This trial started November 24, 2003 and is ongoing.

March 22, 2004
by
Hilary

9:15-ish am
Roger starts this morning.  Inspector Schwartz is on the stand. He’s looks stately- gray hair, gray suit.  Schwartz is talking about the RCMP’s undercover operations targeting Burns and Rafay.  The RCMP was intent on getting them to cooperate by gaining their trust, trying to get them to cross border to US of their own volition (not sure of exact context right here).  They installed listening devices in the boys’ home on Phillip Avenue.  Schwartz was in charge of the "monitor room."  He says they were trying to "gain a sense of the type of individuals" Atif, Sebastian, (and I’m pretty sure) Jimmy Miyoshi were.  Getting to know the targets, and honing in on their interests and personalities helps the undercover officers plan “scenarios” that would actually be effective and get the boys engaged.  Schwartz noticed they had no jobs, and were quite active through late night hours.  They went to sleep as late as 3 or 4 am, and slept until afternoon.

I notice that Marc has gotten a haircut.  And Bob is back from vacation.  I also notice several people blocking the door when I came in this morning: an older man and woman with two younger men.  Family? They whispered as I came by, then came into courtroom and sat towards back.  My theory is that they didn’t know they could come in until I went by, thereby demonstrating that it was ok.  After all, there wasn’t a single other person in the courtroom watching until I came in. 

Song walks up for redirect.  Schwartz confirms that undercover units aim to create a "make-believe world" that must appear real to the targets.  He agrees that the hierarchical crime world scenario used on Burns and Rafay must be believable to the targets for success.  (Please note that all of these statements, unless otherwise noted, are taken from Schwartz's responses to Song's questions.  I just get tired of saying "he said" over and over).  The undercover officers must dress as criminals and lie convincingly.  They also used props to make scenarios more real.  They also made sure AR and SB believed that the “mobsters” either killed people or had the ability to have people killed, including witnesses to crimes.  Violence was demonstrated to be “part of the job” to these “mobsters.”  The mobsters also made AR and SB believe they had the ability to control whether or not people went to jail.  People under the Sergeant (the term which I am using instead of his undercover name, which can’t be published, and it makes it more fun this way) had to remain loyal & obedient to him, or else they could be dropped from the organization, or "dealt with."  People below the Sergeant, if they received criminal information on him directly from him, could be seen (in the make-believe world) as especially dangerous to the Sergeant.  People with damaging information could be a threat to him, and he makes it clear to all those below him in the criminal hierarchy (including SB and AR) that their respect and loyalty is demanded (Schwartz doesn’t concretely confirm or deny this, but it is strongly suggested by the questioning).

Props used in the scenarios: cars, money, hotel rooms, real injuries, bank accounts, deposit slips, guns.  These props are used to add to the “appearance of reality” in the scenario.

April 11, 1995, Scenario 1: The Corporal (the term I am using for the other RCMP officer-posing-as-gangster) locked his keys in his car, a then-new 1995 Trans Am, and enlisted Sebastian to help him out.  He and Sebastian went to a 4-star hotel, where he ostensibly needed to retrieve another set of keys.  The RCMP chose these things purposefully to show Sebastian that the Corporal had money. They had a conversation in the car and the hotel.  Together they went to meet the Sergeant (or the Sergeant happened to be where they went- Schwartz can’t remember which).  The RCMP decided to drive Sebastian to a strip club for this meeting.

April 13, 1995, Scenario 2: Second time Sebastian met the Corporal and Sergeant.  This scenario was intended to ascertain if SB was “open to becoming involved.”  They also hoped to get SB involved in criminal activity.  Schwartz says they set up the scenario to make it "easier (for Sebastian) to go down that road"- meaning Sebastian would be put in a situation where committing a crime would be easier (or would be the only option that would make sense for him to act on).  The RCMP also selected an “easy” crime to start out, at a location and in a situation that would make him more likely to comply.  Song suggests that's why the RCMP chose Whistler for a stolen car scenario, instead of remaining in Vancouver where Sebastian could simply go home if he wasn’t interested.  The Corporal drove him there, and then said the only transportation for him going back was if he drove a stolen car. 

Props in car: baby seat and children's toys.  Song suggests that they wanted SB to know that he was dealing with criminals who see nothing wrong with stealing a car from a family.  Schwartz said that the family car (meaning the car model, not explaining the props inside) was ideal for driving from Whistler to Vancouver without arousing any suspicion from the police.

Scenario 3: The Corporal drove a Corvette to again show Sebastian he had money. Someone named Christine joined this scenario.  Her manner of dress is described as sleazy and provocative.  Song says she is shown to be a "commodity," by the Corporal paying her $3,000 in 100-dollar bills in front of Sebastian.  Song is going over all the details, attempting to show how the RCMP strategically chose props, locations, characters, etc., to make SB think certain things; to build the “aura of the criminal underground.”  They drove the Corvette, a 2-seater, to the Four Seasons Hotel.  The RCMP’s choice of vehicle means the commodity woman had to sit in SB's lap. The woman was sent away, and Sebastian and the Corporal were alone in the hotel room for 11 minutes.  There was a knock at the door, and a “biker” character (motor, not pedal) entered.  He was stocky, muscular- playing the part of a street-level criminal.  (I notice at this point there are quite a few spectators sitting in: an older man who I later learn in conversation with him is the employer of one of the jurors, reporters, a lady I’ve never seen before).  The Corporal and the biker showed Sebastian guns for “high-impact.”  Schwartz explains that gun control in Canada much stricter, and brandishing a gun or possessing one is taken much more seriously.  Revealing the weapons in front of Sebastian would ensure that he took their mobster claims seriously.  The guns were 9mm semi-automatics, not revolvers.  Song asks the judge if a 9mm can be shown in court.  Roger says "You're not going to be handling it are you?"  Everyone laughs, including the jury. Schwarz is saying 9mm's with 15(or was it 19?)-bullet clips aren't more dangerous than a revolver, though they do allow the gunman to spray bullets, then reload in one fell swoop rather than bullet-by-bullet.  Song points out that Sebastian had never before expressed interest in guns.  The biker brought in $250,000, which Sebastian, the Sergeant, and the Corporal counted out together.  Schwartz agrees all these things were done to create a world, believable to Sebastian, where these people had access to guns, money, and women, and where violence was acceptable.

