	My name is Roger W. Shuy, spelled S-H-U-Y.
	7	Q	Where do you live, sir?
	8	A	I live at 2032 48th Street in Washington, DC.
	9	Q	What’s your business, profession or occupation?
	10	A	I am a professor of linguistics at Georgetown
	11	University in Washington, DC. I’m a linguist.
	12	Q	Can you tell the ladies and gentlemen of the jury
	13	what linguistics is please?
	14	A	Sure. Linguistics is the scientific study of
	15	language. Like any science, linguistics has the tools and
	16	characteristics and approaches of description, comparison
	17	and taxonomies, so that we make decisions about what’s
	18	similar and what’s different on many different levels of
	19	language, and it doesn’t make any difference which
	20	language.
	21		          For example, if you study the sound systems
	22	of language, the noises we make when we talk, and see how
	23	they are organized into a given language, describe the
	24	organization and compare that with other languages, that’s
	25	call phonology. We describe the way words are put

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	1	together, and we, like other sciences, call that
	2	morphology, like prefixes and suffixes and so forth. The
	3	way words are fit together in sentences we call sentex,
	4	the study of sentence structure. The way words mean we
	5	call semantics. Both the kind of meaning that exists in
	6	dictionaries and the kind of meaning that exists in
	7	context. Such as if you say it certainly is hot in here,
	8	somebody opens the window, then that phrase certainly or
	9	that expression it certainly is hot in here operates
	10	actually as a request even though you didn’t make a
	11	request, and that’s called meaning as well, but contextual
	12	meaning.
	13		And linguistics also works with discourse,
	14	that is units of language larger than a sentence, such as
	15	a conversation, an interview, a chapter of a book, an
	16	article, a letter. Anything that has a beginning and end
	17	that is larger than a sentence. These are the areas of
	18	linguistics which exist and which linguists analyze.
	19	Q	Tell us what your educational background is please,
	20	sir.
	21	A	I hold a Ph.D Degree from Case Western Reserve
	22	University in Cleveland, Ohio; a Master’s Degree from Kent
	23	State University; and a Bachelor’s Degree from Wheaton
	24	College in Illinois.
	25	Q	Doctor, have you had occasion to publish any books?

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	1	A	Yes. I have authored or edited some 23 books on
	2	linguistics.
	3	Q	Have you -- in addition to books, have you had
	4	occasion to publish any articles?
	5	A	Yes. I’ve published -- authored over 150 articles in
	6	various academic journals on linguistics.
	7	Q	Have you taught at universities or colleges other
	8	than Georgetown University?
	9	A	Yes. I’ve been at Georgetown for 22 years now, but
	10	before that I was at Michigan State University, and before
	11	that I was at Wheaton College in Illinois.
	12	Q	Have you ever had occasion to lecture at Harvard or
	13	Massachusetts Institute of Technology?
	14	A	Yes, I did.
	15	Q	Have you also lectured abroad?
	16	A	Yes. I have lectured abroad in many countries.
	17	Q	Okay. Can you tell us some of those please?
	18	A	Well, most recently was this summer in Finland, which
	19	was my second invitation to lecture in Finland. I’ve also
	20	lectured in Sweden, Germany, England, Belgium, France,
	21	Italy, and various countries of South America but
	22	particularly the Andean countries of Peru and Ecuador,
	23	Bolivia, and in Southeast Asia. Mostly in Australia but
	24	also in Hong Kong and as far north as Japan and in North
	25	Africa, particularly Egypt and Saudi Arabia.
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	1	Q	Have you had occasion, doctor, to be affiliated with
	2	any corporations in your field as a linguist?
	3	A	Yes. I was advisor, consultant advisor to the Xerox
	4	corporation for a number of years on matters of literacy,
	5	writing, reading and dictionaries. They published a
	6	dictionary. I also was a consultant advisor to Science
	7	Research Associates in Chicago. And I’m not quite sure if
	8	this is industry or not, but with the Social Security
	9	Administration, which the main office is in Baltimore,
	10	Maryland, on matters involving the problems that they were
	11	having with clear writing, the letters that they send out
	12	to the millions of people who receive social security.
	13	They had received so many complaints they decided to do
	14	something about it. And I worked with them for two years
	15	to improve the writing. I hope it improved some..
	16	Q	Have you had occasion to lecture to the Drug
	17	Enforcement Administration?
	18	A	Yes. Just this summer I was asked by the Department
	19	of Justice to provide training to undercover DEA agents,
	20	Drug Enforcement Agency agents in Miami, and I did so this
	21	summer.
	22	Q	When were you first contacted approximately in regard
	23	to this particular case?
	24	A	I believe it was toward the end of April.
	25	Q	Have you testified before, doctor?
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	1	A	Yes, I have.
	2	Q	And can you tell us the states in which you’ve
	3	testified?
	4	A	Oh, I’ve testified in Florida, in Georgia, South
	5	Carolina, Maryland, New Jersey, in Ohio, in -- let me
	6	think. Texas. Several times in Oklahoma. Nevada,
	7	California, Minnesota and Alaska.
	8			MR. CARLSON: Your Honor, we’d ask the
	9	court recognize Dr. Shuy as an expert in the field of
	10	linguistics and communications.
	11			THE COURT: So reflect.
	12	Q	(By Mr. Carlson) When you were first contacted in
	13	regard to this particular case, who contacted you?
	14	A	You did, Mr. Carlson.
	15	Q	And we submitted certain information to you, is that
	16	correct?
	17	A	That’s correct.
	18	Q	Were you submitted to you, sir, a tape recording
	19	which was designated as a 911 call?
	20	A	Yes.
	21	Q	And what, if anything, did you do with regard to that
	22	particular 911 call?
	23	A	Well, I listened to it over and over again on my
	24	various tape recording equipment and prepared a transcript
	25	of that 911 call.
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	1	Q	Can you tell us, sir, what type of equipment you use
	2	when you listen to a tape recording of that nature?
	3	A	Yes. I have several very high quality tape recorders
	4	and I use very high quality Nakamichi earphones as well.
	5	One of my tape recorders is a CR-7, a very expensive
	6	machine which has wonderful fidelity. Another is a
	7	Beocord 9000 machine which is produced by Bang and
	8	Olufsen. And another is a Maranz, a German machine, which
	9	has a particular capacity of being able to slow down or
	10	speed up speech so you can listen over and over again to
	11	difficult passages. Several of the machines have real or
	12	actual time markers on them so you can time the distance,
	13	the time -- they have time lapse marks on the tape from
	14	beginning to end which is a very useful way of tracking
	15	that on the tape. And I use Nakamichi earphones in no
	16	matter which machine I use.
	17	Q	And from those tape recordings or the tape recording
	18	of the 911 call did you prepare a transcript?
	19	A	Yes, I did.
	20	Q	And did you have occasion to compare that transcript
	21	to the transcript furnished by the state?
	22	A	Yes. I remember that. I was not given a transcript
	23	by the state at first so I made my own transcript first
	24	and then I was given a transcript which was prepared by
	25	the state and I did make a comparison, yes.
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	1	Q	And were we able or were you able to find additional
	2	statements on the transcript which you prepared or in the
	3	tape that were not included within the transcript of the
	4	state?
	5	A	Yes. I was able to pull out some additional words
	6	and sentences. Particularly at places where there is
	7	overlapped speech. That is where you hear two things at
	8	the same time. When that happens it’s difficult to make a
	9	transcript and I can understand why people would have
	10	difficulty doing that. But a trained listener and
	11	transcript preparer can track his listening to one speech
	12	at a time and pull out both sides of that.
	13	Q	Are you trained in that particular regard, doctor?
	14	A	Yes, I am.
	15			MR. CARLSON: Your Honor, at this time --
	16	Q	(By Mr. Carlson) One additional question. Did the
	17	tape that you were listening to, doctor, was that an
	18	enhanced version of the 911 call?
	19	A	Yes, it was.
	20			MR. CARLSON: Your Honor, at this time we
	21	would ask the enhanced copy of the 911 call be played and
	22	that we be allowed to distribute the transcripts that have
	23	been prepared by Dr. Shuy to the jury for listening.
	24			THE COURT: That’s not been marked, has it?
	25	Q	(By Mr. Carlson) Doctor, I’ll hand you what’s been
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	1	marked as Defendant’s Exhibit 16.
	2			THE COURT: Just a second.
	3	Q	(By Mr. Carlson) Doctor, I’ll hand you what’s been
	4	marked as Defendant’s Exhibit 16, and ask you if you can
	5	identify that for us, please.
	6	A	Yes. This is a transcript which I prepared.
	7	Q	And that’s a transcript of the 911 call?
	8	A	Of the 911 call, yes.
	9			MR. CARLSON: Your Honor, at this time we’d
	10	like to have the 911 call played over the speaker system
	11	which we’ve set up and that we be allowed to distribute
	12	out copies to the jury so they can follow along.
	13			THE COURT: Defendant’s 16 allowed. Go
	14	ahead and distribute those individual copies.
	15		(AT THIS TIME DEFENDANT’S EXHIBIT NO. 12
	16		WAS PLAYED FOR THE JURY.)
	17	Q	(By Mr. Carlson) Mr. Shuy, did you have occasion to
	18	analyze the 911 call made by Steve Allen from a linguistic
	19	and communication standpoint?
	20	A	Yes, I did.
	21	Q	And can you tell the ladies and gentlemen how you do
	22	that?
	23	A	Well, what one does is do an analysis of the verbal
	24	and speech sounds which are not normally considered to be
	25	words, but nevertheless are mechanisms which result from
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	1	the use of the speech mechanisms -- sounds which result
	2	from the speech mechanisms. I’m sorry. That is heavy
	3	breathing, sighing, sobbing. Things of that sort are made
	4	by the speech mechanisms and are subject to the same sort
	5	of analysis that phonetic analysis can make of speech
	6	sounds like P’s and T’s and F’s and 0’s and so forth.
	7		Having made -- having -- Utilizing that
	8	kind of analysis I was able to determine the extent to
	9	which Steve Allen was distressed or upset in that
	10	particular conversation.
	11	Q	And do you have an opinion, based upon your
	12	education, experience and expertise after having analyzed
	13	the 911 call from a linguistics and communications
	14	standpoint, as to Steve Allen’s -- I’ll use the word
	15	demeanor or his communication and linguistic communication
	16	on that particular call?
	17	A	Yes. It was very clear and it is my opinion, based
	18	on this analysis and my knowledge in the field, that Steve
	19	Allen was -- his demeanor was halting. There are times
	20	when he spoke very rapidly, very short sentences. Times
	21	when his voice broke and his voice cracked, his voice was
	22	-- had a pleading nature to it. To use a descriptive
	23	phrase it can be -- what I just said can be described --
	24	can be described using linguistic terminology but that
	25	would not be very clear. The result of which is that his
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	1	demeanor was that of a very disturbed upset man.
	2	Q	As a linguist and as a analyst, based upon your
	3	education, experience and training, do you have an opinion
	4	as to whether or not that particular nature of speech
	5	which you’ve heard on the 911 call was in any way staged?
	6	A	I have an opinion that it was not staged. Largely on
	7	the basis of the fact that when one stages emotions, and
	8	you can see this if you every go to a play, you overstage.
	9	That is, if you want to give the impression of fear you
	10	give a -- an acting version of fear which is much more
	11	than you would normally do when you’re fearful. It’s the
	12	cartoon characteristic. We all know that Bob Hopes’ nose
	13	does not look like a ski slope, but it’s drawn that way.
	14	It’s over emphasized the characteristic.
	15		Now, when people try to appear to be happy,
	16	sad, fearful or whatever emotions, as any actor will tell
	17	you and any phonetician will attest, you overdo it in
	18	order to achieve that affect. There’s no evidence of that
	19	being overdone in any case here. It was a very natural
	20	fear -- I’m sorry. Very natural demeanor and intonation
	21	of anguish and distress.
	22	Q	Is this a rather time consuming process, the analysis
	23	of the tape-recorded statement?
	24	A	Oh, yes. It’s a meticulous and time consuming
	25	process.

