Herzog (Cross) Testimony

Trial Testimony of
JOHN HERZOG
(PA State Police Investigator - Head of PA Task Force)

Vol - - (#20) pp. 3 - 85 | Friday, May 24, 1991 | Jenny Cataldo

Previous INDEX Next

w20_jh.html
This is the continuation of Trooper Herzog's testimony under CROSS examination by Barry Smith, on Friday, May 24, 1991.
Here is where Barry Smith confronts Herzog concerning the 'Danny Boys' shirt/campsite/Riverside Road matter.

Also a reference to Smith's exchange with Brown concerning Brown's statement concerning the sliding door on Wilson's van - a "sliding" door that does not exist (in a Dodge (Warrior) Voyager).
Here is one such exchange Smith is referring to - during Brown's testimony on May 16, 1991. And here is the newspaper article concerning that exchange.
And here is the only other reference (in the relevant testimony) to a sliding door, and concerns Kathy Wilson's coming out of work and getting in her van.

THE COURT: Good morning.

JOHN HERZOG, III, called as a witness, having been previously sworn, testified as follows:

CROSS EXAMINATION (cont.)

BY MR. SMITH:

Q. Mr. Herzog, did you find the twine I asked you to?

A. No, sir, I did not.

Q. Don't have it anywhere?

A. I believe it's over there (indicating).

Q. Could you look for it?

A. (Witness complies.)

(Off-the-record discussion.)
DEX126
(Document marked Defendant's Exhibit No. 126.)

Q. Mr. Herzog, I am going to show you what is marked for identification purposes as Defendant's Exhibit 126 and ask if that looks familiar to you.

A. Yes, sir, it does.

Q. What is it?

A. I believe it's a letter written by Jay to Joyce.

Q. Suicide note, right?

A. I am not sure it's a suicide note.

MR. SMITH: Move for admission of 126, Your Honor.

MR. MASSA: No objection.

THE COURT: Admitted.

BY MR. SMITH:

Q. Could you read the letter to the jury?

A. I will attempt to. I had a big blowup with Karen and Donna tonight.

THE COURT: it might be helpful if we get the date on this.

MR. SMITH: The letter is dated May 30, 1988, Your Honor. The date of the suicide through other records would be later than that by a couple weeks.

THE WITNESS: I had a big blowup with Karen and Donna tonight. Naturally it was about you. I won't go into detail because I will tell you about it - - I believe - - in the morning when I catch you on your way to work. Always even knowing you as well as I do, they almost had me convinced of what they were saying Joyce. I felt a real bad need to talk to you, but by the time I got out to your house it was 10:30, and there weren't any lights on so I just left and came up to the trailer to pass the night. Honey, I have waited through every room and the yard I don't know how many times reliving the happier moments we had to share. You said you had the happiest time of your life with me. Well, it just so happens that meeting you and sharing the special times we have has been the greatest event in my life. Joyce I have always loved you dearly. Each time I try to strike out to hurt you, I was hurting myself more. I am desperately sorry for all those times and I hope you will forgive me. I am writing

this on the toilet seat with my back to the bathtub. And there is several areas - -

Q. That are blacked out?

A. That are blacked out.

Q. Do you know how the areas got blacked out?

A. Do I? No sir.

Q. You don't have any idea?

A. No, sir. I did not black them out.

Q. Who did you recover the note from?

A. The note was part of the evidence obtained from the Jamestown Police Department.

Q. Did you get an indication, or to your knowledge, did Joyce Wilson black out the areas because she was embarrassed by them?

A. That's possible. I don't honestly know how they were blacked out.

Q. Go ahead.

A. I couldn't mean anything else more, Sweetheart. Each time was like the first time and a new experience. Honey you have got more than enough problems to last you and the kids a lifetime so I am not going to try anything - - I'm sorry - - to lay any of mine at your doorstep but I do want to explain something to you so you will understand. This has nothing to do with you, so don't think it does. I mean it. This is something I chose to do because I want to. Please

understand. You of all people should. Joyce there isn't anything wrong with my mental state of being. I consider myself as sane as the next guy. Maybe I am a bit more .sensitive than a lot of guys, but all in all I don't think I am that bad. Of course, if you listen to Karen I am a raving loony tune. And there is parentheses, smile. Babe, all this shit that has happened in the past month has taken its toll on me, especially with this shit with me, the missing girl. Having my name linked to something like that is just too much. Here again, the blackout goes through from the front to - - I have - -

Q. Let me see if I can help you out. Doesn't it say, I have never nor would I ever get myself involved in anything like that? Is that what that line says?

A. Basically.

Q. Can you read the next line? It says, okay, I have had more than my share of mistakes in the past, but that's just it. It was in the past. And because of - - is that what that says? Is that what that says?

A That's what it looks like, yes, sir.

Q. You don't know who blocked that out?

A. I already stated I don't know.

Q. Go on. Second page.

A. Page 2. Those mistakes, every time something happens the law will be right at my door ready to take me in.

I wonder what it will be the next time. They have harassed the hell out of you, parentheses, which bothers me the most, end of parentheses. My friends and family followed me everywhere I went for a week, and they tell me I am not a suspect. Bullshit. I have had friends hang up on me when they found out my name was being mentioned in connection with the case. They don't want to get involved. It's as if I am being tried and convicted for something I know nothing about, and I know damn well it won't be the first time. I am not looking forward to it either. My family is another matter. Well, you know how they are. You have seen firsthand what they are capable of. I am out of work, can't get a job - - excuse me, washing cars with all this crap going on. I have to stay at Karen's because I don't have anywhere else to go. I can't leave the state as I want to. How much am I supposed to take? That's the whole point Sweetheart. I have reached my max, and I am not going to take any more. Please don't think unkindly of me, Joyce or that I am weak. The simple truth of the matter is that I am just plain tired of it all. Life just isn't with worth living if I can't rise above the muck I am standing in. As strange as it may sound, I am beginning to feel a little peace just from explaining. I don't know anything about drugs but I have managed to get some pills that hopefully will do the trick, at least the combination of them should work. As I said, Honey, this is

not a spur of the moment thing, but something I have wanted to do. It probably isn't the right solution but it's the final solution. I shouldn't really be writing this type of letter to you knowing how sensitive you are, but you're the main character in my life, and I just had to explain my reasons. I want you to understand and to accept it as it is. I'd also like you to explain it to the kids when the time is right so they won't think the worst of me. I love you, Babe, and the kids. I wish I could have had more patience so we would have had our happy-ever-after ending - - again, smile. Remember the good times because they were good. I'm sorry for every tear I caused to run down that pretty face, and I'm sorry for being such a jerk. Most of all I'm sorry I never made you Mrs. Jay W. Buckley. You are a good lady, Joyce, and don't you ever let anyone tell you different. Be strong for yourself and the kids, Sweetheart, and remember your medicine. When Brook is old enough to understand tell her she almost had another grandfather who loved her deeply. Give her a super big kiss and a hug for me along with Jill and - - I believe it's Z-0 but I'm not sure what it is. Please don't be sad, Sunshine. I am finally going to be free. I better stop here. I want to go through a few more memories before I go. Believe it when I say I love you, Joyce Wilson. Take care of yourself and the kids. You have been my only true love. All my love, Jay, some X's and O’s. P.S., don't cry just smile. I will

always be with you. I believe; Lee Greenwood.

Q. Date of the letter is what?

A. The date of the letter is Monday, May 30.

Q. And you are aware that Mr. Buckley, shortly thereafter, attempts to commit suicide by taking these pills?

A. I believe it was sometime in that area.

Q. It doesn't indicate anywhere he has any involvement in the Kathy Wilson case, does it?

A. It doesn't say that in the letter no.

Q. As a matter of fact, it indicates he is falsely accused of it and being hounded by the police?

A. I believe that's his feelings, yes, sir.

Q. And he wrote that, did he not, at a time when he was thinking about taking his life, right?

A. I can't tell you what Mr. Buckley was thinking at the time he wrote that letter.

Q. You are aware, are you not, that when Mr. Buckley was hospitalized for that suicide and came out of his coma there was police officers there, right?

A. Sir, I don't know what transpired at that point in time, no, sir.

Q. You are not aware of the police officer asking him questions about the Kathy Wilson case?

A. No, sir.

Q. We will ask the Jamestown Police when they get

down here. What he says in there about being hounded is somewhat true, isn't it?

A. Here again, sir, I can't answer that question.

Q. True or not that in the last two years or three years of your investigation you have wired numerous people, cellmates, people on the outside et cetera, the task force, yourself and the Jamestown people and everyone else involved in the case and had them go to Mr. Buckley and go to Mr. Buckley's relatives and question them in hopes of getting some kind of statement that Mr. Buckley did this crime, right?

A. To my knowledge, it was not numerous people. To my knowledge there were two people that were wired.

Q. Did you ever get anything back on any of those wires from any source indicating that Jay Buckley killed Kathy Wilson?

A. We received information as a result of Bonnie Welder that Jay Buckley was - -

Q. Bonnie Welder wasn't wired when Mr. Buckley was supposedly at her house, right? That was later on?

A. No, she was not wired when Jay Buckley was in the house.

Q. As a matter of fact, you wired her and sent her to to the house trying to get Al Sischo (spelled phonetically) to say yes we were talking about Kathy Wilson, right?

A. That's correct.

Q. And Al Sischo denied they were talking about Kathy Wilson?

A. On the wire, yes, sir.

Q. Right on the wire. What did he say they were talking about?

A. Sir, the wire that we placed on Bonnie Welder that day was almost completely - - there was a lot of static; there was a lot of room noise and the conversation was very limited to what we could hear.

Q. You didn't hear anything in there that indicated Al Sischo said Jay Buckley was talking about Kathy Wilson?

A. On that day, no, sir.

Q. As a matter of fact, he said we got paid - - he told me he got paid for painting houses. Isn't that what he told you?

A. Mr. Sischo in a conversation that I had indicated that that information was probably factual.

Q. Mr. Sischo is going to testify. We will ask him.

A. Sir, that's fine.

Q. But you wired other people, cellmates and things like that, right?

A. Again you're stating numerous people. To my knowledge, there were two people wired in this case.

Q. And in addition to wiring people, you have followed people have you not?

A. No, sir, I have never followed anyone.

Q. Maybe not you personally, but are you aware of your agency following people?

A. My agency, to the best of my knowledge, has not followed anyone.

Q. So you never went out and conducted interviews or asked anybody in this case?

A. Sir, I conducted numerous interviews. I have not ever harassed anyone in this investigation.

Q. Out of these numerous interviews and out of the wires and the other things, have you ever had anybody say or got any admissions from Jay Buckley or had anybody indicate that they had some knowledge that Jay Buckley committed this crime other than Michael Brown?