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	1	Q	Can you share with the ladies and gentlemen of the
	2	jury somewhat how you go about that?
	3	A	Yes. First of all I get out my tape recorder and put
	4	my earphones on and I sit and I listen and listen and
	5	listen and listen. I listen to parts of it, I listen to
	6	all of it. You’ve had a chance to listen to it once.
	7	I’ve listened to it many, many times. And you make the
	8	transcription. You check your transcription by listening
	9	to it again to make sure the transcription is accurate.
	10	You improve it several times before it finally gets to the
	11	stage where you say this is enough. But it is a very time
	12	consuming process.
	13	Q	Were you also furnished, Dr. Shuy, a copy of a
	14	interview which was taken between Steve Allen and Mr.
	15	Gardella?
	16	A	Yes, I was.
	17	Q	And what did you do with that particular tape
	18	recording?
	19	A	Well, first of all, I think I suggested that we --
	20	since that tape recording was of such poor quality, that
	21	we have it enhanced by a professional acoustic engineer so
	22	that we could determine whether or not we could hear it
	23	better having been enhanced in that way. That is a matter
	24	of -- I can’t explain what acoustic engineers do, but they
	25	make tapes easier to hear. Especially because of --
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	1	speech sounds are at the low end of the spectrum and you
	2	can eliminate sounds that are at other ends of the
	3	spectrum.
	4	Q	And did we do that with that particular tape?
	5	A	We did.
	6	Q	And did you have occasion to analyze that particular
	7	tape also linguistically and from a communications
	8	standpoint, doctor?
	9	A	Yes, I did.
	10	Q	Doctor, let me hand you what’s been marked
	11	Defendant’s Exhibit 17, and could you tell me what that
	12	is?
	13	A	Yes. This is the transcript of the enhanced tape
	14	which I was talking about of the taped interview between
	15	Stephen Allen and Steve Gardella on June 12th, 1990. This
	16	is a transcript which I prepared.
	17	Q	And did you use the same procedure on this particular
	18	tape that you used on the 911 call?
	19	A	Yes, I did.
	20			MR. CARLSON: Your Honor, we’d ask that
	21	designated portions of the Gardella and Steve Allen
	22	interview also be played for the jury.
	23			THE COURT: Approach the bench.
	24		(AN OFF-THE-RECORD DISCUSSION WAS HAD AT
	25		THE BENCH BETWEEN COURT AND COUNSEL.)
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	1			MR. CARLSON: Your Honor, as the court has
	2	ruled, we need to resubmit the transcript and that will be
	3	done in a few minutes with the help of the bailiff. So
	4	I’ll go ahead and proceed with Dr. Shuy’res testimony and
	5	come back to the Gardella interview --
	6			THE COURT: Thank you.
	7			MR. CARLSON: -- with the court’s
	8	permission.
	9			THE COURT: Yes.
	10	Q	(By Mr. Carlson) Doctor, was there other information
	11	that was furnished to you?
	12	A	Yes, there was.
	13	Q	And did you have occasion to analyze that particular
	14	information?
	15	A	Idid.
	16	Q	Would there -- are there certain charts which you
	17	have prepared that would aid you in your testimony in
	18	explaining it to the jury?
	19	A	Yes.
	20			MR. CARLSON: Okay. Your Honor, with the
	21	court’s permission, could Dr. Shuy step down and explain
	22	those to us, please?
	23			THE COURT: Go ahead.
	24	Q	(By Mr. Carlson) I might initially ask you, doctor,
	25	does the word discourse analysis have meaning to you as a
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	1	linguist?
	2	A	Yes. Discourse analysis I believe I tried to define
	3	earlier, but discourse analysis is the analysis of units
	4	of language larger than a sentence, such as a book, a
	5	chapter, a conversation, an interview. This very
	6	proceeding of court has a discourse structure to it.
	7		Linguists analyze these large chunks, and
	8	in doing so they follow procedures of discourse analysis
	9	-- normal discourse analysis, regular analytical
	10	procedures. One of which is to determine topics that are
	11	introduced in a conversation. That is, we introduce -- we
	12	all introduce topics in a conversation. That’s what keeps
	13	conversations together. But what you may not realize is
	14	if you can track and mark every topic that’s introduced in
	15	a conversation you’ll have tracked and marked the flow of
	16	the ideas that generate each person’s mind in that
	17	 conversation that influence them. It’s a sense of what
	18	they’re concerned about.
	19		Another analytical routine in discourse
	20	analysis is response strategy. That is, the strategies
	21	consciously or unconsciously -- probably mostly
	22	unconsciously since we use language so effectively. We’re
	23	use to it and we don’t stop and think about it as we use
	24	it. It’s a little bit like stopping and thinking about
	25	your feet when you’re walking. You would fall down if you
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	1	did that. So we don’t normally do that with language, but
	2	in terms of the responses we make to the topics of others
	3	we have a number of potential strategies available to us.
	4	Such as responding fully. If it happened to be a question
	5	we can give the answer, yes, no, Bolivia, 1492. Whatever
	6	the answer is. Or we can answer part of the question but
	7	not all of it or respond to part of the topic but not all
	8	of it. And I’m sure we’ve all been in a situation where
	9	somebody’s brought up a list of things and you only answer
	10	the most recent one, the last one on the list. And that
	11	recency principle is important in language because we do
	12	tend to respond to the most recent part of the question
	13	and leave out the rest of it.
	14		Another response strategy is to say uh-huh,
	15	okay, all right. These are called feedback markers, and
	16	particularly in telephone conversations unless you make
	17	enough noise like that once in a while the other person
	18	will say hello, are you there. In other words, we’re
	19	expected to make noise every once in a while or the other
	20	person worries whether we’re asleep or whether we’ve been
	21	disconnected. Uh-huh does not necessarily mean I agree.
	22	It could mean it if you really work at it, but typically
	23	it means keep going, I won’t interrupt you now. I have
	24	not fallen asleep. I am still here.
	25		We can also say nothing at all, if we want
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	1	to, although it’s very awkward if you say nothing at all
	2	to somebody else’s topic. But if that does happen it
	3	tends to be a very marked occasion. Or we can say -- or
	4	we can change the subject is another strategy we can have.
	5	If we don’t like the topic we can change it to whatever we
	6	want to. This is common in English usage. A common way
	7	of changing the subject is to say, not to change the
	8	subject. And then that, of course, changes the subject.
	9		Now, these are all response strategies.
	10	So, discourse analysis deals with topics, response
	11	strategies. It deals with the difference between reported
	12	speech and actual speech, It deals with interruptions.
	13	It deals with pause lengths and openings and closings in
	14	conversations. We deal with whatever structures
	15	conversation has.
	16	Q	Did you have occasion to analyze the information that
	17	was furnished to you from a linguistics standpoint in
	18	regard to discourse analysis?
	19	A	Yes, I did.
	20	Q	Would you tell us about that, please, doctor?
	21	A	All right. I need to get up. Sort of covered up the
	22	title here. One of the things that I just mentioned in
	23	discourse analysis list of analytical routines is the
	24	difference between speech and reported speech. That is,
	25	the difference between what somebody says and what other
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	1	people say you said.
	2		In other words, when you have a tape
	3	recording you can actually verify and validate -- you can
	4	be certain about the accuracy of what was said. So that
	5	when you have tape recordings here such as the 911 call,
	6	we have the exact words on that tape that we can go back
	7	and play over and over again and listen to and say, yes,
	8	that’s what he said.
	9		Now, when somebody else reports -- when
	10	somebody reports what is said later, they may or may not
	11	have that accurate. This has all happened to all of us
	12	where somebody said we said something and we didn’t say
	13	that at all. What we have here is a comparison of what
	14	Mr. Allen said with what others say he said. We have
	15	speech and reported speech. And on this particular chart
	16	we’re dealing only with the topic of the intruder.
	17		Now, there are many topics in that
	18	conversation -- in these conversations. That the intruder
	19	was one such topic and it was an important topic and so I
	20	pulled it out because of its importance for a microscopic
	21	look. And I put that on -- all of the things directly as
	22	they are on the tape. Remember this is from tape of what
	23	Mr. Allen said about the topic of the intruder. In the
	24	911 call first and then in the Gardella interview. This
	25	constitutes the body of knowledge.
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	1		First on the 911 call Mr. Allen said I saw
	2	somebody running through my backyard. He also said on
	3	that tape, when they started going around my house I
	4	called, unintelligible, and they’d gone. They’re
	5	unintelligible on that tape because of the multiple
	6	transmissions. Transmissions at the same time and so
	7	forth. Even the best of linguistics analysis cannot pull
	8	out the unintelligibles in some of these. Third, I saw
	9	one person and I think it was a male. Fourth, when he
	10	came out he was headed south. He saw me. He turned and
	11	went north. And then last, he turned around and went the
	12	other direction.
	13		Now, you just heard that tape of which all
	14	of these sentences occurred. And I believe I have them
	15	transcribed. On the Gardella interview at 12:25, some two
	16	hours and a half later, Steve Allen says, I was turning.
	17	My lights -- I caught somebody on my patio. These are all
	18	on the topic of the intruder. Second one, no bright
	19	clothing. I can’t even -- three dots means something else
	20	was said there that was not about the intruder. I can’t
	21	even tell you what race. And third, I don’t know what
	22	door -- I don’t know what door he came out of. And,
	23	fourth -- by the way, I should put the stress on where I
	24	believe he put it in that interview. I don’t know what
	25	door he came out of. The reason I think that’s important

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	1	is that he was asked by Gardella what door did he come out
	2	of, and the answer was, I don’t know what door he came out
	3	of. Fourth, he was on the patio, referring again to the
	4	intruder. He turned. He was headed south. He must have
	5	turned and went back the opposite direction.
	6		Now, this has basically three or four
	7	components to it. He saw somebody on the -- an area that
	8	could be designated as the patio; that person turned and
	9	went the opposite direction; that person was a male. What
	10	am I leaving out. I believe that’s it. The major points
	11	of this -- that Mr. Allen said.
	12		Now, this can be compared -- this was on
	13	the topic that we’re delaying so I’ll flip it over.
	14	Q	Okay.
	15	A	We compared that to what other witnesses say Mr.
	16	Allen said. Now, they report in different ways, either
	17	through testimony in preliminary hearing or in police
	18	reports. So I’ll mark each time. This is Miss Lippert’s
	19	testimony in the preliminary hearing. This is what Miss
	20	Lippert -- Lippert reports that Steve Allen said about the
	21	topic of the intruder. We’re still on that topic. Page
	22	34, he could only advise me that it was possibly a male,
	23	that he thought it was a male; page 35, he advised he ran
	24	across his backyard; page 35, he said he ran to the south
	25	and when he saw him he turned back to the north.

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	1	Now, on the quote there’s a circle around
	2	it because you will see that this aspect of Miss Lippert’s
	3	testimony is not found -- this topic is not found in
	4	anything that is in Mr. Allen’s words. So in the actual
	5	speech which we have here we have reported speech which
	6	does not relate to the actual speech. And I had to record
	7	it as a question answer because you would not get the gist
	8	of it otherwise.
	9		It begins with an answer which Miss Lippert
	10	is reading from a 911 call transcript. Not the one I
	11	prepared. He advises somebody ran out the back door, and
	12	the attorney at that point stops her and says, let’s stop
	13	right there. You dispatched somebody ran out the back
	14	door. At the time you had never been advised anybody ran
	15	out the back door, had you; answer, No, I had not;
	16	question, That was not what Mr. Allen described to you,
	17	was it; answer, No, it was not.
	18		Now, this is critical because Miss Lippert
	19	testified on her 911 call five times, I think, if you
	20	count them, mentioned that the intruder went out the back
	21	door; and here we have her saying in testimony that it was
	22	clear that she dispatched it even though Mr. Allen has not
	23	said it. So we can validate whether or not Mr. Allen had
	24	said it because she says here, no, he did not.
	25		Page 45 she said again -- that’s actually
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	1	the same page. He advised someone ran out the back door;
	2	page 62, then the question is, you’re saying you
	3	misinterpreted some things he said. Afterwards Miss
	4	Lippert responds correct. She does agree that she
	5	misinterpreted some things that Mr. Allen had said to her.
	6		So at this point we have some similarities
	7	to the primary data, that which is the tape. Linguists
	8	refer to two types of data, primary date, that which is
	9	verifiable. You can go back and look at it, feel it,
	10	touch it, look at it, smell it, whatever. Secondary data
	11	is talk about that primary data.
	12		In other words, in this case it would be
	13	talk about talk. This is the talk and this is talk about
	14	talk. So there are two items which are different to Miss
	15	Lippert’s testimony and ones which she admits are not in
	16	the actual call that Mr. Allen made to her in the 911
	17	call.
	18		Another of the witnesses was Mr. Otte. Mr.
	19	Otte’s report and Mr. Otte’s testimony. I have marked the
	20	pages of the testimony for validation. The report is
	21	short. Sort of odd to put page one for everything for
	22	everything or page two, but they’re all very easily
	23	findable.
	24		And in the Otte report about the topic of
	25	the intruder, Mr. Otte says, as Allen turned into his
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	1	driveway and his headlights flashed across the backyard
	2	area, he saw what he described as a movement on the patio.
	3	Another quote. He saw a person stop and change directions
	4	quickly. Still another quote. The person appeared to be
	5	headed south. Another quote. When his headlights flashed
	6	cross him he turned and proceeded north to northeast, but
	7	he ever saw them pass the edge of the house. Notice there
	8	are no red marks on the margin over here because
	9	everything that Mr. Otte said is verifiable from the
	10	primary data. There’s no new bits of information or no
	11	elaborated bit of information here.
	12		Page 144 Mr. Otte says -- in preliminary
	13	hearing testimony, Mr. Otte says, as he pulled in he saw a
	14	figure in the portion of the yard that would be the
	15	southeast portion of the residence in the yard. That’s
	16	consistent with the primary data.
	17		Page 144, he wasn’t specific as to exact
	18	location in that area. Only that he saw a figure.
	19	Consistent with the Allen data.
	20		Page 144 again. As he pulled in and as the
	21	headlights sweeped across that area, the figure appeared
	22	to change directions and head back north. Again, quite
	23	consistent with Mr. Allen’s own words on the tape.
	24		Page 145, he saw the figure and thought
	25	possibly it was heading south.
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	1		Page 145. But all he really noticed was
	2	the figure appeared to change directions and head north
	3	and it was out in the yard.
	4		There is nothing in Mr. Otte’s testimony or
	5	his report which is inconsistent with the words that Mr.
	6	Allen said in he 911 call. Factual data. Whatever it is
	7	you have.
	8		Mr. Grayson made a report and also gave
	9	testimony. Mr. Grayson said, he stated, quote, he ran
	10	that way, end quote. Allen then pointed in a northeast
	11	direction out to a vacant field. He stated, quote, I
	12	think he came through the back door. It was a mess back
	13	there and the television was also broken.
	14		Then Mr. Grayson says in his report, Allen
	15	said to Davis, he went through that door in there. Which
	16	is not in the primary data here, but I’ll come back to
	17	this. This is not an evaluation of it, it’s only saying
	18	we have stuff we can validate and we have stuff we can’t
	19	validate at that point.
	20		Mr. Grayson says, I saw someone at the
	21	corner of his residence as he pulled into the driveway.
	22	Mr. Grayson says, this person left, running in a
	23	northeasterly route.
	24		Now, in his testimony, preliminary hearing
	25	testimony, Mr. Grayson said these things. Page 73, he
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	1	pulled up into his driveway and shined his lights on the
	2	suspect, and he ran off in a northeasterly direction.
	3	Consistent.
	4		Page 75. He said he saw him with his
	5	headlights and took off in a northeasterly direction.
	6	Again consistent with what Allen said.
	7		But on page 79 we start getting a series of
	8	red marks. Mr. Grayson reports what Mr. Allen told Mr.
	9	Davis. This is the report of the report again. Quote, he
	10	ran in there, end quote, and pointed toward the den area.
	11	And I believe they’re referring to the -- family room and
	12	den are more or less the same thing here. So here’s a
	13	case of where Mr. Grayson says Mr. Allen told Mr. Davis,
	14	but in any case it’s not in the actual words that we have
	15	on the tape.
	16		Page 80. He said, I saw him. Now, this
	17	means Mr. Allen said I, Mr. Allen, saw him, the intruder.
	18	He ran that way through there, and pointed in that
	19	direction. 1, 2, 3, 4, 5, 6, 7, 8, 9 word quote.
	20		Page 106. Mr. Grayson said, but he stated
	21	to Lieutenant Davis -- again referring to a report of a
	22	report. He stated to Lieutenant Davis that he had seen
	23	the subject in his living room and that subject ran out
	24	through his living room area back door.
	25		Page 106. He said he saw him leave out
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	1	that way.
	2		Page 112. That time, that night he did.
	3	Now, I had to put what the question was in parenthesis to
	4	make some sense out of that because otherwise we’d have a
	5	lot of text. But what that really says is that time that
	6	night he did say that he say a person run out that door.
	7	So he’s repeating that he saw somebody run out that door.
	8		Page 112. That’s correct, that this is not
	9	in my report. That is Mr. Grayson admitting that the not
	10	running out -- seeing him run out the door was not in the
	11	report that he had made previously.
	12		Mr. Davis also wrote -- wrote a report and
	13	gave testimony -- preliminary hearing testimony. The
	14	first citation from Mr. Davis’s report here about the
	15	topic of the intruder is, he stated, quote, yes, he ran
	16	out the door in that room, end quote. Pointing to what
	17	appeared to be a den. Second, he saw the suspect on the
	18	patio on the east side of the house as he was first
	19	pulling into the driveway. Third, the suspect ran off in
	20	a northeasterly direction. The second two cites are
	21	consistent with what we have on the interviews and tape --
	22	911 and interview, but the first one is not. That’s where
	23	we’re back to the running out of the door again, which is
	24	not consistent with something in the primary data and
	25	we’ll have to account for that and will in a minute.
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	1		Davis’s testimony, page 124, and he said he
	2	went out that door right there, and he pointed towards the
	3	door that led to the back yard.
	4		Page 132. He told me that when he drove up
	5	he saw a subject standing in the corner of the house in
	6	the shadows and that he saw him as he pulled into the
	7	driveway with his lights. He saw him run north on the
	8	patio and across the yard. Where he saw the subject --
	9	southeast corner around the patio side. That’s consistent
	10	with Allen’s words.
	11		Page 133. I began to question the stories
	12	that I was given because I was told at one point that the
	13	subject exited the family room through the door which I
	14	found to be locked. It surprised me with the second story
	15	because I expected him to give me the same first story.
	16	It was different that the suspect was standing outside as
	17	he came up to the driveway and the fellow ran off to the
	18	north.
	19		The first story was that as he came into
	20	the kitchen he looked toward the family room. The suspect
	21	was standing in the family room and ran to the east and
	22	back out the door. It was two different stories. The --
	23	at the expense of perhaps confusing it even more, I think
	24	it should be clear that the first and second stories are a
	25	little muddy, but I think they can be clarified. Mr. Davis
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	1	came to the house after Mr. Grayson had come to the house,
	2	and he--
	3			MR. CORGAN: Excuse me. Judge, I’m going
	4	to object now to the witness explaining the chronology
	5	unless he was there. If he wants to talk about the
	6	testimony and his linguistic analysis of it that’s fine,
	7	but I’m going to object to the running commentary as to
	8	what he understood unless he was there and saw Mr. Grayson
	9	and Lieutenant Davis.
	10			MR. CARLSON: Let me see if I can clear it
	11	up with a question, Your Honor.
	12			THE COURT: Sustained.
	13	Q	(By Mr. Carlson) Doctor, from the reading of the
	14	transcript, were you able to determine which of the
	15	officers arrived first?
	16	A	Yes, sir.
	17	Q	Okay. Which officer arrived first?
	18	A	Officer Grayson.
	19	Q	And from reading of the transcript, you were -- were
	20	you to linguistically determine what, in your opinion,
	21	Officer Davis was stating with respect to this first and
	22	second story?
	23	A	Yes, sir.
	24	Q	And would you tell us what that is, doctor?
	25	A	Officer Grayson -- Officer Davis arrived shortly
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	1	after Officer Grayson, according to the reading of the
	2	transcript, and came into the kitchen area where Officer
	3	Grayson and Mr. Allen were standing. So that when he
	4	talks about second story -- first story. I’m sorry. When
	5	he talks about first story, it would be the story which he
	6	heard first or the time with which he was there inside the
	7	house were the context of that story included the open
	8	door, broken glass on the floor and the television set
	9	broken.
	10		The first topic that you would talk about
	11	would be the -- in the context of where you were. So when
	12	he hears a first story -- I’m not evaluating the story.
	13	I’m trying to help the jury to understand what first and
	14	second means here by the context of where he was. The
	15	second story he heard was the one about the outside
	16	running away to the -- changing directions and running
	17	away the opposite direction. But Mr. Davis is the only
	18	one that describes the story in this way and I thought it
	19	appropriate to at least explain that because when we see
	20	the next -- or chart forthcoming it will be the one that
	21	seems unusual in that regard.
	22		Davis continues his testimony on page 134.
	23	When I asked him if he had seen what happened he told me
	24	he saw the fellow in the den run out the east door exiting
	25	outside. Well, that has a circle, and we’ll come back.
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	1		Page 142. I was looking for anything that
	2	might go with the story that Mr. Allen had told me that
	3	somebody had run across the patio.
	4		Page 158. I asked him, did you see the
	5	suspect, and he said, quote, yes. He stood there in the
	6	door way and then ran out and went out that door, end
	7	quote. A rather longish quotation.
	8	Q	What, if any, significance does that have to you as a
	9	linguist, the fact that it’s a long quotation?
	10	A	Well, let’s count up words. One, two, three, four,
	11	five, six, seven, eight, nine, ten, eleven, twelve,
	12	thirteen, fourteen, fifteen, sixteen. Research and memory
	13	of sentences is that you can remember sentences seven
	14	words plus or minus two. It’s seven plus or minus two
	15	principle. That is you might remember a sentence of five
	16	words, nine words, within that range. That’s about the
	17	maximum number of words that you can recall, and this is
	18	born out in the testimony of translators and
	19	interpreters. Especially interpreters for sign language
	20	who trail three seconds what they hear before they start
	21	interpreting or they lose a number of words. It’s more
	22	than you can handle. Memory of 15 words or whatever is
	23	very difficult for somebody to recall.
	24		Page 160. Question: In your report Steve
	25	Allen never said that he saw this particular individual,
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	1	from looking at your report, run out, did he? Fair?
	2	Answer: That was the assumption on my part when he told me
	3	he ran out. I assumed he saw him. Now, there Mr. Davis
	4	is admitting that he’s assuming that Allen said that he
	5	ran out the door. I assume he saw him. But he agrees
	6	with the questioner that Steve Allen never said he saw
	7	him. The assumption that he ran out would be natural if
	8	you see a door open and something has happened.
	9			MR. CORGAN: Judge, again, I’m going to
	10	object to the witness qualifying testimony. If he wants
	11	to analyze it linguistically, that’s what he’s here for,
	12	but he’s going a little far.
	13			THE COURT: Sustained.
	14	Q	(By Mr. Carlson) Okay. Can you tell us further
	15	about your linguistic analysis of the information which
	16	was furnished to you, doctor?
	17	A	Yes. Yes. Presupposition is part of what we
	18	analyze, but I will go on.
	19		Page 168. When I asked across the room to
	20	him, did you see a suspect, he said, no, he ran out that
	21	door. Another contextual factor has been introduced here
	22	by this across the room. They were obviously on opposite
	23	sides of the room. I’ve been trying to set this in the
	24	context of inside the house.
	25		Page 169. After I said did you see the
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	1	suspect, he said, yeah, but it was too fast. I couldn’t
	2	describe him. He ran out that door. You can’t change my
	3	assumption that I thought he saw the guy run out the door.
	4	I think Mr. Davis must have misspoke himself there because
	5	1 believe it should be -- well, I can’t tell you what it
	6	should be but it makes no sense the way it is.
	7		Page 170. 1 get the story that as I came
	8	in the driveway, he ran down the patio. I’m assuming that
	9	when he tells me he ran around the corner that he ran
	10	around the patio.
	11		Page 172. I would agree -- and the topic
	12	here is that Iris plants were consistent with the
	13	direction that Steve Allen says the suspect took.	Some
	14	of the items on the list are marginal in terms of
	15	importance but have to be included because all of them
	16	relate to the topic of the intruder.
	17	Q	What does your next chart indicate, doctor?
	18	Q	Next chart is a summary of these comparisons between
	19	what Mr. Allen said, the primary data that the -- the
	20	speech as opposed to the reported speech.
	21	Q	What is the significance of the red?
	22	A	The red outlines the -- the red is a summary of this
	23	page over here. The subtopic of the topic of the
	24	intruder. The topic is the intruder, the subtopic of saw
	25	him on the patio. You’ll find that in Mr. Allen’s speech.
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	1	He turned and went the other way. You’ll find that in Mr.
	2	Allen’s speech. He never reached the side street. That
	3	will be in Mr. Allen’s speech. And he was male. That
	4	will be in Mr. Allen’s speech.
	5		Now, this is the verifiable -- this is the
	6	scientific verifiable part of this. The other witnesses,
	7	Miss Lippert, Mr. Grayson, Mr. Davis, Mr. Gardella and Mr.
	8	Otte, we want to see if they are consistently reporting
	9	the same thing or if anything is added that is not in Mr.
	10	Allen’s speech.
	11		Miss Lippert, Mr. Grayson, Mr. Davis,
	12	Gardella and Mr. Otte all report essentially the same
	13	thing, that Mr. Allen says that he saw the intruder on the
	14	patio. They may vary with the word patio to backyard or
	15	something like that, but the idea is there.
	16		Miss Lippert, Mr. Grayson, Mr. Davis, Mr.
	17	Gardella and Mr. Otte all report that Mr. Allen said that
	18	the intruder turned and went the other way in some words
	19	more or less like that.
	20		The subtopic he never reached the side
	21	street.  Mr. Davis, Mr. Gardella, Mr. Otte inform that.
	22	Mr. Grayson and Miss Lippert do not. In all fairness to
	23	Miss Lippert, I don’t think she -- I don’t think that had
	24	anything to do with the 911 conversation so she couldn’t
	25	very well have reported it since it was never reported to
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	1	her. It’s not clear why Mr. Grayson doesn’t report it in
	2	that he was around at the same time Mr. Davis, Mr.
	3	Gardella and Mr. Otte were, as I understand it, or in some
	4	reasonable amount of time.
	5		That the subject was male was reported by
	6	Miss Lippert and Gardella and in all fairness to the
	7	others, the pronoun was he. I’m sure even though they
	8	didn’t say male that they probably all thought he was
	9	male. I didn’t hear any discussion or see any discussion
	10	of it being female. I assume that was what they were
	11	believing.
	12		Her we have an all together different
	13	topic. The fact that it is in black instead of blue and
	14	not in a red box indicates that this is a subtopic of the
	15	intruder topic which was not from Mr. Allen’s own words.
	16	These topics were from the reported speech of the various
	17	witnesses.
	18		Standing in the family room is one that’s
	19	reported only by Mr. Davis. That is, the intruder was
	20	standing in the family room or Mr. Allen said that the
	21	intruder was standing in the family room.
	22		That the intruder ran out the back door was
	23	reported by Miss Lippert, Mr. Grayson and Mr. Davis, but
	24	not by Mr. Gardella and Mr. Otte. So these are the
	25	abnormalities, ones for which we have no verification in
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	1	the primary data of Mr. Allen’s words. And when this
	2	occurs we try, as we do in any field, but in linguistics
	3	we try to figure out where did these come from. A
	4	possibility is, of course, that in that the running out
	5	the back door was introduced by Miss Lippert on the 913.
	6	conversation, and admittedly before -- and admittedly Mr.
	7	Allen hadn’t said it from her testimony -- from
	8	preliminary hearing testimony, that this went out on the
	9	911 radio and was picked up by Mr. Grayson, Charlie 34,
	10	and Mr. Davis, Charlie 1.
	11	Q	What significance does that have, the fact that it
	12	goes out over the air incorrectly, to you as a
	13	communications specialist and as a linguist?
	14	A	Well, when you hear something, you have no reason to
	15	believe it’s not true. You believe it is true. And Miss
	16	Lippert said it not once but several times going out the
	17	back door over the air, and if you hear it over and over
	18	again you can easily believe that that is indeed the case,
	19	that that is what happened. That fact is an essential
	20	principle of propaganda. If you repeat it often enough
	21	people will believe it.
	22		Now, I don’t mean to apply any intentions
	23	here that she was doing it on purpose. I don’t believe it
	24	was at all. But it did happen over and over again and the
	25	three people most affected by it were the ones involved in
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	1	sending and receiving, immediately hearing this message.
	2	Mr. Gardella, Mr. Otte. I don’t know whether they heard
	3	the tape or not. I suppose you could ask them, but they
	4	certainly didn’t report that.
	5	Q	You said Mr. Otte. Do you mean Mr. Davis?
	6	A	I’m sorry. Well, Mr. Gardella and Mr. Otte did not
	7	report that so I don’t know whether they heard it or not.
	8	But they certainly didn’t report it. But we know that the
	9	context, the timing of approximately five minutes
	10	separates the hearing and sending of these three people of
	11	someone going out the back door, which was uttered, to my
	12	count, five times on the 911 conversation. Enough to
	13	solidify and memorialize and set it in the minds of Mr.
	14	Grayson and Mr. Davis to the extent that they actually
	15	believe what was said. And remembering later on they
	16	could actually remember it that way. That is a
	17	hypothesis. I can’t prove that that’s the case, but
	18	that’s what we do in linguistics. We try to find reasons
	19	for exceptions. We try to find explanations. Why would
	20	one group of people say something and then somebody else
	21	not?
	22		And awhile ago when I was talking about Mr.
	23	Davis being in the family room or going into the kitchen
	24	area first instead of approaching it from the outside and
	25	getting the prospective of the outside, this could easily