A. As a matter of fact the subject you are talking about, Mr. Sischo, indicated to me that the information that we were talking about that Jay Buckley was involved in this cases that he, in fact, had knowledge and belief that Jay Buckley was involved.

Q. Any reason why you didn't bring Al Sischo to trial?

A. Because Al Sischo didn't want to make an official statement and didn't want anything to do with the police.

Q. But you could have subpoenaed him?

A. Yes, sir, we could have subpoenaed him.

Q. We subpoenaed him. Back in 1989, right, when you first interviewed Michael Brown, you, on October 10, I believe, issued an arrest warrant for both Mr. Brown and Mr. Buckley, right, on his fourth or fifth statement?

A. That is incorrect. on October the 10th we arrested Mr. Brown. On October the 12th we arrested Mr. Buckley.

Q. I stand corrected, okay. Based on Mr. Brown's statement to you, right?

A. And the physical evidence at the crime scene, yes, sir.

Q. Physical evidence at the crime scene. At the time you arrested Mr. Buckley you didn't have any reports back on hairs, right?

A. That is correct.

Q. And the physical evidence at the crime scene, we already discussed that yesterday, and you don't recollect Mr. Brown saying her clothes were ripped at one point and at another point saying her clothes weren't ripped off?
A. My knowledge, and my memory tells me that Mr. Brown stated that he unbuttoned the blouse and the bra.
Q. I know what he stated at trial. I am asking about prior statements.
A. Again, to the best of my knowledge, Mr. Brown maintained that statement.

14
Q. Okay. We will let the jury decide that. You were present when we read the report, the conversation between Mr. Tridico and Mr. Aranyos, right, introduced into evidence as an exhibit, right? Mr. Aranyos being Mr. Brown's attorney?
A. Sir, I don't know what you're talking about.
Q. Do you recollect the report where Mr. Aranyos says we can give you the bank bag, the shoes, the murder weapon, we can do all this stuff for you, and Mr. Tridico says, we know your guy is involved in the crime because the blouse was unbuttoned and the bra was unhooked and things like that. Do you remember that statement being entered into evidence?
A. I remember generally about that statement, yes.
Q. And after that statement was made to Mr. Aranyos, Mr. Brown's attorney, from then on Mr. Brown was consistent about how the clothes were removed; would you agree?
A. I think that information of the blouse being unbuttoned and the bra being unhooked was obtained from Mr. Brown prior to that statement by his attorney.
Q. It wasn't a statement by his attorney. It was a statement by Mr. Tridico who worked with you extensively on this case.
A. If that be the case - - what I am telling you, we had that information before that statement was made.
Q. I know you had that information. You were at the

15
crime scene. The point is, in that statement you gave that information to Mr. Aranyos, Mr. Brown's attorney.
A. I also stated to you we had that information from Mr. Brown before that statement.

Q. Like I said, we will let the jury decide what his prior statements were before that statement. You also told him, did you not, about the Chautauqua Mall witnesses, you or some member of your staff or somebody who worked on this force?

A. The statement I made to Mr. Brown when we were talking about the possibility of the abduction occurring at the Chautauqua Mall, I advised him, when it came to the time of day that he said he was at the Chautauqua Mall, I advised him that we, in fact, had a person that possibly observed him at the Chautauqua Mall.

Q. You told him you had six people that saw him at the Chautauqua Mall, right?

A. No. sir, I did not tell him that.

Q. And up until three weeks ago, you were prepared to bring all six in here and say we saw Kathy Wilson at the Chautauqua Mall?

A There were not six people.

Q. How many were there?

A. I believe we had one person that was going to testify in court.

Q. I am going to through (sic) those people later on, but I want to move along. Also in those statements we reviewed we saw he was told about Akeley and that there is a witness at Akeley, right?

A. He was never told that there was a witness at Akeley. He was asked after he took us down a road and showed us where he turned around, and that happened to be at the Akeley intersection, after he told us that, I asked him if he observed anyone or anything at that intersection that drew his attention. He, in fact, told me that he observed a female walking a dog at that intersection of - -

Q. Didn't tell you he saw a van?

A. No, sir, he did not.

Q. In addition to not telling him about the nylons, you didn't tell him about Mr. Cummings did you?

A. No, sir, I did not tell him about Mr. Cummings.

Q. Do you have any explanation as to why Michael Brown testified, I didn't see a van on Lindell Road at all, no other traffic, no other cars?

A. Sir I really can't say why he didn't. I would assume he was not (sic) having a female in the back that he was involved in a kidnapping. He probably had more things on his mind than who was passing him on the roadway but I can't speak for him.

Q. He just forgot it then?

A. Pardon me?

Q. He just forget it?

A. Forgot what?

Q. About the van he passed on Lindell Road, that he had to pull over and all that?

A. I can't speak for him. Maybe he didn't see the van.

Q. You heard Mr. Cummings' testimony? You were here, right?

A. That's correct.

Q. Mr. Cummings said he left his house at 6:00, stopped three places, 15 minutes each, asked him how long it took to get there. He is there at dusk. He is talking 8:00 or 8:30?

A. I think you have to remember Mr. Cummings was very explicit when he said, as most people in this case, they were not sure of the times. All the times are approximate. It could have been earlier.

Q. Well, we know he gave a time when he left the house and said he stopped three places and said 15 minutes each place. That puts him there at 8:00, 8:30?

A. Again, if you go by the times exactly yes, but everything was an approximation, and he said he was not sure of the exact time.

Q. Do you recollect the conversation I had with you

and Ms. Flynn and Mr. Massa about four weeks ago in Mr. Massa’s office concerning what evidence we had in this case?

A. Sir, we have had numerous conversations.

Q. Do you recollect me telling you and Mr. Massa that we didn't believe Cummings, we felt Cummings had the wrong day, because in the reports it says he read it in the newspaper the next day. Do you recollect that at all?

A. Yes, sir, you have made many statements like that.

Q. Yes. Pointed that out. Said we don't think Cummings was ever on that road that day because the statement said he read it in the newspaper the next day, and it ain't in the newspaper until May 20, right? We told you that right?

A. Yes, sir. Is that a question?

Q. Yes. That's a question. The answer is yes, right?

A. Well, the answer to the question is, it's rather strange that he describes the same van - -

Q. That's not the answer to the question. The question was whether I told you that, and the answer you just answered it and said yes, right?

A. What you said, yes, sir.

Q. Do you have any explanation as to why Mr. Cummings now comes to trial and says, after I had this conversation with you and Mr. Massa that he now comes to trial and says, oh, no, it wasn't the paper, I read it in the paper the next

day; instead it was my brother-in-law who told me, and changed his two prior statements completely around. Do you have an explanation for that at all?

A. Sir, what are you asking? What are you trying - -

Q. I am asking if you know why he did that.

A. I can't tell you why Mr. Cummings said what he said on the stand.

Q. So your answer then is, no, you don't know why he did that?

A. Why he said that. I would imagine it's the truth. That's the only thing I can assume.

Q. You don't have any explanation as to the contradictory nature of the prior statement?

A. Contradictory, I don't think he was that contradictory in what he was saying.

Q. And it's just a coincidence I told you that four weeks before he testified?

A. Are you saying we instructed him to say something?

Q. Did you?

A. No, sir, we never instructed anyone in what they are to testify, only to testify to the truth.

Q. Did you happen to mention to him that the defense here pointed out that the newspapers didn't come out until the 20th?

A. Mr. Smith, no, sir.

Q. Just thought I would ask. You testified yesterday that you didn't believe Mr. Brown. Mr. Brown told you a lot of things you didn't believe, and I suspect at trial he said a lot of things you didn't believe either, right?

A. I never said I do not believe Mr. Brown.

Q. You're kind of between a rock and a hard place, aren't you, with the initial Brown statements? You got four statements he initially makes, and you make an arrest based on it. So either you got to admit you're misled or deceived by Mr. Brown, or on the other hand, you got to say you arrested a guy based on a false statement you knew was false when you arrested him, right?

A. I am perfectly comfortable with the information that Mr. Brown gave us relevant to the crime scene and what occurred in the state of Pennsylvania. I do have some questions on some of the things he told us, but not of the crime scene itself.

Q. You testified yesterday did you not that the story that you had in your probable cause that led to the arrest of Mr. Buckley, that you knew that was a lie?

A. No, sir I said at (sic) one of the parts of that statement which he told us that the flashlight was used was not correct. The rest of the statement I feel is true and correct.

Q. Well, we went over the statement. I don't want to

bore the jury with it again, but he has her killed at a gravel pit, at night, things like that in that probable cause, doesn't he?

A. I believe the probable cause indicates that she was killed on the Lindell Road, and she was raped on the Lindell Road.

Q. I'm sorry, that's after you did take him to Lindell Road, so it does say that, but it says it happened at night, not the daytime?

A. Yes, sir, I already admitted to that.

Q. Are you saying you knew at the time you filled out that probable cause this murder did not happen at night?

A. No, sir, I did not say that either.

Q. So then you did know? Is that what you are saying today or what?

A. What I told you yesterday, Mr. Brown, the facts that he gave in reference to this incident, I felt in my mind everything was true and correct on how she was murdered and what took place, and he was telling us it was at night.

Q. I am asking you a very simple question. Let's try yes or no, okay? Let me show you Defendant's Exhibit 26. Let me show you the probable cause attached to it. Are you familiar with it, or do you desire to read it?

A. I am familiar with it Mr. Smith.

Q. All right. Numerous lies in that probable cause

right? Numerous lies?

A. There are not numerous lies, no, sir.

Q. Should we get the chalkboard out or what?

A. Sir - -

Q. Is there anything in here that you knew was a lie at the time you filed this, at the time you signed your name down right here (indicating)?