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	1	contribute to his understanding that the door being open
	2	in the family room, the glass being on the floor, reading
	3	from the transcript of the preliminary hearing, that some
	4	discussion could have happened in which it is possible --
	5	this is a hypothesis again that linguists will produce to
	6	try to find origin of this. It’s quite possible that
	7	there was speculations to whether somebody had gone out
	8	that door. I don’t know. That certainly would contribute
	9	to the memorializing it as a fact and the memory by Mr.
	10	Davis, and so it were. And reported by nobody else.
	11	Q	Doctor, do you have an opinion, based upon your
	12	education, experience and training as a linguist and as a
	13	communications expert, as to why we would see these type
	14	inconsistencies?
	15	A	As to why we would what?
	16	Q	Why we observe and see these inconsistencies in the
	17	reporting by the officers.
	18	A	Well, one obvious reason is that they did not hear
	19	what they report that they heard, but heard something and
	20	thought it was that. I mean, it’s quite conceivable that
	21	you heard a hypothetical or conditional. Like it could
	22	have been he might have gone out that door and you hear it
	23	as he went out that door. Or we do hear regularly -- it’s
	24	a hearing problem, largely a phonetic one. If you say I
	25	can come tomorrow and -- can you hear the difference
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	1	between I can’t come tomorrow and I can come tomorrow?
	2		I was involved in a case in Nevada once
	3	where the whole issue was on whether the man said I would
	4	take a bribe, wouldn’t you, or I wouldn’t take a bribe,
	5	would you. It was uttered in a restaurant so fast that
	6	the two parties in the court case heard it quite
	7	differently. Regularly negatives and positives are
	8	confused. Regularly modals, that is can and can’t, would
	9	and wouldn’t, are confused. It is a possibility that that
	10	is the case here.
	11			MR. CARLSON: Your Honor, we now have the
	12	transcript prepared on the part of the Gardella interview
	13	and I would like to, with the court’s permission, play
	14	that and distribute this transcript to the jury.
	15	Q	(By Mr. Carlson) Doctor, do you have an opinion with
	16	regard to this particular case, based upon linguistics and
	17	communications, as to whether or not the contradictions in
	18	this particular case deals specifically with the intruder
	19	issue?
	20	A	Yes, I do.
	21	Q	Okay. Could you tell us what that particular opinion
	22	is, sir?
	23	A	Yes. I believe that there is a -- an inconsistency
	24	in the issue related to the intruder. That is marked by
	25	the occurrence of different subtopics of intruder in the
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	1	reported speech of some of the witnesses, but not others.
	2	And there are reasonable hypotheses to support the reasons
	3	for those subtopics being generated by something other
	4	than the speech of Mr. Allen.
	5	Q	Do you have an opinion, based upon your education,
	6	experience and training, doctor, as a linguist and
	7	communications expert, as to the reliability of the
	8	secondary information as compared with the primary
	9	information?
	10	A	Well, there is a test of the reliability. One, of
	11	course, is the relationship to the primary data, but
	12	another test of the reliability I have noted on the next
	13	chart.
	14	Q	Okay.
	15	A	Because reported speech involves recall, involves
	16	memory. It puts the burden on the person reporting the
	17	speech to have good memory or good recall. We cannot
	18	determine the extent to which the various witnesses
	19	recalled everything, but we can get some clues to their
	20	ability to recall from their own statements in the
	21	testimony, preliminary hearing testimony, where they
	22	themselves said I recall or I don’t recall.
	23		In this case this -- this is a chart of Mr.
	24	Grayson’s inability to recall. It says Grayson can’t
	25	recall, and the instances of that which occur in his