A. That I knew was a lie?

Q. Yes.

A. No, sir, there was nothing there at the time that I signed that complaint that I knew was a lie.

Q. So then your testimony yesterday was wrong when you say I knew - - I was deceived by him, but he wasn't fooling me. Mr. Brown, at least at this time, was fooling you, wasn't he?

A. The basic elements of the crime which he was charged with of the rape and murder in the state of Pennsylvania with the exception of the difference of night and day, the facts are the same.

Q. You weren't deceived when Mr. Brown told you she was stabbed in the stomach? Is that fact the same?

A. The fact remains that she was stabbed.

Q. How do you know?

A. Pardon me?

Q. How do you know she was stabbed?

A. By what Mr. Brown has told us.

Q. Right. Right. And he also told you she was strangled, right?

A. There is also indications presented here by the FBI that - -

Q. I am not asking about the FBI. I am asking about Mr. Brown.

A. You are asking if there was anything else. I am trying to explain it to you.

Q. We heard from the FBI guy. I am asking you, Brown tells you she was strangled, right?

A. I think early on in one of his statements he mentioned that.

Q. Sure. And in a very initial statement he said she is shot, right?

A. That's possible, yes, sir.

Q. And when he tells you she is knifed, he tells you stomach, side, back, kind of covers the whole area of the body, and then in one of the things we come to, you're demonstrating to him with a pencil how to come down. Why didn't you hand the pencil to him and ask him to show you what he saw?

A. I was asking Mr. Brown a question. Mr. Brown was attempting to - - or give me an answer. I was merely reflecting what he was telling me as I was thrusting down or

up.

Q. We read the statement and it speaks for itself. Let me ask you this. Mr. Brown says Shelly Anderson is essentially an accomplice to murder, kidnapping, rape - - maybe not a rape, if there was a rape, but murder and kidnapping, right? Accessory to those crimes, right?

A. As Mr. Brown said it, yes, sir,

Q. And you went down to Florida, what, three times to interview Shelly?

A. That's correct.

Q. The last time you went down armed with a material witness order to throw her in jail to make her post $5, 000 bail and everything else?

A. That's correct, I had an order from the Court.

Q. And despite Mr. Brown's telling you all those things, you didn't arrest Shelly Anderson or prosecute her on any charges whatsoever right?

A. That decision of serving that paper was left entirely to my discretion. Once I got to Florida, if I felt that Shelly Anderson would return to the Commonwealth of her own free will and be a witness for the prosecution at the time of the trial, then there was no need to file that paper. That paper was designed to insure that she be here to testify for the Commonwealth.

Q. Okay. But that doesn't excuse the fact that

according to Mr. Brown, she committed these crimes. Why haven't you arrested her?

A. I have no reason to arrest her at this time.

Q. No reason to arrest her despite the fact she is the one that supposedly goes to the mall, takes the van back to the mall; despite the fact Brown initially told you she helped wiped down fingerprints, despite the fact she is there when Kathy Wilson is there; despite the fact Shelly Anderson tells him, I can't believe Jay Buckley is doing this, and despite the fact that Shelly Anderson lies to the police for two and a half years after the event?

A. Which question would you like me to answer first?

Q. You don't see a crime anywhere at all in that?

A. As I said, as far as Shelly Anderson participating Michael Brown never said that she, in fact, went and wiped down the van. He said somebody went, and he mentioned her as a possibility of going. He never said she did. The other statements he made, no, Shelly wasn't arrested on those statements.

Q. Isn't it true that the reason you didn't arrest Shelly Anderson is because you didn't believe Michael Brown?

A. Sir, I have told you, I believe Michael Brown and the statements he gave us about the crime scene.

Q. I am talking about the story Michael Brown told this jury about Shelly Anderson's involvement. Isn't it

true you didn't arrest Shelly Anderson because you don't even believe what he told this jury?

A. Sir, those - - some of the those things he said, no, we didn't arrest her. There are questions. Some of the facts that she gave us are very valid facts, one of them being that she took him, Jay Buckley, to the crime scene.

Q. She never said he (sic) took Jay Buckley to the crime scene. Maybe you were in a different courtroom. I heard her say she took him to a wooded area.

A. And she described it very well as the crime scene.

Q. It depends on what description you listen to.

A. You were there when we took her to the crime scene, and she indicated this was the spot that - -

Q. Point is, you haven't arrested her on Michael Brown's statement, but you have no problem at all arresting Jay Buckley based solely on Michael Brown's statements, right? How come?

A. I have no explanation for that.

Q. I didn't think you would. Do you have any explanation as to why it's only three months ago when she comes up with the wooded area idea after numerous statements to the police where she never said it at all?

A. I think, as she said, at this stage of the game we have to agree with the fact that she was never asked about that. And we were not aware of that until Michael Brown told

us that.

Q. So are you saying these incompetent New York State guys never asked what she was doing with Jay William Buckley on May, 18, 1988, or that whole week, never asked her about any contact with Jay William Buckley at all?

A. They asked her numerous questions, but specifically they had no idea exactly what she was doing and that she was involved.

Q. Is this the murder knife (indicating)? Your 22 years professional experience as an investigator of crimes, is that the murder knife?

A. Sir I can't say that.

Q. Do you think it is, or do you think it's not? You did an investigation.

A. Are you asking for my personal opinion?

Q. Yeah.

A. Here again, I believe that knife was at the crime scene.

Q. Is this the knife that killed Kathy Wilson in your professional opinion, yes or no?

A. Sir, I can't honestly answer that. I don't know.

Q. No reports you received from anywhere indicated it was?

A. There are no reports that says that it is.

Q. No reports link it to Kathy Wilson at all, right?

Right?

A. Sir, there is no reports that say it isn't, either. There is reports that said it wasn't sanded. There is reports that said there is no blood on it. But there is nothing for me to say whether it is or it isn't.

Q. You didn't like the story, in addition to not liking the murder knife, and asking Michael to give you other knives and checking those out and not finding anything on those either, you didn't like the idea that Michael told for a long time whereby Jay Buckley takes Kathy Wilson, goes to his sister's house, and she is outside in the van kicking and screaming on the main street while he is in the house for three hours. You didn't like that story, and you told him that?

A. No, sir, I did not like that story.

Q. It sounded suspicious to you, right?

A. There was a lot of suspicions there, yes sir.

Q. You indicated that to him at one point in time, didn't you?

A. On many occasions I told Michael Brown that I wasn't satisfied with what he was saying.

Q. And when you told him that, Michael didn't have a problem, fine, and he proceeded to tell you about the campsite right?

A. It didn't occur as you're saying as a spur of the

moment thing. He did not change immediately when I said I did not like that story. He didn't say, well, here's another story. It was over a period of time before that additional story came up.

Q. Between the last time you interviewed him and next time when he gives another interview, right, that's the period of time you're talking about?

A. I don't think it was that quick. I think there was a couple interviews went by before he made the change that she was at the - -

O. At the campsite?

A. In the van that whole time.

Q. When he made the change and said she was at the campsite, you initially liked that one until you checked it out, and then you went back and said, I really don't like that one either right?

A. Sir, the only thing I can say, at that point in time we had physical evidence of a hair at that campsite and as far as liking it or disliking it, it was a statement that he was giving to us at that time.

Q. And you had a physical hair at the campsite, and you thought initially that's a good story, because I got a hair from some guy that searches this place two months after it's closed down, but nevertheless, I got a hair on a blanket up there, and that's good evidence, right, and you initially

indicated to him, yeah, we got this hair at the campsite, wouldn't it be nice if you told the campsite story, and Michael obliged you and tells the campsite story, right?

A. Sir, that's not the way that occurred.

Q. No?

A. We never went to him and told him what we didn't like, what we did like. When he told us a story, we went out and attempted to verify that. We attempted to verify it by times, things of that nature. We never advised him we don't like this, so you better change it.

Q. And that's the real problem with the campsite story, isn't it? It's a two-edged sword. It gets your hair into the case, but at the same time, in order for it to be true, it adds about an hour and a half to the time, and you already have a problem with time in this case, right?

A. Sir, I have no problem with time in this case because everybody that testified here today, as I stated before, doesn't have an exact time. Everybody is talking about approximations, give or take an half an hour, 45 minutes.

Q. Mr. Herzog, 22 years experience, right; investigated this case? Did you ever take your car and drive to how Michael described what they did this day and see how many miles it was and how long it took?

A. Yes, sir, I did.

Q. How many miles was it? How long did it take?

A. I will have to refer to my notes on that one.

Q. Sure. Fine.

A. (Indicating.) It's going to take me a while.

Q. I will tell you what. Why don't you look for that at break, too and testify to that when we come back.

A. Yes, sir.

Q. But you knew adding the campsite, going to the campsite, walking into the woods, walking halfway up the mountain, tying her to a tree, putting her in a sleeping blanket, doing whatever, walking back down, getting into in (sic) van, driving off, is going to add an hour, hour and a half to the time, right?

A. I think an hour, hour and a half is a little long.

Q. It's going to add more time to a case that you already had a problem with time on, isn't it?

A. Well, by this time we already eliminated the Chautauqua Mall which eliminates time. Now you're staying in the close proximity of the village of Falconer. Time is cut drastically at that point, too.

Q. Is that the reason Michael eliminated the Chautauqua Mall, because of the time problem and also because of the problem of these Quality witnesses which we were going to bring into court?

A. I don't understand what you are saying.

Q. Why did Michael change his story? To your knowledge, why did he change his story from the Chautauqua Mall to Quality?

MR. MASSA: I want to interpose an objection, Your Honor. The Quality witnesses Carmella Micciche and Anna Lee Nollinger testified at the preliminary hearing in July 1990. That's a (sic) unfair implication. They were subpoenaed to testify at preliminary hearing. They were subpoenaed as Commonwealth witnesses.

THE COURT: How does that fit into the question here? How does that objection fit?

MR. MASSA: Because the implication is didn't Michael Brown changed (sic) his story recently because somehow or other these witnesses surfaced at the Quality Market when the two witnesses were in the Commonwealth's investigation from the very beginning and, in fact, testified, Your Honor, at the preliminary hearing.

THE COURT: Just a minute. First there is two Quality Markets, one at the mall, one at the - -

MR. MASSA: The Falconer Quality Market, Your Honor, that Mrs. Anna Lee Nollinger and Carmella Micciche testified they saw Kathy Wilson on May 18 between 12:20 - -

THE COURT: I am not following the objection in light of the question.

MR. MASSA: The nature, as is usual for Mr. Smith,

is to draw an unfair implication by the phraseology of the question Your Honor is incorrect, it's misleading and it's - -

THE COURT: In what respect? How is it?

MR. MASSA: He says isn't it true - - question, isn't it true, Officer, that when we, the defense, were going to call Quality Market witnesses, that precipitated Michael Brown switching from the abduction from The Chautauqua Hall to the Quality Market when, in fact - -

THE COURT: You're talking about the Quality - -

MR. MASSA: Falconer Quality Market Your Honor, when, in fact those witnesses were produced by the Commonwealth a year ago at the preliminary hearing, Your Honor.

MR. SMITH: Your Honor if I may respond to that. First of all, I don't think it is a proper objection to that question, but if I may respond to that, two months ago the Commonwealth filed in this case, in answer to discovery, it's in the file, part of the record, in which they listed the witnesses they were going to call for this trial, and in that list of witnesses appear four witnesses who saw Kathy Wilson at the Chautauqua Mall. Now - -

MR. MASSA: That's not correct, Your Honor.

THE COURT: You can bring that up on redirect, Mr. Massa.

MR. MASSA: I will be seated.

THE COURT: We are dealing with a time issue, as I understand this interrogation, and the switch of the story from Brown from the campsite, he has to eliminate the Chautauqua Mall scene. I think that's where we were, so these other witnesses that are saying about seeing the victim at the Chautauqua Mall, that may be something that is urgent in the future. I don't see any problem with it now. The objection is overruled.

MR. SMITH: I have no idea what I asked him, Your Honor.

(Question read back by court reporter.)

BY MR. SMITH:

Q. Do you know?

A. I imagine that was the same point in time when he was addressed again and told that we have to have the exact truth about this incident.

Q. Didn't he initially come up with the Chautauqua Mall story because the Jamestown Police Department and those sources said they believe she was kidnapped from the Chautauqua Mall, because that's where they found her van? We put a statement into evidence that said that from Mark Wilson.

A. I think if you go back in this investigation to the beginning, you will find that, as I stated in the beginning of my testimony, that this investigation involved

several police departments. Each of the police departments had their own opinion, naturally, where this crime occurred. We have her seen in the Falconer Quality, we also recover her van in front of the Quality in the Chautauqua Mall. There were several different opinions of, in fact, where she was kidnapped from.

Q. Let's try your opinion. At least up until Michael said she was kidnapped from Quality, you, for two years, thought she was kidnapped at Chautauqua Mall, didn't you?

A. Yes, sir, there was physical evidence that said - - or there was a - - I shouldn't say physical evidence, there was a person that indicated she was there.

Q. Right. And so you didn't have a problem with Michael Brown's story that she is kidnapped from Chautauqua Mall until the defense advised you and Mr. Massa that we think she was kidnapped from Quality in Falconer, right? Then you went back to Michael and said, look this is what they are going you hit you with at trial.

A. I think that's giving yourself a lot of credit, Mr. Smith. That information was obtained from him before you made that statement to us, and it wasn't because of what you said.

Q. All right. Then let's take the credit entirely away from me and ask you why for two years in statement after statement and after the preliminary hearing and everywhere

else you're saying the Chautauqua Mall? That was the story you told at the preliminary hearing to this Court, she was kidnapped from the Chautauqua Mall. You didn't think it was a lie then and jump up and tell the Court, hey, that's a lie, did you?

A. No, sir, I did not.

Q. So at the time that he is telling the Court that, for which my client was bound over for this trial, you felt, yes that's the truth, right?

A. As I said, the person that was at the mall - -

Q. We heard that. You thought it was the truth, right?

A. I thought there was some credibility there, yes, sir.

Q. Now, when he tells the campsite story you initially thought that's the truth, too. We got this hair there, but there was two problems with that, wasn't there? One being time, and the second problem is there is a big old field there with two houses on each side, and the story would mean he would be - would have to be carrying Kathy Wilson right by two houses in an open field in broad daylight to go up to this campsite, right, and that was the second problem with the campsite story, wasn't it, in your opinion?

A. In my opinion, that probably was the only problem. As far as I am concerned, you’re the one saying time. I never

had a problem with the time in this case as reasons that I have stated.

Q. We will go over the time after break when you find the time sheets.

A. Yes, sir.

Q. Speaking of time, Mr. Trumbull, did you ever hear of him?

A. Yes, sir.

Q. Eyewitness to the purse, right?

A. He advises that he saw a purse, yes, sir.

Q. And he makes a report not three years later not two years later, and he is not a friend of Mr. Massa or friend of the victim, and he makes a report about seeing that purse, and the first time you or your agency interviewed him was when?

A. I believe he was interviewed by the Jamestown Police Department when he made that report.

Q. Mr. Trumbull is out there. He is going to testify. The first time he was interviewed was three days ago by your office.

A. How did he make a report to the police if he wasn't talked to by the police at that time?

Q. He calls it in.

A. That's - -

Q. My question is you're running around all these

times, you got the - - trying to find out when the purse gets there, when things happened, and there is a police report in the file from a gentleman who tells you he saw the purse, nobody ever talks to him until three days ago. Do you have an explanation for that?

A. My only explanation for that is we have had a couple people advise us that they saw what they felt was a purse on 62, and at the time of this investigation and throughout this investigation we have only one person that we can say positively saw that purse without any - - as far as we were concerned - - because he stops and he picks it up, and we know for a fact that that is the purse that has been identified as the purse. The rest of these people are merely seeing an object lying on the road which they feel is a purse.

Q. And your 22 years of police investigation leads you to believe if a guy stops and picks up a purse at 5:30 it must have been thrown there at 5:30, right? Is that your conclusion to that?

A. No, my conclusion to that was Janet Jesperson advised when she went by at 5:00, she did not seeing anything lying along the road. Mr. Welling stated that he went timewise, approximately went by after that, he did see it and he recovered it.

Q. Janet Jesperson didn't talk to you until what, six, eight months ago? Recovered the purse two and a half - -

two years ago. You know, right? The point being - -

A. I think Janet Jesperson talked to us before that.

Q. You are not saying Mr. Trumbull is not a credible witness and you don't believe him. How can you make that judgment if you never interviewed him?

A. Mr. Smith, as I said, Mr. Trumbull called the police and told the police what he had seen, as did other people. We had people seeing purses up on Route 60, over in McKean County.

Q. You had people seeing keys in this case all over the place, right?

A. That's correct.

Q. You had people seeing vans all over the place, right?

A. Yes, sir.

Q. Newspaper ran reports about, you see this van anywhere, and you and Jamestown and everybody else had a flood of calls from people saying I saw that van, it was such-and-such a place at such-and-such a time, I remember it clearly. Some of them ID'd the exact van, right?

A. That is correct.

Q. And you had people that saw bank bags calling you all over the place, right?

A. Yes.

Q. Numerous reports of sightings of bank bags,

numerous reports of keys, numerous reports of vans. Out of all those reports you got, and many of them were made within a week or two of the crime happening, you choose Jesperson and Cummings. How come?

A. We chose them? I don't understand what you mean by chose.

Q. You know, there probably is 50 to 100 people that reported vans in this case and reported it a long time before they did. How come you didn't bring those people in to testify?

A. Jesperson and Cummings both indicated that the van in question that they saw was an older model, windowless van with three subjects inside, two males and one female. With the physical description of the van, the time frame in which they saw it, the location in which they saw it, that's the reason that - -

Q. You had people at the mall that saw Kathy Wilson and positively identified Kathy Wilson leaving the mall with four black people, right? Are you familiar with those reports?

A. I can't honestly say I am familiar with Kathy Wilson leaving with four black people.

Q. You had numerous sightings of Kathy Wilson with numerous people and you discounted every report and everything in 2, 000 pages that didn't correspond to Michael Brown, isn't

that what you did?

A. No, sir, that is not correct.

Q. That's not correct?

A. No, sir.

Q. Everything that didn't correspond to Michael Brown you didn't discount, throw out, not interview, not care about?

A. Not at all, no, sir.

Q. January, this year, 1991, right - - December 1990, you are aware Michael Brown has a bail hearing, right, before this Court?

A. I don't remember the date. I knew he had a bail hearing.

Q. December 1990. Comes in to get his bail reduced.

MR. MASSA: Excuse me. It was 1989.

MR. SMITH: I'm sorry. 1989. Are you sure?

MR. MASSA: Certification hearing.

BY MR. SMITH:

Q. No, I am talking about bail hearing. It was 1990. December 1990, he comes into this Court to get his bail reduced, right? 500, 000 bail, and he wants it reduced to 10, 000, right, so he can get out of jail, right?

A. As I said, I don't remember the date, but I am aware of that, yes, sir.

Q. December 1990, he does that. Judge only reduces it to 250, so he stays in jail, right, 250,000, right? You

get a call from his mom, don't you. Or she contacts your agency or the district attorney through his attorney?

A. (No response.)

Q. January ‘91, after his bail is not reduced, Michael Brown and his mother come to you and your agency and want you to become aware they have the garbage bag. They have this garbage bag with Kathy Wilson's evidence in it and evidence that will convict Jay Buckley, and come up and get it, right? True?

A. I don't think that what you're talking about there is entirely the way it happened.

Q. Tell us entirely the way it happened.

A. At that point in time, talking with Michael Brown's mother, there was a discussion about the garbage bag in which Michael describes Jay Buckley carrying. Mrs. Brown advised us at that point in time that Jay Buckley was sitting out in the backyard, and that he had this bag in his possession. As Michael Brown had said, that Jay had this bag with him. At that point in time we asked if she had any idea where this bag might have gone; if she saw him take it away or whatever. She informed us that there was a possibility that Jay Buckley might have buried in the backyard.

Q. Right. That's what she told you. There is a possibility that bag, very important crucial evidence, is buried in my backyard.

A. That is correct.

Q. And that excites you, physical evidence finally. And you contact the New York State authorities, right, and you want to go up and dig up their backyard looking for it?

A. That is correct.

Q. And then she says, did she not, you can't dig up my backyard. You are going to let my son out of jail. You let my son out of jail, I will let you dig up my backyard, right?