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	1	preliminary hearing testimony. Is Mr. Grayson a person
	2	with a good memory is the issue.
	3		Page 100. How long before -- I’m sorry. He
	4	can’t recall, page 100, how long before emergency medical
	5	team got there; page 106, he can’t recall where the spot
	6	of blood was on the television set; page 73, he can’t
	7	recall whether the child was in the green or the blue car;
	8	page 83, he can’t recall what Steve said when he was
	9	babbling; page 89, he can’t recall whether the room had a
	10	fireplace; page 91, he can’t recall whether the towels
	11	were cloth or paper; page 93, he can’t recall the length
	12	of time the ambulance people arrived after the fire people
	13	arrived; page 94, he can’t recall how many ambulance
	14	people came; page 94 again, he can’t recall whether the
	15	ambulance people came in through via the garage; page 95,
	16	he can’t recall whether the washer and dryer were in the
	17	utility room; page 96, he can’t recall how far the blood
	18	went beyond her head; page 96, he can’t recall where Davis
	19	was while he talked with Steve; page 97, he can’t recall
	20	whether the fire people had blood on their shoes; page 97,
	21	he can’t recall whether something was put down in the
	22	blood; page 100, he can’t recall how many officers arrived
	23	before Mason; page 101, he can’t recall where his field
	24	notes are not; page 103, he can’t recall who the ranking
	25	man was on the shift; page 104, he can’t recall at what
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	1	point Mason arrived in relation to the ambulance and fire
	2	people; page 109, he can’t recall what his field notes
	3	say; page 109, he can’t recall how many pages of field
	4	notes he took; page 111, he can’t recall how long a
	5	training period he had for securing a scene; page 111, he
	6	can’t recall whether he was given a manual at the police
	7	academy about securing the scene.
	8		These are all coronary evidence of Mr.
	9	Grayson’s ability to recall which could influence our
	10	interpretation of whether his recall of the reported
	11	speech was accurate or not.
	12		Mr. Davis, there’s a chart for him as well.
	13	Mr. Davis can’ret recall, page 122, how many tracks were in
	14	the blood; page 158, Mr. Davis can’t recall his exact
	15	words to Allen. Did you see -- when he said did you see
	16	the suspect; page 159, can’t recall whether one or two
	17	styrofoam cups were on the car; page 163, he can’t recall
	18	whether lights were on outside the house when he arrived;
	19	page 163, can’t recall where the small dot of blood was on
	20	the TV screen; page 165, he can’t recall whether the
	21	firemen or ambulance people arrived first; page 174, he
	22	can’t recall how the cyclone fence was bent over; page
	23	178, he can’t recall how he made his report, long-hand or
	24	dictated; page 181, he can’t recall here the phone was
	25	located; page 182, he can’t recall whether bloody
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	1	footprints were around the bar area.
	2	Q	Does that complete, doctor, your chart analysis of
	3	the information that was submitted to you?
	4	A	Not quite.
	5	Q	Okay.
	6	A	Because if we have the ability to remember we also
	7	must have the ability to be consistent, and if the
	8	characteristics of consistency are not found in the people
	9	who are making the reports -- doing the reported speech,
	10	then we also have a problem.
	11		So I look for, as any linguist would, in
	12	the data, evidences of inconsistency in the speech of the
	13	speakers to see if they were inconsistent about anything
	14	which will give us some clue of their potential
	15	inconsistency on the topic at issue here, namely the
	16	intruder.
	17		And here we have evidence of inconsistency
	18	in Mr. Davis’s testimony. On his preliminary hearing
	19	testimony, page 185:
	20		QUESTION:	So you’re telling me that the
	21		light was on or off?
	22		ANSWER: 	f f.
	23	Page 186:	
	24		QUESTION:	Now, are you sure that the light
	25		in the family room was off?
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	1		ANSWER:	I don’t know.
	2		Now, you could say it’s a changed answer,
	3	an enlightened answer perhaps, no pun intended, one that
	4	has increased over time, but it is not consistent with the
	5	first answer and it’s only one page off.
	6		The same could be said on the topic of
	7	whether or not Steve Allen was calm. Miss Lippert’s
	8	testimony was, on page 25, he was very calm; page 26, the
	9	subject was very calm; page 43, calm; page 46, yes, he was
	10	still calm.
	11		But in the Davis report, Grayson report,
	12	Gardella report and the preliminary hearing testimony of
	13	Mr. Davis and Mr. Grayson we see quite a different picture
	14	here. Mr. Davis reports that Mr. Allen was very shaken.
	15	He says, in an attempt to console RP, which is reporting
	16	person, I think. Obviously if you are trying to console
	17	him you believe that he needs consolation and if he needs
	18	consolation he was hardly calm.
	19		Davis then says, in an attempt to calm him.
	20	Well, if you’re trying to calm him that is a linguistic
	21	indication that you are not calm or he is not calm or he
	22	wouldn’t be trying to calm him.
	23		Grayson’s report. Grayson says, Allen
	24	began to cry and then he began to cry in another place.
	25	Obviously hardly evidence of calmness.
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	1		In the Gardella report Mr. Gardella says
	2	while crying Mr. Allen did so and so. Obviously not
	3	evidence of calmness.
	4		In Mr. Davis’s testimony, page 127, Mr.
	5	Davis says he was trying to console him. Obviously needed
	6	consolation. Page 169, he was in a daze; page 169, in
	7	shock.
	8		Now, if that means calm that’s a different
	9	kind of calm, I believe, but as a lexicographer I do not
	10	define calm as in a daze. That’s more of a psychological
	11	state.	
	12		Mr. Grayson’s testimony, page 82, Mr.
	13	Grayson says he tried to calm him down. Well, obviously
	14	if you try to calm somebody down they are not calm or you
	15	wouldn’t try. Page 82, Mr. Grayson says he got very
	16	upset; page 82, he just babbled on; page 84, he got upset.
	17			MR. CARLSON:	Your Honor, we’d move to play
	18	the Gardella interview at this point in time.
	19			(WHILE DEFENDANT’S EXHIBIT 13 WAS PLAYING A
	20			JUROR INTERRUPTS WITH THE FOLLOWING:)
	21			JUROR:	Your Honor, I’m all messed up. I
	22	don’t know where we’re at.
	23			MR. CARLSON:	Looks like we might have part
	24	of the first tape in here, Your Honor. Your Honor, I’ll
	25	make this suggestion. Let’s go ahead and finish with Dr.
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	1	Shuy’s testimony and we can —- I can check the transcript
	2	while counsel’s cross-examining Dr. Shuy and see if we can
	3	get it corrected and play the tape and transcripts first
	4	thing in the morning after cross-examination. Would that
	5	work for the court?
	6			THE COURT: Well, if they’re incorrect
	7	versions go ahead and pick them back up to make sure -- I
	8	thought we had correct versions.
	9			MR. CORGAN: Your Honor, might we approach
	10	the bench, please?
	11		(AN OFF-THE-RECORD DISCUSSION WAS HAD.)
	12			THE COURT: We’ve got a problem and we may
	13	need some changes that counsel hadn’t anticipated. Let’s
	14	take a recess. We’re going to be here awhile so if you
	15	need to make any calls or anything. We’re going to try
	16	and get through and accommodate the witness that’s here
	17	from out-of-state and get him done tonight.
	18		(A BRIEF RECESS WAS HAD. AFTER WHICH THE
	19		FOLLOWING PROCEEDINGS WERE HAD, ALL
	20		PARTIES AND THE JURY BEING PRESENT, IN
	21		OPEN COURT:)
	22			THE COURT: All right. We’ll show the
	23	jury’s all back present. Go ahead, Mr. Carlson.
	24	(DEFENDANT’S EXHIBIT NO. 13 WAS PLAYED FOR THE JURY.)
	25			MR. CARLSON: Your Honor, we would move the

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	1	admission of Defendant’s Exhibit No. 17.
	2			THE COURT: 17 allowed.
	3	Q	(By Mr. Carlson) Dr. Shuy, did you have a chance to
	4	analyze the Gardella interview with Steve Allen from a
	5	linguistics and communications standpoint?
	6	A	Yes, I did.
	7	Q	And what opinion or do you have an opinion with
	8	regard to Steve Allen’s communication and his linguist
	9	which he used as to his demeanor --
	10	A	Yes.
	11	Q	-- in his statement?
	12	A	Sorry. Yes.
	13	Q	Okay. And tell the ladies and gentlemen of the jury
	14	what that opinion is and on what you base it?
	15	A	Well, based on the tone of voice, the cracking of
	16	voice, the type of pitch and pausing as well as the
	17	sniffing and sobs and what appeared to be outright crying
	18	on that -- in that conversation, it is clear that Steve
	19	Allen, through most of the conversation, much of the
	20	conversation, is quite disturbed, distressed and upset.
	21	He manages to compose himself somewhat in order to answer
	22	questions at various times and then you can see,
	23	particularly right at the beginning of that particular
	24	tape, considerable distress on his part, which has the
	25	same -- uses the speech mechanisms to produce the sounds
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	1	of language that we call language are used to produce the
	2	sighs and sobs and sniffs, and he does produce those.
	3	Q	Doctor, are you compensated for your time for
	4	appearing here today?
	5	A	Yes.
	6	Q	And are you also compensated for your time on the
	7	work that you have done in regard to this particular case?
	8	A	Yes.
	9	Q	Okay. And how do you charge in regard to this
	10	particular case?
	11	A	I charge the standard fee to any case, which is $125
	12	an hour.
	13	Q	And do you just keep track of the time that you work
	14	on the case?
	15	A	Yes, I do. And I bill it to the nearest quarter hour
	16	and I bill once a month.
	17	Q	Have you billed me so far in regard to this
	18	particular case?
	19	A	Yes.
	20	Q	Okay. And can you tell the ladies and gentlemen of
	21	the jury what you billed me thus far?
	22	A	It was for 15 hours or I believe sixteen hundred and
	23	perhaps twenty-five dollars. I don’t remember exactly.
	24	Something of that sort.
	25			MR. CARLSON:	Thank you, doctor. Your
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	1	witness.
	2	----------------------------------------------------------------------
	3	                  CROSS-EXAMINATION
	4	BY MR. CORGAN:
	5	Q	I’ve been dying to ask you this question as I
	6	listened to all your activities and involvement, but how
	7	in the world do you ever have time to teach?
	8	A	Well, not only that but I was also chairman of the
	9	department for the past three years. I work hard.
	10	Q	Busy, busy man.
	11	A	Yeah.
	12	Q	Doctor, let me ask you a few questions about your 911
	13	transcript.
	14	A	All right.
	15	Q	And I don’t think I really have any questions, but
	16	let me find it. Here it is. Defendant’s Exhibit 16.
	17	A	All right.
	18	Q	And I think you’ve seen what you characterize as the
	19	government’s version.
	20	A	Yes. Some time ago, yes.
	21	Q	I think, and I’m not sure, but we had a K-Mart or
	22	Wal-Mart or some kind of tape recorder that we used when
	23	we made our tape. And really, doctor, for all intensive
	24	purposes Terri Lippert got most of the words down, didn’t
	25	she?
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	1	A	She got a good many of them.
	2	Q	Most of the stuff that she missed would, oh, be like
	3	maybe the firemen in the background or radio transmission
	4	of an officer, but as far as communications between
	5	herself and Steve Allen, I think I saw maybe, oh, a couple
	6	words difference where she might have missed a sentence or
	7	two.	 Is that about right?
	8	A	I couldn’t tell you without reexamining the original
	9	transcript. I haven’t looked at what I have characterized
	10	as the government’s transcript for some time.
	11	Q	Well, let me give that to you for a second.
	12	A	Okay.
	13	Q	And have you look over that.
	14	A	Sure.
	15	Q	And point out to me -- I’ll give you a few minutes
	16	there -- any real discrepancies you find.
	17	A	Shall I just talk or --
	18	Q	Probably it would be easier as you go through just to
	19	tell us.
	20	A	I can’t mark on anything so I’ll have to -- I can’t
	21	keep track of it unless I do that.
	22	Q	Go ahead and mark on mine if that would help.
	23	A	On this one? Sure. Okay. I’m doing it page by
	24	page.
	25	Q	Just as you find differences why don’t you relate to