A. Here again, I am not sure - -

Q. What did she say?

A. What did she say exactly?

Q. Yes.

A. I can't tell you what she said exactly. I don't remember what she said exactly.

Q. I can pull the police report out.

A. Please, sir - -

Q. Doesn't she refuse to give you consent to dig up her backyard?

A. At one point in time she did say we could not dig up her backyard.

Q. And she said that to you because you haven't let her son out of jail, right? You haven't let my son out of jail, you can't dig up my backyard.

A. Here again, I don't remember how she phrased it or

what she said. She did tell us at one point in time we could not dig up her backyard.

Q. And you told her what, we will get a search warrant and dig up your backyard whether you want us to or not?

A. I can't honestly say we told her we would do that. I told her if that bag was, in fact, buried there it would be beneficial to both her son and the Commonwealth if we could dig up her backyard, and I believe at that point in time her husband overruled, if that's possible, her wishes, and says it's my backyard also, and if you want to big in my backyard, you have my permission.

Q. What happened? Did you go up and dig the backyard up?

A. No, sir, we did not.

Q. How come?

A. Because as a result of continuing talk to Mrs. Brown, she advised me that probably the following day or the day after that, she was in her van and that she saw that same bag and that she opened up the bag, and she observed some bloody clothes inside, and with that information I personally felt there was no sense for tearing up her backyard, because she originally thought it might have been buried on that night, and now she is telling us she saw it at least a day or two later. There is no reason to dig it up because it

apparently was not buried there as she thought originally.

Q. You knew she was lying to you, didn't you?

A. Sir, I can't say that.

Q. Well, her statement was inconsistent. First she tells you it was buried in the backyard - -

A. Sir, you are saying she said that. That is not what she told us. She told us there was a possibility when asked what happened to that bag that it might be buried in her backyard. That was her only explanation as what she felt might have happened with the bag.

Q. Are you going to bring her in as a witness to testify about the bloody clothes she saw in the back of the van?

A. I don't believe so, sir. I have no explanation to that.

Q. If she saw bloody clothes in a garbage bag that Jay Buckley carried around, that's kind of crucial evidence to your cases isn't it?

A. Sir, again I have no answer for that. I can't tell you that.

Q. Let's talk about the ring. I am going to find the garbage. Let's talk about the ring a little bit. Brown describes this ring to you throughout the course of your investigation, right? Draws pictures of it?

A. Attempts to, yes sir.

Q. Gives you about three different descriptions of the ring, doesn't he?

A. I am not sure I would say that no, sir.

Q. You wouldn't say that he doesn't tell you one time it's diamond shaped, one time it's heart shaped, one time it's heart with diamonds all around it? Doesn't tell you all that stuff?

A. It was apparent to me that in his attempted description of that he was not real clear just exactly what it was.

Q. Because he couldn't describe it as Mark Wilson described it, right?

A. Well, if, in fact, it was a momentary thing and he only had it a couple times, I honestly don't know.

Q. You know whether he described the ring to you?

A. I am not saying he did not describe the ring. He did describe the ring, yes, sir.

Q. And he described it wrong right?

A. I can't honestly say he described it to a T, but whether he described it wrong or not, I can't honestly say that either. A general description of the ring - -

Q. It was a ring, right?

A. And the stones as he placed them could have been conceived as - - the only way to be positive is to obtain the ring that he is describing from the people that - -

Q. And you became aware at a certain point in time that he bought a ring from Kay Jewelers to give to his girlfriend, Brenda Snow; is that correct?

A. That's correct.

Q. And as a matter of fact, you became aware that the description of the ring he was giving you was the one he bought Brenda, right?

A. It was similar to the description, yes, sir.

Q. But you still believe Michael Brown, right, about the ring?

A. I missed - -

Q. You still believe Michael Brown about the ring, right? That's what you testified to yesterday.

A. I believe Michael Brown when he says that Jay Buckley put the ring in a bag at the campsite - - or at the logging road. Yes, I think that's factual.

Q. What evidence do you have to support that other than what Michael Brown says?

A. Basically none, sir.

Q. As a matter of fact, Mr. Brown told you that he sold the ring or tried to sell it at a party, right? That there was a party going on, and this talk of a ring and a necklace was he tried to sell Kathy Wilson's ring to this other guy, and you went out and checked that out and found that was totally untrue, right?

A. I don't think Michael Brown ever told us he sold it at the party.

Q. Tried to sell it.

A. I think he attempted to sell it, is what he told us before that, to an individual.

Q. Did you ever interview people that told you that - - well, let me ask you this, because this is kind of strange. You don't really do any background check of Mike Brown or interview any of his friends and relatives until early 1991. How come?

A. Interview who, sir?

Q. Well, you interviewed Dr. Stone, and you interviewed Rick Ford, Tameria James, you interviewed ten to 20 people in early 1991 trying to find out how credible Mr. Brown was in his stories, didn't you?

A. Those interviews were not conducted to find out the credibility of Mr. Brown.

Q. Why did you conduct them then?

A. Well, they were interviews made in an attempt to run down this ring.

Q. And in addition to the attempt to run down the rings you asked questions, did you not, before Michael Brown is arrested and before Jay Buckley is arrested and before Kathy Wilson is found, what is Michael Brown telling people, right? You had conversation with witnesses about that, right?

A. That information did come up, yes, sir.

Q. And as a matter of fact, you learned through that investigation you conducted in early 1991 that before Kathy Wilson's body is found, Michael Brown is telling people, we cut her head off - - I cut her head off and left her in a field somewhere, right?

A. Again Mr. Smith, I don't think that is a correct statement.

Q. What was he saying to those people when her body was found?

A. What you're referring to, he made a statement allegedly to several people, and as we interviewed them singly, some of the people remember him saying it, some of the people give a different version of it, but I remember one person making a comment that when they find her in a field, her head will not be attached to her body.

Q. Right.

A. That's entirely different than Michael Brown admitting he chopped off her head.

Q. She wasn't in a field and her head wasn’t laying in a field when you found her?

A. Yes, but what I am saying, they didn't say Michael Brown said that he chopped off her head.

Q. You also found out when you interviewed those people that Michael Brown had a habit of getting drunk and

laughing about the game he was playing with the police, playing bigshot thought it was funny as heck that the police thought he knew something about this, and he was making fun of you? Wasn't he?

A. Yes, sir, that was part of the conversation, yes, sir.

Q. Why didn't you check this stuff out before you arrested Mr. Buckley and find out Mr. Brown's credibility back in 1989 rather than early 1991? Is there a reason for that?

A. Mainly because that information did not come to us until we were involved in this investigation and through talking to different subjects, that information was brought to our attention, and at that time that's why the investigation continued to go almost up until the time of trial.

Q. But the point of it is Mr. Brown gave you these stories after you told him about the reward money. You didn't go out and check his credibility, you didn't go out and talk to his friends, you didn't go out and find out what kind of character or person he was. You jumped on it and made an arrest of Mr. Buckley, and it wasn't until you got worried about losing this case at trial that you went out and started to ask people about what kind of character Mr. Brown was, right?

A. That, too, is an incorrect statement.

THE COURT: Court will recess for 15 minutes.

(Brief recess taken.)

BY MR. SMITH:

Q. Did you get the twine?

A. (Indicating).
DEX127
(Item marked Defendant's Exhibit No. 127.)

Q. Mr. Herzog, I will show I what is marked for identification purposes as Exhibit 127 and ask if you can identify that.

A. It's a strand of twine or - -

Q. Do you think that has anything to do with the Kathy Wilson murder?

A. This right here (indicating)?

Q. Right.

A. No, sir, I do not.

Q. Why not?

A. Because this was obtained from Michael Brown several months after the homicide from his residence.

Q. Where is the one you removed at the crime scene?

A. Sir, I honestly don't know where that piece of twine is right now. To the best of my knowledge, I thought it was still at the crime lab down in Washington, DC

Q. Well, assuming you found a piece of twine at the crime scene, and assuming Michael’s statement that she was tied up with twine, and assuming it would match what he gave you with that exhibit, that would be a fairly crucial piece of

evidence in this trial, wouldn't it?

A. I think there is an FBI report that covers this twine being down there and examined. It was sent back by Mr. Malone. What I am saying to you is that the evidence itself, I believe that piece of twine is still at the FBI lab.

Q. How come the twine hasn't been admitted at trial? The FBI guy testified. How come you didn't admit the twine when he testified?

A. I can't answer that question.

Q. Could it be because the twine doesn't match the twine that Brown gave you?

A. Again it I don't think I can answer that.

Q. Could it be because the twine you found doesn't have any cut marks on it?

A. Again, sir, I don't know.

Q. No explanation. You can't find it, right? Do you have the photos of the shoes? Did you bring those?

A. Yes, sir.

Q. Where are they?

A. (Indicating) these are the photos taken at the crime scene of the shoes.

Q. Let's mark them.
DEX128
(Photographs marked Defendant's Exhibit No. 128.)

Defendants Exhibit No. 128 would be photos of shoes taken at the crime scene?

A. Again, that is a shoe sole, and the other one is listed as a shoe top.

Q. Right. Photos taken at the crime scene right?

A. Those are photos taken at the crime scene. That is correct.

MR. SMITH: Move for admission of Defendant's Exhibit 128, Your Honor.

MR. MASSA: No objection.

THE COURT: Admitted.

MR. SMITH: See this one photo here? See how it has got markings on it?

THE COURT: Who took these?

MR. SMITH: Your Honor, that is what I am going to ask him.

THE WITNESS: I am not sure. I was not there the day those photographs were taken.

BY MR. SMITH:

Q. Exactly. Right? You weren't there the day the photographs were taken, and when I showed you this photo, you first said that doesn't look like Pennsylvania police photographer work. That must be some other photographer, doesn't have anything to do with this case, right? You saw those numbers on that picture.

A. It's quite evident it's part of this case. It's so marked.

Q. Yeah. Quite evident to me when I showed it to you, but it wasn't evident to you. That's why you called Mr. Portzer in, wasn't it?

A. Here again, you were questioning the fact of the numbers on the bottom of the photo. The photos that we take that I am familiar with taken by the Pennsylvania State Police do not have the numbers that I am familiar with.

Q. Right, and when I showed you that photo you said that can't be our photo, that has numbers at the bottom, right?

A. Mr. Smith again, I think you are making a statement of what I said, and I did not say that. I said there is a difference in that photo in that there are numbers on the bottom of the photo.

Q. And you just admitted that you weren't there that day the photos were taken, right? Didn't you just say that?

A. I just said that, yes sir. I was not present when those photos were taken.

Q. Didn't you call Trooper Portzer in from the other room and ask him, are these photos in the Buckley case?

A. I don't think I called Trooper Portzer in at that point in time, no, sir.

Q. Did Trooper Portzer come into the room?

A. I don't believe Trooper Portzer came into the room at that time.

Q. Was Trooper Portzer in the other room, and did you yell out to him? Did Trooper Portzer say anything that day while you and me were discussing the photos?

A. I believe, and I could be mistaken, I believe Trooper Mechling was in the other room at that time and came in.

Q. Are you saying Trooper Portzer wasn't there?

A. I believe Trooper Mechling was in the other room and came into the room and looked at that one photo that has the numbers on the bottom.

Q. You were questioning whether these photos were from the crime scene, a trooper came in, told you they were?

A. Mr. Smith I was not questioning whether those photos were taken at the crime scene. We were discussing the numbers which are on the bottom of the photo and weren't on the other two photos.

Q. We will call Trooper Portzer in. So you don't have an explanation in the plea bargain agreement and subsequent interviews why you keep asking Michael Brown where the shoes are, right? If you knew about these photographs, you wouldn't be asking Michael Brown where is the shoes, would you?

A. Sir, I do not believe that those shoes are Kathy Wilson's shoes.

Q. Why would somebody take pictures and label them

shoe top, shoe bottom?

A. It is exactly what it says, a shoe top and a shoe bottom. Those photos do not indicate they are Kathy Wilson's shoes. We collected numerous articles at the crime scene. A lot of the articles we collected have nothing to do with this case. There were shotgun shells found, .22 casings found.

Q. Pieces of twine found?

A. As I said, there was all kinds of physical evidence collected at the crime scene.

Q. The Akeley intersection, you say you never told Michael Brown about that. Like I said, we have a police report that says something else, but it's in the newspaper where the purse is found, isn't it, at the Akeley intersection?

A. I believe that is correct; it was in the newspaper.

Q. So it wouldn't be no great Houdini act if Mr. Brown says I was at the Akeley intersection, because all of Jamestown knew shortly after she disappeared where the purse was found? right?

A. That's it was in the newspaper, yes, sir.

Q. Do you have any explanation as to why Michael Brown leaves the Riverside Road tale out of his story until after be is told that they showed him the wrong photos the photos of the Danny Boys T-shirt was not Riverside Road?

A. Again, Mr. Smith you are assuming - -

Q. It was not the campsite, excuse me.

A. - - that story, and that's not the way that story came about.

Q. We entered into evidence a police report where they had the photos in the wrong file and told him it was Buckley's campsite.

A. But your words are indicating that - - that's not the way that that incident took place.

Q. How did the incident take place; do you know?

A. How he was shown the photos?

Q. Yeah. Were you there?

A. Was I there? Yes, sir, I was there.

Q. All right. How was he shown the photos?

A. He was shown several photos, and there were several photos of the - - or of the campsite. There was also a few other photos that was in that pile, and when those photos were shown to him, the first photo that was shown to him was the white bank envelope. And at that time Mr. Brown stated to me, I don't have a bank account, and Jay William Buckley doesn't have a bank account. Then the photo of the yellow T-shirt was shown, and Mr. Brown said that photo is Jay William Buckley's. He didn't say that those articles were not at the crime scene or at the campsite. He made no mention of where those articles were. At that point in time I had no

idea where those articles were located. I then went out and attempted to find out who took the pictures of these two articles. And at that point in time after a few days of asking these several agencies involved, it was determined that Detective Paine from the Jamestown Police Department had, in fact, taken those photos. I was then - - had an interview with Detective Paine, and he explained to me the location of where these photos were taken, and with that information I went back and merely asked Mr. Brown, now, where did these - - where did these articles - - where were they left by you? And he at that time advised about the logging road and about them pulling in and about what transpired at that location.

Q. Is that a secretarial error on that exhibit we introduced where it says we told him it was photos from the campsite and he agreed? That would be a secretarial error, right?

A. That's solely his interpretation as far as the majority of the photos at that point in time were from the campsite.

Q. Yes. And you showed them and said it was, too, and he agreed with it. He didn't have no problem, right? Just like when he agreed with me when I told him a Dodge Warrior doesn't have a sliding door, and he changed his story and says, yeah, you're right, it opens?

A. I just explained what Mr. Brown said at that point

in time, and he did not agree or disagree with anything.

Q. He said he never told you this was Jay Buckley's. That's what he testified to up here. Is that true?

A. The only thing I can say is, Mr. Brown told me that upon he and Mr. Buckley leaving the crime scene, the blue bank bag in question was wrapped in that shirt, and that bag and shirt were placed underneath the front seat of the van, and when they stopped at the logging road, that he removed that shirt which was covering the bank bag, carried it back up the trail, and at that time eventually dropped the shirt and proceeded to get the articles out of the bags in exchange.

Q. That was a very nice dissertation; that's very detailed, too. The question is, yes or no, did Michael Brown tell you this was Jay Buckley's T-shirt?

A. He thought it was Jay Buckley's T-shirt.

Q. He told you it was?

A. Yes, sir.

Q. That is what the question was. Let me ask you another question. Did you ever call any of those places on the back of the T-shirt?

A. No.

Q. Did you ask how that T-shirt from Ohio would be distributed in Warren, Pennsylvania? Did you ever check into that?

A. No. sir I did not.

Q You don't know even today?

A. No, sir I do not.

Q. If I told you - - are you familiar with Mortimer's Pizza?

A. Yes, sir.

Q. And if I told you that Mortimer's Pizza, which is in Warren, is owned by the same people that owned Danny Boys, you wouldn't have any idea because you never called?

A. I already explained I did not call.

Q. And if I told you that Mortimer's Pizza gave 12 shirts out to their employees and Buckley and Brown never worked for them, what would you have to say about that?

A. That doesn't eliminate the possibility that Mr. Buckley obtained one of those shirts.

Q. Probably stole it from a former employee?

A. That's possible, yes, sir.

Q. Did you ever take - - have fingerprints done of the beer cans, liquor bottle and all this other evidence you're collecting and analyze for fingerprints?

A. Specifically?

Q. Anybody's fingerprints. Did you ever try to take fingerprints off that stuff?

A. No. You say of all the evidence, you mentioned the beer cans and beer bottles.

Q. Let's limit it to what evidence came into your

possession when you started investigating this case after you found the body.

A. The physical evidence that was found at the crime scene was all processed by the FBI. The evidence that we collected later on, it was all processed in one way or another by one agency or another.

Q. So they did all that, right? Did you take dirt samples of the crime scene area?

A. Yes.

Q. Did any dirt samples match with anything Buckley had, on any of the boots or other thousand items you took from him?

A. I don't know. The last that I remember the dirt samples were not back from the FBI lab yet.

Q. Well, you know we are kind of at trial. Why don't you call them up and say we are going to trial, we kind of need the report and that stuff?

A. Well, we did call the FBI several times in an attempt to get that information, but the FBI is running with one expert doing dirt samples, and evidently our evidence was not on the top of their priority at that point in time.

Q. When did you submit that evidence to the FBI?

A. The exact date I can't tell you.

Q. Approximately, what year? What month?

A. I believe it was in 1990. I am not sure of the

date, Mr. Smith.

Q. You submitted all the crime scene articles to the FBI after you recovered the body and stuff?

A. It wasn't the next day. It was a period of - -

Q. A couple months?

A. At least a couple months, yes, sir.

Q. So that would give them, geez, almost be two years, and they still don't have a report back or anything?

A. Again, Mr. Smith, you are going to have to contact them. I can't tell you the reason they have not submitted us a report on that; I don't know.

Q. It couldn't be they told you we can't find anything that matches Jay Buckley to this crime of what you submitted to us?

A. If you're asking me if that is a question they told me, absolutely not. They have not told me anything.

Q. You say that a lot when you say I didn't do it, they didn't tell me. From now let's confine that to your knowledge. In other words, anybody in your agency, any other trooper that worked with you, things like that, okay. You said that you didn't tell him about the Akeley intersection, but Mr. Tridico did. It's in the reports, right?

A. Pardon me?

Q. You said you didn't tell him about the Chautauqua Mall witnesses and the Akeley intersection but Mr. Tridico

did. It's in the reports, and you know he did, right?

A. Mr. Smith some of these reports, as you went through them, were not in order as you presented Mr. Brown. Some of the interviews that we are talking specifically of different locations and different areas, we had talked to Mr. Brown previous to that, and he had already told us that information, and we were just going over with what he said.

Q. Did you have an DNA test performed on the hairs?

A. Did I?

Q. Yes.

A. No, sir, I did not.

Q. We have been asking for one, haven't we?

MR. MASSA: Your Honor, may it please the Court, I believe that was covered on a motion in limine. It was addressed in chamber conferences. The Court made a ruling on that and ask the Court to take judicial notice of that and the ruling that the Court made. That is not germane of a proper line of questioning in counsels opinion.

MR. SMITH: I don't recollect any motion in limine saying I can't ask questions about DNA tests Your Honor.

THE COURT: Well, specifically that's correct, Mr. Smith. The Court did not rule you could not interrogate in re DNA on hair.

MR. SMITH: Right.

THE COURT: Okay, but we did cover that issue in

chambers, and the Court did resolve the availability or unavailability and the time frames in acquiring it for trial and in terms of the defense, right?

MR. SMITH: Yes, that's true.

THE COURT: Now you're asking this officer if he, which now we know he does not know himself, but within his knowledge, if there was ever any such testing performed, but you know that wasn't done.

MR. SMITH: It (sic) that's true, Your Honor.

THE COURT: So I am wondering about the probative value that in light of what the problem was and why it wasn't done and, in fact, Mr. Malone says, you know, it was hair roots, and you had testimony there wasn't at first, or he had evidence it wasn't, but that was a conflict. Anyway, in resolving that conflict, that would probably be proper, but otherwise, it's sort of moot.

MR. MASSA: Thank you, Your Honor.