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	1	us.
	2	A	Okay. The word “hurry” is not on Miss Lippert’s
	3	transcript in Mr. Allen’s second turn of talk. I’m at
	4	1808 Jefferson Road, hurry, and the heavy breathing that
	5	precedes it. It would be more efficient if I took my copy
	6	of the original and which I’ve written on and I can find
	7	it and save us time.
	8	Q	Do you have that with you?
	9	A	Yeah, in my briefcase.
	10	Q	That would be fine. Why don’t you --
	11	A	That would save us some time. I think I have it.
	12	I’m sorry. Did you take back the one that you had.
	13	Q	I believe it’s to your right, or do you need mine
	14	again?
	15	A	Yeah. Well, the one that is Miss Lipperts. I want
	16	to make sure it’s the same as the one I have. Okay. It
	17	is.
	18	Q	Okay. We’re clicking.
	19	A	Yeah. Okay. All right. The second dispatcher,
	20	what’s your problem is what’s the problem. The second
	21	Allen, I found my wife as I got my wife. My house had
	22	been broken. Okay. That’s all right. There’s no “and”
	23	at the end of that sentence. The next sentence begins
	24	with a new word -- new capital -- capital letter, my
	25	wife’s been beat. The word hurry in place of I need. She

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	1	transcribed I need for the word hurry, if she’s the one
	2	that did this. I’m doing that on the basis of what I
	3	understand you have told me that it was Miss Lippert that
	4	did this transcript.
	5	Q	Right. That’s what the testimony has been.
	6	A	Right. The one, two, three, fourth Allen down -- I
	7	don’t know how to describe these -- end of first line, she
	8	has run, it’s running. The next turn of talk dispatcher
	9	Charlie 34 should be Charlie twe--. She starts to say
	10	twenty, and it’s my duty as a transcriber to put down any
	11	parts of words or words I hear so it’s there. 34. And
	12	then hang on for a minute should be just hand on for a
	13	minute.
	14		Middle of page, Allen, please hurry, I need
	15	an ambulance, is I need an ambulance and, and he’s
	16	interrupted by dispatcher. The bottom of the page
	17	dispatcher -- there’s a turn of talk before the dispatcher
	18	between Charlie 1 or somebody. Charlie 1, 3, 0, and then
	19	some identified male answers with what sounded to me like
	20	Morris Alveno. In my transcript I put that in parenthesis
	21	because I had no idea what that means, but that’s what it
	22	sounded like
	23	Q	Let’s talk about that.
	24	A	Okay.
	25	Q	She has down what?
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	1	A	Nothing.
	2	Q	Well, doesn’t she have down Bartlesville Ambulance?
	3	Could what you heard as Morris Alveno be Bartlesville
	4	Ambulance?
	5	A	It was very difficult to hear that, yeah. Could be.
	6	I don’t know. Didn’t sound like Bartlesville Ambulance to
	7	me, but I couldn’t make any sense out of Morris Alveno so
	8	I put it in parenthesis as I did everything that was
	9	uncertain. I could have just said unintelligible there.
	10	Q	That would work within the context though where she
	11	has Bartlesville Ambulance that is about the same place
	12	where you have Morris Alveno.
	13	A	When people do this kind of work the most difficult
	14	part of it is names. Names are always difficult to get,
	15	and so I will always rely on somebody local for that.
	16	It’s quite possible that it’s Bartlesville Ambulance. I
	17	don’t --
	18	Q	Okay. And that would fit within the context, right,
	19	as far as where you have Morris Alveno she has
	20	Bartlesville Ambulance?
	21	A	Yes.
	22	Q	Okay. Please go on.
	23	A	Well, there’s a turn of talk after that, after --
	24	just before th	e bottom ambulance where Charlie 1 or
	25	somebody says advise, unintelligible, this call on
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	1	Jefferson. The ambulance says, okay, and that’s not on
	2	there. 1808 Jefferson. She’s put road down. There’s no
	3	road	on there.
	4		         Next page, dispatcher, right. I’ve got
	5	officers on the way. It’s just, right, and then somebody
	6	else says go ahead. You get me your figures, and
	7	dispatcher says, with that, officers on the way, and the
	8	ambulance says okay.
	9		         About in the middle of the page Allen says,
	10	no, ma’am, inaudible, is actually only when they started
	11	going around one way around my house. The next sentence,
	12	I pulled into the driveway and they’d gone is actually I
	13	pulled on Jefferson and they had gone. They went the
	14	other way, I guess. The “1 guess” is not in there. Is
	15	this	what you have in mind for me to be doing? It really
	16	seems --
	17	Q	Yes. I’m just --
	18	A	Okay. Are you being able to follow me?
	19	Q	I’m trying to.
	20	A	I’m wondering if I’m clear. That’s what I’m asking.
	21	Two	thirds of the way down, Allen, it was one person is
	22	actually I saw one person. I think it was a man is really
	23	I think it was a male. The third turn of talk from the
	24	bottom, Allen, it was dark. It did not show up well in my
	25	lights is actually, it was dark. I’d be -- it did not
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	1	show up well in my lights, turn through the, through that.
	2	There’s a couple of words missing there. Top of the next
	3	page. Allen’s yes is you asked if I have -- wait a
	4	minute. No, it is yes. I’m wrong. Sorry about that.
	5		Dispatcher, two thirds of the way down. He
	6	ran out the back door is actually advised he went out the
	7	back door. And then he turned, ran back south is dropped
	8	the word ran out. He turned back south. All I can advise
	9	is it was a male is actually all he can advise it’s a
	10	male. Dispatcher, how’s your wife been assaulted, has she
	11	been stabbed or what is actually -- sorry. How has your
	12	wife been assaulted, she been stabbed or what. Allen’s
	13	no, it’s her head, she’s beat is actually no, it’s her
	14	head, it’s been beat.
	15		And the last page, Charlie 1, okay, need
	16	you to call back and this is actually, yeah, I need you to
	17	call, need you all back in this area, back in here.
	18	Allen’s last bye is bye, bye, not bye. And there’s some
	19	talk on the tape after the end of this which my tape had
	20	on there and I transcribed. I have no idea what it means,
	21	but I transcribed it since it was there.
	22	Q	Okay. I guess you would agree with me though that
	23	really for all intensive purposes the transcript that Mrs.
	24	Lippert prepared is essentially the same as yours.
	25	A	No, I wouldn’t say the same. The same means to me

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	1	that -- considerably more than that distinction that we
	2	have here. Issues can be very important even though
	3	they’re very small. Whether a word is left out or not can
	4	be critical. Whether a word like can’t is transcribed as
	5	can can be critical.
	6		And I will not say that my tape--my
	7	transcript is perfect, because I think one can continue to
	8	find improvements in things, but I think my was farther,
	9	much father along than Miss Lippert’s in terms of
	10	accuracy; and that sounds arrogant perhaps, but I can’t
	11	help it. I believe that years of experience and lots of
	12	effort and better equipment you can get better tape
	13	transcripts.
	14	Q	Well, tell me the critical differences you find
	15	between your transcription and Miss Lippert’s.
	16	A	Well, again, if I had -- if you want a linguistic
	17	analysis I can go home tonight and do one, but I can make
	18	an accurate analysis and comparison of the two. The
	19	ascribing of numbers of turns, talk. Her transcript
	20	leaves out some of the people talking or identifies them
	21	differently unless I’m wrong.
	22	Q	Well --
	23	A	There’s no timing marks on hers. I can tell where w
	24	are with the timing. Exact minutes and seconds. Some of
	25	the words are different. Not all of the words. You know
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	1	if you want to say 90 percent similar, 90 percent similar
	2	probably.
	3	Q	Okay. So we see differences with she didn’t have
	4	the, what do you call, real time?
	5	A	Yes.
	6	Q	And she didn’t put in things like oh, heavy breathing
	7	or--
	8	A	The sounds that speech makes, yes.
	9	Q	And obviously probably she’s not trained to do that.
	10	I mean, she can get words, but whether she has the ear to
	11	pick up --
	12	A	It doesn’t take a great ear to hear heavy sighing and
	13	crying.
	14	Q	Okay. So you didn’t have any problem with that?
	15	A	No. It’s fairly obvious when it’s there.
	16	Q	Okay. Now, if I understand, doctor, as I’ve listened
	17	to your testimony today, what you’re in effect telling us
	18	is that what is said and recorded, as best we can hear on
	19	the two tape recordings, is different in some respects
	20	from either officers’ testimony, reports that we have
	21	through -- either through preliminary hearing or through
	22	their reports?
	23	A	That’s quite accurate, yes.
	24	Q	Now, you’re not telling us -- well, let me -- would
	25	you agree with me, and let me turn this over, on the
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	1	topic, and if you need it we’ve got an old wooden pointer
	2	here you can use. On the topic of intruder, and I think
	3	-- did you call that primary data?
	4	A	Yes.
	5	Q	Okay. And if I understand correctly the primary data
	6	is what’s on the tape?
	7	A	Anything that is verifiable. I mean, take it out of
	8	linguistics, take it out of language. Primary data is
	9	verifiable data. Data that you can go back to and check
	10	on and you can do it as many times as you want. In
	11	language that would mean it would be on tape or video
	12	tape.
	13	Q	The way you did that in this case is you listened to
	14	the tape, from that tape said this is the primary data
	15	that I have found?
	16	A	I don’t decide that it’s primary; it is primary by
	17	its very essence.
	18	Q	Well, but then you put these words out. I have heard
	19	these words and this is the primary data that’s reflected?
	20	A	No, all of the words on the tape are the primary
	21	data. The words that I’ve heard that I’ve outlined here
	22	are part of the primary data.
	23	Q	Okay. Okay. Let’s talk about part of the primary
	24	data and Allen’s words.
	25	A	Okay.
	
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	1	Q	Would you agree with me that his concern as he talked
	2	to the 911 operator is about what occurred outside the
	3	home?
	4	A	No, I wouldn’t agree to that.
	5	Q	You wouldn’t? Well, and maybe my question is not
	6	clear. But when we talk about the topic of the intruder,
	7	he says I saw somebody running through my backyard. Well,
	8	obviously we’re talking about outside there.
	9	A	Oh, okay. I thought you were saying that -- outside
	10	to mean that he wasn’t concerned about the condition of
	11	his wife when he was inside, and I wouldn’t agree to that.
	12	Q	No, I’m not suggesting that. But when we talk about
	13	the intruder, his, I guess, frame of reference from what
	14	we have is --
	15	A	From the outside.
	16	Q	-- all directed outside, is that correct?
	17	A	Yes.
	18	Q	Okay. So we don’t really have any primary data in
	19	the 911 call from Mr. Allen, do we?
	20	A	I wouldn’t say that.
	21	Q	Well, I said that wrong. We don’t have any primary
	22	data about inside from the 911 call from Mr. Allen?
	23	A	Well, I’ll check it again, but from his perspective
	24	of inside the house you mean?
	25	Q	Yes.