THE COURT: So I guess for the record, unless you can add to that, Mr. Smith, the Court sustains the objection.

MR. SMITH: I will move along.

BY MR. SMITH:

Q. Do you have any evidence of blood stains in either the dirt, vans, any areas anywhere else?

A. Not to my knowledge no, sir.

Q Let me ask you this. If you knew the exact

location where she was killed according to Brown, and assuming she was stabbed and assuming she bled to death on that dirt or died right away and then continued to bleed, even two or three years later, couldn't you dig up the dirt that is there and through some type of analysis find out whether there is blood on that dirt?

A. The only thing I can answer to that question is what Mr. Malone said about blood and how it dissipates and is no longer there. I personally am not a technician. I don't know how long blood stays there.

Q. But you never did that?

A. Pardon me?

Q. You never did that, tried to test for that or anything?

A. Again Mr. Smith, we are dealing with, as you say, a time lapse, and I am not sure that as you're digging through the ground digging up remains whether you would see quote, a spot of blood. I don't think that's - -

Q. Let me ask you this. On Lindell Road, right? Lindell Road. You checked out the road. More houses there today and more houses in April of '91 than what there was there in May of 1988, right?

A. I think I'd be safe to say there was a trailer on that road.

Q. Let's try yes or no.

A. You're asking a question?

Q. Let's try yes or no and then you can explain. Is there more houses on that road today than what there was in May of ‘88?

A. More houses?

Q. Yes.

A. Yes.

Q. Thank you. Now you want to explain something about that?

A. Yes. In my recollection of the area then and now, there was an area where there was a single trailer that has been replaced by a new home, that being the only new home that I am aware of on that road from the time of the crime.

Q. Part of your investigation in this case is investigating Ron Brown, right?

A. Ron Brown was interviewed.

Q. Right. You went to his school and got his school records, right?

A. That is correct.

Q. Found out he is missing May 19 and 20 from school, right?

A. I believe when I checked I checked for the date of May 18, which was the date of the crime.

Q. They gave you the whole week, didn't they? Do we have to go through the school records here?

A. Sir, as I stated to you, I checked for the date of May 18, and I was told by the school - - both schools that he was in school that day.

Q. Let's try this again, okay. To your knowledge, yes or no, do you know whether Ron Brown was in school May 19 or May 20, yes or no?

A. No.

Q. So you don't know?

A. No.

Q. Okay. And you didn't know that Ron Brown went to two schools that day on May 18 until I told you, did you?

A. I believe that is correct.

Q. Yeah. You went and checked out the school where he goes in the morning, and nobody told you that, hey, he leaves school and goes to another school in the afternoon, right?

A. I was told when I checked the Falconer High School that Ron Brown was in school all day that day.

Q. Turns out that he wasn't in that school all day actually he goes to Boces in the afternoon, right?

A. That's correct. That is a vocational school on the other side of the county, part of the school district.

Q. Where is Boces exactly located? Here is Falconer High School, and then Boces would be where (indicating)?

A. I have no idea.

Q. If I told you it was by the Chautauqua Mall; do you know?

A. I have no idea where Boces is located.

Q. And assuming Mr. Brown - - well, let me rephrase that. The high school that Ron Brown goes to, right, do you know where its location is in Falconer?

A. Yes, I do.

Q. And you know where Ron Brown and the Brown family house is in Falconer, right?

A. That is correct.

Q. And you know where Marine Bank is in Falconer, right?

A. Marine Midland?

Q. Yes, the one we are talking about that she drove in?

A. Yes, I do.

Q. Is it not true if one was walking from the high school to the Brown residence, that it would be right on the way where Marine Bank is?

A. It depends on the path that the subject would walk.

Q. (Indicating) Falconer High School where, right there?

A. That's correct, right there (indicating).

Q. Marine Bank, where?

A Right there.

Q. Brown home, where?

A. Right here (indicating) .

Q. Okay, so if - - this is the main entrance to Falconer High School right near main drag?

A. That is correct.

Q. So if one is going home and walking down this street here which is called Falconer Street, right, (indicating) they are walking right by the bank, aren't they?

A. They can walk this way (indicating).

Q. They can go over and come down around this way, right? But if you were walking down the main Street it goes right by the bank?

A. Here again, it depends on which way you're walking, where you are going to end up.

Q. Do you know when time he leaves school to go to Boces?

A. No. sir, I did not.

Q. You didn't check that out?

A. No, sir, I did not.

Q. The van was fingerprinted for Ron Brown's fingerprints, right, the victim's van?

A. If you're asking if they did a comparison between the partial prints they obtained from the victim's van and Ron Brown I believe that is correct.

Q. Any matches to your knowledge?

A. To my knowledge, there was no match on anyone submitted.

Q. Do you have an explanation why no matches on anyone submitted?

A. If you're asking for my opinion, it's probably a fingerprint, number one, of the victim, or one of her children, and/or it's a partial print that there were not enough characteristics for the match.

Q. Let me ask you this. This kind of bothered me. If one was taking fingerprints and I assume the purpose of taking fingerprints is to look for who did it, right?

MR. MASSA: I am going to object. I believe Mr. Smith is inquiring about the victim's van.

MR. SMITH: That's right.

MR. MASSA: Officer Timothy Johnson from the Jamestown Police Department processed that and testified at considerably length on this very point.

THE COURT: Yes, he did, but now addressing your objection to the question to this witness you mean that is precluded? Is that what you're - -

MR. MASSA: No, sir. He stated he didn't process it, and he is not a fingerprint technician.

THE COURT: Well, he hasn't said that yet. I don't know anything about that. It's overruled.

MR. MASSA: Excuse me, Your Honor.

BY MR. SMITH:

Q. The purpose of taking fingerprints from the victim's van was to find out who killed her, wasn't it?

A. I am not sure that's - - they were checking for any type of physical evidence. As in this entire case, just because there is a fingerprint in there, it does not mean it's the fingerprint of the person that participated in this crime.

Q Sure. I didn't ask that. But I asked why are they fingerprinting? Why do you fingerprint stuff? You're looking for the guy who did it in any crime. That's why you're taking fingerprints, isn't it?

A. You fingerprint to get a fingerprint. You process a scene to obtain a fingerprint.

Q. Why are you looking for fingerprints? Why do you take fingerprints? This is not a hard question.

A. You take fingerprints to obtain a fingerprint to match them against a suspect or a person that might have been in that van.

Q. Right. Right. Do you have any explanation as to why they wouldn't fingerprint the Wilson family to exclude them from the van?

A. I can't answer that. You would have to ask the Jamestown Police Department or members of the task force.

Q You dealt with the purse, and that was found in

Pennsylvania and turned over to your jurisdiction, and there was fingerprints found in there, and you are saying they didn't fingerprint the Wilson family to exclude then, either, right?

A. Again, the purse was recovered factually in the state of Pennsylvania. The purse was then turned over to the Jamestown Police Department.

Q. So you don't know anything about that. We will ask - -

A. Pardon me?

Q. We will ask Mr. McCoy when he comes down. Do you know Don Foster?

A. Yes, I do.

Q. He is in jail during all this time, right?

A. That is correct,

Q. As a matter of fact, at one point he comes to you or he comes to members of your agency and says Buckley admitted to me he did it, right?

A. I am not sure he used those words, but he said something to the effect that he might be able to obtain information for us about this crime.

Q. You have had numerous - - over the last two or three years, you have had numerous people come to you and say hey, we can get you information, get us a deal, let us out of jail and we will get Buckley for you, right?

A. He talked to several people from the - -

Q. And eventually the truth comes out, and Mr. Buckley didn't say anything to them, and they are just trying to get out of jail early right? True?

A. I am not sure that Mr. Buckley did not say anything to Mr. Foster.

Q. Mr. Foster is now saying that was his plans wasn't it, to get out of jail early?

A. I think at that point in time Mr. Foster's motive was to get to Florida to see his wife who was involved in a very serious accident.

Q. Okay. Whatever. You checked out Ed Foster in this case, too, right?

A. That is correct.

Q. As a matter of facts his prints were ran against the van right?

A. That is correct.

Q. Negative results, right?

A. That is correct.

Q. And found out Ed Foster is not in the area on May 18, '88; driving truck in New Jersey right?

A. If you're asking me if we ruled out Ed Foster, that is not correct.

Q. Did you find out where Ed Foster was on May 18, ‘88?

A. Yes, sir, the last delivery that he made was shortly after midnight in the state of New Jersey, and it would have been possible for him to be back in the state of New York late afternoon on 5-18-88.

Q. Late afternoon?

A. That's correct, yes, sir.

Q. Do you have any information that he drove his truck back from New Jersey to here on that day or arrived home late that afternoon?

A. I merely stated it would be possible for him to be back in this area at that time.

Q. Do you have any knowledge or information he was?

A. No, sir, I have no knowledge.

Q. Ever find a note or find any information about a note from Ed Foster that substantiates what Mike Brown told this jury?

A. No, sir, I found no note.

Q. And you looked for that too right?

A. I interviewed Mr. Foster.

Q. Denied there ever was a note right?

A. He denied knowing Mr. Buckley except as a - - by name and advised us that he was not a friend of Mr. Buckley.

Q. And you found that out to be true really. Don Foster is the friend of Mr. Buckley. Ed Foster doesn't particularly like him. You found that to be true didn't you?

A. I found there was a good possibility that Ed Foster and Mr. Buckley were friends.

Q. You don't feel in your opinion in dealing with Mike Brown that Mr. Brown could possibly be boxed in at this point in time, these numerous lies that he told you, there was a certain point in time when you got a little tired of it, wasn't there?

A. Yes, sir.

Q. And you went to the district attorney and you and the district attorney got together and threatened to pull his plea, right?

A. I think that was done, yes, sir.

Q. Threatened to charge him with Murder One, right?

A. I think if you recall, he was already charged with murder, accomplice to kidnapping and accomplice to rape.

Q. That's correct, threatened to pull his plea and prosecute him on those charges he had already been charged with?

A. That is correct.

Q. And when you threatened that, you said you want the truth now, and if you don't tell the truth we are going to go after you, right?

A. Basically that's correct.

Q. And then he proceeded to lie to you more after that, right?

A. (Pause.)

Q. Right?

A. There were some lies told to us, yes, sir.

Q. Well, the campsite story and the switching from Chautauqua to Quality and all that other stuff came after those threats on the plea, right?

A. Well, again, and I have stated this before, the main fact, the main concern, of myself is the truthfulness at the crime scene in the state of Pennsylvania. I think technically, the crime did not occur in New York State and what occurred at that point in time in New York State is - -

Q. So you don't care whether he is lying about New York State as long as he is telling the truth about Pennsylvania?

A. I did not make that statement, Mr. Smith.

Q. What are you trying to say by what you are saying there?

A. I am not sure I - - what I am saying is, I feel that Michael Brown basically from the start has been true and correct about the crime scene and where the crime occurred. It's my opinion that he has minimized - - or has minimized his position in New York State.

Q. Did you ever read a report prepared by Dr. Charles Steinmeyer, a psychologist who analyzed Michael Brown?

A. I was aware of that report, yes, sir,

THE COURT: See, I am starting to interfere. That's some of the problems here. That was a question you can answer yes or no, and if you just answer the question yes or no if you can, and if you can't just say well, you don't know. But after you answer the question categorically then you can make an explanation. If you trail off on your explanation first, we really don't get an answer, and that's what's holding us up a little bit.

THE WITNESS: I'm sorry, Your Honor.

THE COURT: That's all right. I wanted to remind you.

BY MR. SMITH:

Q. You are aware of Dr. Steinmeyer's report?

A. Yes.

Q. You are aware in that report Dr. Steinmeyer says that Michael Brown tells him he is doing this for the reward, right?

A. Yes.

Q. And you are aware in that report that Michael Brown tells him how he knows about the crime scene, right?

A. (Pause.)

Q. Doesn't he tell him in that report, they took me to the crime scene, I saw the flags and told them that's where she was?

A. I would have to see that to refresh my memory. I

can't honestly say what was said about that.

Q. You never heard that before? that Michael said that to someone else at one time or another, they took me to the crime scene, I saw the flags, that's how I knew where the body was at?

A. That's possible he could have said that to someone else, yes, sir.

Q. He has recanted his testimony on numerous occasions throughout - - since October '89, right? Not only to Dr. Steinmeyer, but in July or June of 1990 to you at the Holiday Inn right?

A. Sir, he never recanted that story to me at the Holiday Inn.

Q. Recanted it to somebody else that you became aware of.

MR. MASSA: Your Honor, may we approach the bench, please?

(Off-the-record discussion at side-bar.)

BY MR. SMITH:

Q Officer Herzog, did he recant his testimony to anyone else at that time that you were aware of?

A. Yes.

Q. And he said, I did it for the reward, I wasn't there, that's the general deal, right?

A. I believe that's the general - -

Q. So periodically Mr. Brown has said, geez I wasn't there, I am doing it for the reward, I pin it on Buckley, and when he says that, you tell him, you drop the ball now, it’s Murder-One, we are going on you, right?

A. Yes.

Q. And the other problem is, you're both in bed together, and neither one of you can leave, right? Biggest murder case in Warren County ever to hit the pike, you're the lead investigator, you make an arrest based on lies, and Michael Brown is your star witness. You can't get away from him any more than he can get away from you, right?

A. That arrest was made on physical evidence along with the statement of Mr. Brown.

Q. The same statement of Mr. Brown and the same testimony of Mr. Brown which you admitted yesterday contained numerous perjuries to this jury right?

MR. MASSA: Your Honor, that question has been asked and answered several times.

THE COURT: Yes, it has. Sustained.

MR. SMITH: No further questions.

REDIRECT EXAMINATION

BY MR. MASSA:

Q. Mr. Smith asked you whether you seized ahold of this case to make your career. Did you volunteer to be the lead investigator in this case?

A. No, sir, I did not.

Q. Will you get a promotion or bonus if this jury returns a verdict of guilty against Mr. Buckley?

A. I will not.

Q. Will you be demoted? transferred, if you do not obtain a conviction?

A. No, sir, I will not.

MR. MASSA: No further questions.

MR. SMITH: Mr. Herzog, will you be substantially embarrassed if you don't get a conviction in this case?

THE WITNESS: No, sir, I will not.

MR. SMITH: No further questions.

THE COURT: You may step down.

MR. MASSA: Commonwealth rests, Your Honor.

MR. SMITH: Approach the bench, Your Honor?

(Off-the-record discussion at side-bar.)

THE COURT: Ladies and gentlemen of the jury at 11:20 the Commonwealth has rested its case in chief which means that at this point the defendant has the right to come on with the defense. I have got to entertain some motions in chambers. I am going to recess you at this point to return at 1:15. Court will recess.

(The following in-camera proceedings with the Court and counsel present commenced at 11:35 a.m.)

THE COURT: Here we are in chambers. Motions.

MR. SMITH: Defendant at this time would move for the demur on several grounds. First of all, we think the evidence clearly indicates the defendant's constitutional rights have been violated with regard to his right to due process. The evidence indicated he was initially arrested with regard to false allegations. He was bound over for trial on perjury. That perjury was committed at the time of this trial; that the evidence presented against him at this trial came from an incompetent source to wit, Michael Brown.

That in addition to the evidence and the sole evidence against Mr. Buckley committing this crime being Michael Brown's testimony and that being incompetent that his constitutional rights and due process having been violated throughout the entire case.

In addition, we would point out there is possibly misconduct in this case in that discovery was not provided to the defendant of the inculpatory statements, the incantations (sic) of Michael Brown both at the Holiday Inn and other days including the Steinmeyer report.

In addition, we would request that the case be dismissed on the grounds of prosecutorial misconduct on the basis that the district attorney was aware of perjuries committed at trial and failed to advise the Court of said perjuries. In addition, we would argue that the evidence that competent evidence presented at trial held in most

favorable light cannot sustain a guilty verdict of the defendant.

MR. MASSA: Your Honor, Commonwealth respectfully moves the Court to deny the demur on all grounds stated. There has been no prosecutorial misconduct. Dr. Steinmeyer testified in open court on the certification hearing. That report is part of the court and record. Without reviewing it at this time, Commonwealth has no recollection as to the assertions raised by Mr. Smith. Commonwealth submits that the constitutional rights of the defendant have been judiciously protected by this Court, and the Commonwealth further states that the evidence taken in its best light, as it must at this stage on a motion for demur, presents sufficient evidence to go to the jury. Commonwealth further states that there has been no prosecutorial misconduct, and for those reasons requests that the motion for demur be denied.

THE COURT: Okay. when the Court is considering a demur at the close of the Commonwealth's case in chief, the Court must accept as true all of the facts to the point of the demur and all of the fair inferences that flow therefrom and then determine as true whether those facts and those fair inferences support a verdict of guilty as charged. That's the legal test.

Now, the Court accepting all of the facts as presented by the Commonwealth to this point and all the fair

inferences therefrom has before it in the main, the testimony of Brown, circumstantial evidence, and third, the testimony of other witnesses for the Commonwealth as to the conduct of the defendant on the date of May 18 of 1988 and subsequently to date of trial.

Now, first, as to the defendant's constitutional rights being violated that, of course, is a question of law. It's not one of fact for the jury, and it's a question of law. That portion of the demur (sic) is bottled in the Commonwealth's perjured witness, Brown, couched in the plea bargain and/or protected by the plea bargain, and in that respect, coupled with Brown's recantation through the testimony of Officer Herzog at the Holiday Inn.

Nonetheless, in the Court's opinion, leaves a question for the jury to consider if that testimony is worthy of belief and not for the Court. And if the jury finds it's worthy of belief, then in the Court's opinion, that testimony of Brown alone would support a conviction as charged. If, on the other hand, the Brown testimony is completely excised, then there is other circumstantial evidence that, in the Court's opinion, and the fair inferences therefrom, could support a verdict of guilty as charged.

The latter, in the Court's opinion, very candidly is wobbly, very weak. But at this point the Court cannot, as a matter of law, excise the testimony of Brown, and that is

still coupled with the other testimony and the circumstantial evidence. Also the record should show that the Court ordered Brown to be psychologically examined to determine whether or not he is a psychopathic liar. That report is not yet in. And the Court has to consider that at the appropriate time. Therefore, Court rules the demur (sic) is denied.

(Incamera proceedings were concluded.)

(Lunch recess taken.)

(The following in-camera proceedings with the Court, counsel and the defendant present commenced at 1:15 p.m.)

THE COURT: Let the record show that the defendant is in chambers this date of 1:15 with his counsel, Mr. Smith, the district attorney. Mr. Buckley, the reason I asked you to come in is that when we selected your jury in Beaver County, one of the jurors, Mrs. Chimo (spelled phonetically), Juror No. 3, expressed at that time that she had a baby-sitting problem, a hardship problem in that she did not have a baby-sitter. She was compelled to bring her mother from Texas, and that has all been done, and she have has been here through the course of this trial to this point. Your counsel, Mr. Smith, has told me that you have no objections to releasing Mrs. Chimo at this point and for the Court to use the next alternate in her place; is that correct?

THE DEFENDANT: Yes sir.

THE COURT: Do you have any objection to releasing Mrs. Chimo as a principal juror?

THE DEFENDANT: No, I don't.

THE COURT: Very well. That's all.

(In-camera proceedings were concluded at 1:20 p.m. to commence in open court at 1:30 p.m.)

MR. SMITH: Call Leslie Trumbull to the stand, Your Honor.

LESLIE TRUMBULL, called as a witness, was sworn and examined, testified as follows:

DIRECT EXAMINATION

BY MR. SMITH:

Q. Please state your name and address for the record.

A. Leslie Trumbull R.D. 2, Russell, Pennsylvania.

Q. You are going to have to keep your voice up. It's hard to hear in the courtroom. Are you currently employed?

A. Yes, I work for WCA Hospital in Jamestown.

Q. Let me draw your attention back to 5-18-88. Were you working at WCA Hospital on that date?

A. No.

Q. Where were you working on that date?

A. I was laid off at the time. I was doing a carpenter job on my own.

Q. Where were you doing the carpenter job at?

A. In North Warren.

Previous INDEX Next

The Village Law Review

Trial Testimony of JOHN HERZOG (PA State Police Investigator - Head of PA Task Force)
Vol - - (#20) pp. 3 - 85 \| Friday, May 24, 1991 \| Jenny Cataldo