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	1	A	He’s describing the outside.
	2	Q	And, again, I’m talking about intruder, his
	3	description of the intruder.
	4	A	Oh, no. It was that he saw him outside..
	5	Q	Okay. So his prospective is outside.
	6	A	Exactly.
	7	Q	And when we talk about Gardella and that interview,
	8	again the prospective is outside.
	9	A	That’s right.
	10	Q	Now, it’s only when we start talking with Officer
	11	Davis, Officer Grayson that we see discussion about
	12	inside.
	13	A	That’s right.
	14	Q	Okay.
	15	A	Well, and the 911 report and testimony of Miss
	16	Lippert.
	17	Q	Okay. The incorrect information that she puts out?
	18	A	Right.
	19	Q	But that’s something she puts out; that’s not primary
	20	data that we can attribute to Mr. Allen.
	21	A	That’s true.
	22	Q	Okay. And I guess the difference then, it’s
	23	secondary data to Mr. Grayson and Mr. Davis because they
	24	don’t have a recording.
	25	A	Their report -- their report and their testimony is


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	1	in itself secondary data because there is no primary data
	2	that they have recorded, right.
	3	Q	And the only way we could get primary data frbm them
	4	is if they had had a tape recorder there actually taping
	5	their conversations with Mr. Allen?
	6	A	That’s probably true.
	7	Q	Okay. So, the best we can rely on as far as
	8	information from Mr. Grayson and Mr. Davis would be what
	9	is called this secondary data?
	10	A	Unless they tape record it.
	11	Q	But, I mean, we don’t have any suggestion that that
	12	happened, do we?
	13	A	I haven’t heard about it.
	14	Q	Okay.
	15	A	One gets primary data by tape recording.
	16	Q	All right. But -- so, the best we have from them in
	17	that respect would be the secondary data?
	18	A	That’s right.
	19	Q	Now, you’re not suggesting that those things were not
	20	said to them, are you?
	21	A	No.
	22	Q	Okay. You’re just saying that from your analysis you
	23	find other explanations for those?
	24	A	My analysis they don’t match what we do know about
	25	primary data and there are explanations that are possible
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	1	other than -- yes.
	2	Q	Okay. They don’t match what was said in the primary
	3	data with the outside perspective, do they?
	4	A	That’s true.
	5	Q	And I guess going along with that you’re not telling
	6	us, doctor, that you can make any determination as to why,
	7	from your analysis of the tapes, that Mr. Allen was
	8	distressed or upset?
	9	A	I’m not telling you why he was distressed or upset?
	10	Q	No.
	11	A	Is that what you’re asking me?
	12	Q	Right. You can’t tell us that, can you?
	13	A	I can tell you that he was -- his voice shows
	14	distress, yes.
	15	Q	But you don’t know why.
	16	A	Well, if you want me to guess I could guess, but his
	17	wife had just been killed, but the language doesn’t tell
	18	us that.
	19	Q	Okay. He’s upset. Why he’s upset we don’t really
	20	know. We can guess.
	21	A	Speech inflection does not tell you why.
	22	Q	Okay. As you listen to his speech and you look at
	23	his answers in regard to questions posed to him by the 911
	24	operator, Investigator Gardella, did you find his speech
	25	to be bazaar?
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	1	A	In the 911 it was not bazaar. In the Gardella
	2	interview it was occasionally strange. When asked a
	3	question he backs up and begins telling about something
	4	that wasn’t asked.
	5	Q	You didn’t find it to be babbling, did you?
	6	A	Not in the Gardella. Not in the -- neither of those,
	7	as a matter of fact.
	8	Q	Didn’t find it to be incoherent, did you?
	9	A	It came close in the Gardella at one point to being
	10	incoherent.
	11	Q	And he did appear to respond --
	12	A	Excuse me. In many places in the Gardella he was
	13	incoherent as a matter of fact. Crying, sobbing. That’s
	14	incoherence in some sense of the term.
	15	Q	Okay. So whenever he was crying or sobbing you
	16	equate that with incoherence?
	17	A	Well, when he makes a noise that I cannot understand
	18	and Mr. Gardella responds that’s okay, we’ll play it the
	19	way you are or something to that effect, that’s evidence
	20	by Mr. Gardella that he recognizes that Mr. Allen’s speech
	21	has not been normally produced and he’s under some kind of
	22	stress.
	23	Q	And from that then you assume or you draw the
	24	conclusion that he was incoherent?
	25	A	No, I just described Gardella’s conclusion. His
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	1	speech makes that conclusion. I can show you the passage
	2	if you like.
	3	Q	Are you talking about those instances where he says I
	4	understand?
	5	A	Well, he was more than that. It’s I understand and
	6	I’ll take you the way you are or something to that effect.
	7	My memory of the exact words is not great right here, but
	8	it was something to that effect.
	9	Q	And those indicated then --
	10	A	That he recognized that Allen’s demeanor was not --
	11	Allen had been apologizing for being incoherent or
	12	something to that effect. I don’t know what Allen said.
	13	Q	Again, whatever -- for whatever reason he was acting
	14	that way or -- I don’t mean acting. I’m not suggesting
	15	that he was putting on, but we don’t know why he responded
	16	that particular way, only that he responded in that way.
	17	Would you agree with that?
	18	A	Oh, I don’t think it takes much of an inference to
	19	figure out, but I would say again there’s nothing in the
	20	language itself that explains why the person is acting the
	21	way they are, but it does correlate with certain kinds of
	22	emotional states. But correlation is not causation, so I
	23	will not leap to that.
	24	Q	Let’s talk for a minute. I guess we just had it up
	25	there. Your chart on the right where we have the Lippert
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	1	testimony and then Davis report where we’re comparing -- I
	2	guess comparing calmness or lack of calmness.
	3	A	That’s correct.
	4	Q	Would that be a fair characterization of that?
	5	A	Yes.
	6	Q	Now, would you agree with me in making those
	7	conclusions that we would also have to look at the
	8	perspective of the person drawing the conclusion?
	9	A	Well, a person doesn’t talk without their
	10	perspective. So it’s hard to talk in somebody else’s
	11	perspective.
	12	Q	Well, you know from your examination of the
	13	preliminary hearing transcript that when Terri Lippert
	14	talked about calmness of Mr. Allen she was putting it in
	15	the context of other phone calls of this type and other
	16	emergencies of this type that --
	17	A	Oh, yes, I see what you’re saying. Yes, she did do
	18	that. Yes.
	19	Q	She qualified her perspective and said he was calm
	20	compared to these other things.
	21	A	I think she said that.
	22	Q	Okay. Now, as we look at Officer Davis ‘re s report,
	23	Officer Grayson’ s report and -- okay. That’s the two that
	24	we have. I think we have Officer Gardella there talking
	25	about crying and sobbing and those type things. We’re

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	1	talking about their perspective of observations they made
	2	at the time.
	3	A	Their perspective of Mr. Allen’s condition.
	4	Q	At that time?
	5	A	At that time.
	6	Q	Different times, different places?
	7	A	I don’t know when Davis is referring to, but I know
	8	he was there immediately, or almost immediately, after the
	9	911 call. I know Grayson was there almost immediately
	10	after the 911 call, so the difference in perspective that
	11	they may be reporting would be at most an hour from the
	12	time of the 911 call, depending upon what their memory is
	13	at the time they’re writing their statements. But it is
	14	within the relatively same frame work of time.
	15	Q	But Miss Lippert is giving a perspective on the time
	16	dealing with people that she’s dealt with on the phone;
	17	they’re giving us a perspective of someone there on the
	18	scene with the person?
	19	A	That’s correct.
	20	Q	Now, where is your chart that you talk about Miss
	21	Lippert’s testimony?
	22	A	Do you want me to get up?
	23	Q	All right. I didn’t understand the very bottom thin
	24	there where it says page 62, would you say you
	25	misinterpreted some things he said; answer, correct.
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	1	A	Uh-huh.
	2	Q	I don’t understand how that compares to the primary
	3	data on the 911 call?
	4	A	Well, it was clearly in reference to the two
	5	citations above it about her statement, erroneous
	6	statement that Allen had advised that somebody ran out the
	7	back door.
	8		There was some lengthy discussion between
	9	counsel and Miss Lippert where this was the conclusion
	10	concerning whether she was wrong or whether she thought
	11	she heard him or not, and she maintained, as I recall,
	12	that that was her interpretation of it and then finally
	13	counsel asked, would you say that you misinterpreted some
	14	things, and then she agree to that. It was all in
	15	reference to the running out the back door.
	16	Q	Okay. So it should go with the two above there?
	17	A	It’s all part of that, yeah.
	18	Q	And I--
	19	A	I hated to call it a disagreement because it only
	20	interprets the preceding two. I could put a circle around
	21	it, I suppose.
	22	Q	Actually she didn’t misinterpret, did she, she
	23	misstated?
	24	A	Well, that was in reference to a later -- it was
	25	another passage in the same 911 where she again mentions,
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	1	after he ran Out the back door, something, and Steve’s
	2	response contained a yes, which she interpreted to mean
	3	that Steve Allen agreed that the intruder had run out the
	4	back door where as it was a two part proposition in which
	5	Steve Allen was referring -- could have been referring, if
	6	he followed the rules of English discourse procedure,
	7	referring to the second portion of that two part utterance
	8	and not to the first.
	9	Q	Okay. And that’s where you’re talking about the --
	10	A	And then that was a misunderstanding.
	11	Q	That’s where you’re talking about the issue of
	12	primacy, is that right?
	13	A	Recency.
	14	Q	I’m sorry. Okay.
	15	A	The recency principle.
	16	Q	The recency. Okay. Recency means that if I ask and
	17	if she asked a compound question or two choices --
	18	A	Or three or four.
	19	Q	And I say yes to both, your recency principle means
	20	that I’m referring to the last?
	21	A	Well, it’s a little more complicated than that. If,
	22	for example, I say three things in a row to you or you ask
	23	me three questions in a row, and if counsel does not
	24	object to your asking multiple questions, I -- and I
	25	respond, I am most likely to respond to the most recent
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	1	one or the last one. I am most likely to ignore the first
	2	and second question of that three part set of questions.
	3	It’s just a simple principle of language that if you make
	4	three statements, if you ask three questions, if you do
	5	two or three or six, people tend to respond to the most
	6	recent one. You ask somebody three questions on paper and
	7	they’ll answer the most recent one.
	8	Q	Now, linguistically do you find that to be true in
	9	what I’ll call other than normal situations?
	10	A	I wouldn’t have any reason to believe that it
	11	wouldn’t be true in other than normal situations.
	12	Q	But I mean, if we’re reacting to a startling event,
	13	traumatic event, you wouldn’t expect, through recency
	14	principle, to apply that instance just like we would if
	15	you and I talk together here?
	16	A	If anything there would even be less attention to the
	17	question or the proposition in an emergency situation,
	18	because in an emergency situation a person is thinking of
	19	themselves and their own problem and not of the comments
	20	or questions of somebody else.
	21		So it is not surprising if somebody asks
	22	you three questions and you’re in an emergency situation
	23	and you don’t answer any of them. You’re not attending to
	24	the other person’s perspective. I mean, talking about
	25	emergency situations, that tendency is as much likely to
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	1	be true as if -- as the recency principle.
	2	Q	Now, again, to make sure I’m clear, you’re not
	3	telling us that when Officer Davis testified about
	4	conversations between the defendant and himself about
	5	seeing someone in the living room or conversations with
	6	Officer Grayson about the word “saw” being used, you’re
	7	not telling us that the defendant didn’t say those things?
	8	A	No, I couldn’t know that. I’m not saying that.
	9	Q	Okay. In fact, I think you would agree with me that
	10	certainly the defendant might say one thing to Miss
	11	Lippert and other things to other people depending on the
	12	circumstances and context?
	13	A	It’s possible. It could have happened.
	14	Q	And we do see that.
	15	A	Yes.
	16	Q	Throughout our various analysis, don’t we?
	17	A	There’s some differences to different people.
	18	Q	Now, Officer Grayson. Where’s the I don’t know/I
	19	don’t recall chart?
	20	A	Okay. It’s toward the end. Keep going. Keep going
	21	several.
	22	Q	Otte wants me to keep this here because he did good.
	23	Let’s go past that. Okay. Grayson can’t recall. Now,
	24	that, as I understand, we need to look at to see if --
	25	that helps us linguistically to determine whether Grayson
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	1	heard what he said he heard or whether he’s mistaken based
	2	on his memory.
	3	A	It contributes some information about Grayson’s
	4	ability to recall which can help us understand whether
	5	indeed he was recalling accurately or not. I believe I am
	6	saying the same thing you just said.
	7	Q	Okay. I try to keep it shorter so I don’t confuse
	8	myself.
	9	A	I’m sure you were shorter than mine.
	10	Q	As far as Mr. Grayson, I guess you’re aware from the
	11	preliminary hearing testimony that this was his first
	12	homicide crime scene.
	13	A	I understand that, yes.
	14	Q	So obviously there are other factors besides his
	15	memory that we have to take into account as we look at
	16	those questions about not being able to recall.
	17	A	That he was pretty emotionally distressed too from
	18	the sound of it.
	19	Q	And he may have been emotionally distressed when he
	20	gave his testimony.
	21	A	He may have been.
	22	Q	I mean, and certainly that could be a factor.
	23	A	It could be.
	24	Q	And certainly I guess a fact in that could be well,
	25	Mr. Lawyer, I’m going to answer your questions so I can

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	1	get out of here. I mean, that’s a factor, isn’t it?
	2	A	Yeah, unless one enjoys this sort of thing it would
	3	be a factor.
	4	Q	So there are other things that we have to look at
	5	when we do the recall analysis as to -- as opposed to
	6	well, just because he can’t recall we therefore must infer
	7	he didn’t recall these other things.
	8	A	I would say that’s true. This is still quite a list
	9	and not being able to recall what your field notes say,
	10	things of that sort -- I mean, I didn’t get into a
	11	qualitative analysis of these things. Some things you
	12	don’t recall you wouldn’t expect anybody to recall. I
	13	mean, Miss Lippert couldn’t recall her license number.
	14	Well, so, who can recall his license number.
	15	Q	Well, what do you find strange about recalling what’s
	16	on your field notes?
	17	A	Well, if you’ve written something down -- writing
	18	solidifies memory. If you write something down it’s much
	19	easier to remember than if you don’t write it down.
	20		If you’ve ever had a dream, if you don’t
	21	write the dream down you’ll never remember it. This has
	22	been true of writing for years, and if you are able to
	23	remember anything while you’re talking but can’t remember
	24	what it is you’ve written down, it’s backwards. You
	25	should be able to remember what you’ve written down better
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	1	than what your -- what you’ve heard.
	2	Q	Well, now, this incident happened June the 11th of
	3	1990, is that correct?
	4	A	Yes.
	5	Q	Okay. And Officer Grayson is testifying at
	6	preliminary, what, March of ‘91?
	7	A	Approximately.
	8	Q	So the context of the question was, in effect,
	9	Officer Grayson, you don’t recall what you wrote almost a
	10	year ago.
	11	A	Well, that has to be said in a context, too, which is
	12	if I believe the preliminary hearing testimony of many of
	13	the officers this was a top priority, this case. It was
	14	in their minds, they were thinking about it. And I don’t
	15	know about Officer Grayson, but I don’t know very many
	16	officers that don’t review somewhat before they go into
	17	court, and reviewing ones notes would make sense. It
	18	would make sense as a way of getting ready.
	19	Q	Well, there’s a difference between reviewing notes --
	20	I mean, reports and field notes, or do you make that
	21	distinction?
	22	A	Well, as it turns out he finally submitted and found
	23	his field notes and they are practically identical to his
	24	report. So if he couldn’t remember what his field notes
	25	said then he didn’t remember what his report said either..
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	1	Q	Now, did that come out in the preliminary?
	2	A	Yes.
	3	Q	Okay. So that’s something else we ought to add to
	4	the list that he didn’t remember that his field notes were
	5	identical to his report..
	6	A	He didn’t say that in his-- in his--no. He
	7	submitted his field notes at some point. I don’t know
	8	when. But it wasn’t discussed in the preliminary hearing.
	9	Q	Oh, so that’s extra information you have?
	10	A	Extra information.
	11	Q	Okay. Now, I think we did the I can’t recall on
	12	Officer Davis too. And he did a little bit better.
	13	A	Quantitatively, yes.
	14	Q	As far as number?
	15	A	Yes.
	16	Q	Now, we didn’t, either with Officer Davis or Officer
	17	Grayson, look at what they could recall, did we?
	18	A	No. The rest of the things -- well, I can’t say that
	19	the rest of what he said was things he recalled because so
	20	much of the preliminary hearing testimony was argument
	21	between attorneys and other things that were not related
	22	to this. No, he remembered a great deal.
	23	Q	You’re suggesting that we did not get along?
	24	A	Oh, I’m not suggesting that arguing as anything to do
	25	with getting along.
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	1	Q	But I guess my point is obviously Officer Grayson and
	2	Officer Davis had more to say than is reflected on the two
	3	pages..
	4	A	Oh, yes. Definitely.
	5	Q	But what you have chosen to do in your analysis is to
	6	zero in on the things they could not recall as opposed to
	7	the things that they could relate and they could tell us
	8	about their observations that evening?
	9	A	That’s exactly what the title of it is, yes.
	10	Q	Now, doctor, I believe you told Mr. Carlson that as
	11	far as your compensation so far you’ve billed him in the
	12	amount of 15 hours, is that right?
	13	A	That’s right.
	14	Q	Now, would that be your total involvement or would
	15	that necessarily exclude your appearance today and your
	16	expenses as a result of that?
	17	A	No, it excludes that.
	18	Q	And does that $125 an hour go for that as well?
	19	A	I’m sorry. I don’t understand.
	20	Q	Well, I believe you said your standard fee is $125 an
	21	hour.
	22	A	Right.
	23	Q	Now, does that mean that applies to courtroom
	24	testimony?
	25	A	Oh, no, no, no. I have a courtroom testimony daily

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	1	fee?
	2	Q	And what is that?
	3	A	$1,250. Ten hours of time.
	4	Q	$1,250 plus the 15 hours of preparation.
	5	A	That’s right.
	6	Q	Plus your expenses for the trip, I assume?
	7	A	Yes.
	8	Q	That would be obviously you’re compensated for your
	9	plain fare and those type of things.
	10	A	Plain fare, hotel. I think that’s it.
	11	Q	Is there anything I missed?
	12	A	Not that I’m aware of.
	13	Q	I mean, is there anything else that you would have
	14	done	in regard to this case that you would need to bill
	15	for?
	16	A	No. I don’t bill for faxes or phones or mail or
	17	anything like that.
	18	Q	So whenever your final bill is submitted that would
	19	basically be for your expenses today and your courtroom
	20	testimony fee?
	21	A	And whatever other time -- whatever other time I put
	22	in.
	23	Q	Oh, is there more time other than the 15 hours?
	24	A	Oh, yes.
	25	Q	And how much more time?
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	1	A	15 hours was the billing for the month of June.
	2	Q	Okay. Is there --
	3	A	Probably another 30 hours for the month of July.
	4	Q	July is 30. So we’re talking about a total of 45
	5	hours plus your expenses today?
	6	A	That’s right.
	7	Q	Plus your courtroom testimony fee.
	8	A	Single day honorary.
	9		         MR. CORGAN: I believe that’s all. Thank
	10	you, doctor.
	11	---------------------------------------------------------------------
	12		            REDIRECT EXAMINATION
	13	BY MR. CARLSON:
	14	Q	Dr. Shuy, you said that, on counsel’s questions, that
	15	the linguistic nature of Steve Allen’s speech on the
	16	Gardella interview correlated with certain emotional
	17	states.
	18	A	That’s correct.
	19	Q	And what emotional states did that correlate with?
	20	A	Distress, being upset.
	21	Q	Doctor, is it uncommon for an individual who comes
	22	and who works on a project to be compensated for his time
	23	and his expenses for testifying?
	24	A	No, it’s not unusual at all.
	25	Q	Does it happen every day in your experience?
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	1	A	Me personally every day, no. Not me personally every
	2	day. But I know of many people who are compensated for
	3	work, hard work on cases of this sort and who dislike
	4	immensely being away from family and do charge a daily
	5	fee.
	6	Q	What was the first thing that you related to me when
	7	I sent you this information to review?
	8			MR. CORGAN: Judge, I’m going to object as
	9	being beyond the scope of cross-examination.
	10			MR. CARLSON: Has to do with his
	11	credibility, Your Honor, which is what counsel touched on
	12	by his --
	13			THE COURT: You may answer.
	14	A	The first thing what?
	15	Q	(By Mr. Carlson) What was the first thing you
	16	related to me in regard to the particular information
	17	which I sent to you in regard to what you would do after
	18	you reviewed it?
	19	A	I probably told you I would review it and tell you
	20	whether I had any -- anything useful that I could do, and
	21	if I didn’t I wouldn’t charge you anything?
	22	Q	Did you also relate to me you’d tell me the good and
	23	the bad?
	24	A	Oh, definitely. I do that regularly. If it’s bad
	25	news I tell it quick. That’s one reason I do the initial
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	1	assessment. I want to let people know that.
	2	              MR. CARLSON: Thank you, doctor.
	3	              THE COURT: Is that all?
	4	------------------------------------------------------------------
	5	                  RECROSS-EXAMINATION
	6	BY MR. CORGAN:
	7	Q	Doctor, I guess the good news is that what is said on
	8	the tape differs than what’s been said on reports and
	9	previous testimony by officers?
	10	A	I don’t know why I could characterize that as good
	11	news.
	12	              MR. CORGAN: That’s all. Thank you.
	13	              THE COURT: Thank you. You may step down.
	14	Thank you for saying late, ladies and gentlemen, to
	15	accommodate our last witness. Recess till nine o’clock in
	16	the morning then. Nine a.m.
	17	               (THE EVENING RECESS WAS HAD. AFTER WHICH
	18	               THE FOLLOWING PROCEEDINGS WERE HAD ON
	19	                7-30-91, IN CHAMBERS OUTSIDE THE HEARING
	20	                OF THE JURY:)
	21	               THE COURT: Show that we’re in chambers
	22	prior to -- well, Mr. Carlson had some matters to take up
	23	in chambers.
	24	               MR. CARLSON: Your Honor, with regard to
	25	the crime scene video, it’s relevant to one of the

DISTRICT COURT OF OKLAHOMA
OFFICIAL TRANSCRIPT

LH 2000