Marc starts redirect on behalf of Atif.  During surveillance, there was NO incriminating conversations or evidence gathered.  Apparently, there were also wire taps on SB and AR’s friends and family.  The surveillance of the Phillip Avenue house contains no confessions, and no indirect admissions of guilt either (though they sometimes discussed their alleged involvement, conversations that Schwartz says were “of interest”).  The RCMP broke into the house to install bugs.  They stole their car while they were at a movie.  This is not atypical of RCMP undercover operations, though Schwartz says they try to get cars back unnoticed.  If they can't bug it fast enough (say, within the span of a movie), they have to fake a stealing and dumping of the vehicle.  They opted for stealing the car at a movie theater rather than bugging it in their garage for “greater believability.”  This type of approach (damaging personal property) in Canada now requires additional authority/authorization than it did in the mid-90’s. 

Break
I come back from break, and the older couple is still here with the younger men.  I am convinced one of them is familiar to me: he looks exactly like someone I used to work with in 1998, at Future Shop, a Canadian retail electronics giant.  Really, this group of spectators is unusual only because they stay all day- unprecedented! The defendants are brought back in.  Atif looks at the spectators, then smiles as he turns back to say something to Marc.  James, Schwartz, and Detective Thompson come in.  Bob shuffles around, doing his clerking duties.

It’s Roger's turn again.  He’s asking about the structure of the undercover operations.  Schwartz is saying that, as an investigator, he defers to the officers working undercover.  The expense and seriousness of the scenarios means they have to be meticulously planned by experienced undercover officers to gather the greatest possible amount of evidence in a manner admissible in court.  Schwartz also explains that there are guidelines for undercover operations that govern how far they can go, how violent they can be to make it real etc.

During their "intercepts" (taped conversations from bugs) the RCMP learned personal things about the defendants; like that AR wouldn't be going back to Cornell right away.  The impact of props on SB and AR could also be expressed on the intercepts, so the RCMP could gauge if the scenarios are working, not working, what might be more compelling to the defendants, etc.  Intercepts happen before, during, and after scenarios.  Schwartz is now officially excused from the case.

At this point the court reads a statement regarding a woman's testimony that will come up: she works for Disney, states that the Lion King came out 6.26.94.  Then we’re out for break. 

Break
I chat with Marc and Veronica on way out regarding my own future career in law- or lack thereof, as I have again been rejected by the University of Washington School of Law.  Lunch is extra long today- 11:15-ish to 1:30.  On the way back in, I have a nice chat with Bob Thompson (waiting outside).  I go into courtroom when it’s unlocked at 1:30.  The older couple and young men are there already.

1:40: The defendants are brought in.  Atif is carrying a large manila envelope in his cuffed hands, behind his back.

1:45: Roger comes in, the last attorney to arrive.  A woman with a little girl sits in my row.  The little girl must be getting a lesson in court proceedings (is it bring your daughter to work day?).  The Judge comes in.

1:53: Jury enters.  Roger calls Dr. Edward Thomas Blake from Richmond, CA. forensic serologist with 30 years experience examining biological evidence.  He is a Partner and Co-founder at Forensic Science Associates.  He founded the FSA in 1978. His specialty is forensic biology, and he is a true DNA forensics pioneer.  In fact, the more he talks the more he looks familiar to me.  I become convinced there’s a shot of him on the introduction footage for Forensic Files on CourtTV (I'll have to watch an episode to see if I'm right).  Moving on…Dr. Blake is going over other details of his experience to demonstrate his expertise.  There are lots of spectators in the courtroom at this moment.  An older, lawyerly looking man whom I've seen before comes in, and a young brunette woman also sits towards the back. Dr. Blake is explaining earliest applications of DNA testing for forensics, and the different technologies used.  RLFP-technology required a larger sample, like a full drop of blood.  Sensitivity improved, but this method was not as useful in forensics as PCR technology.  These apparently are the 1980's-90's technologies that were used at the time that BPD came to him for help.

Blake is explaining PCR technology for DNA testing.  The DQ-Alfa gene was the first gene to have PCR applied to it.  Around '94 the "polymarker system" allowed greater discrimination, though it did not yet enable us to discern between everyone.

Dr. Blake is giving the jury background on the history of genetic mapping and identification, explaining the different types of technologies used, when and where they developed, the advantages and disadvantages of each, etc.  He explains short tandem repeat genes, or STR genes, which are "spacer" genes that are highly distinguishable.  This technique was developed in Europe.  The invention of PCR has completely changed the field.

RLFP: this technology was at one time considered more discerning, highly discriminating.  Sensitivity was a problem though- a fairly large genetic sample was needed.  Blake did not use RLFP in early 90's, including for this case.  It is now obsolete to the PCR technique.

Dr. Blake's lab does work for both defense and prosecution, with possibly slightly more for defense.  His lab charges $175 per hour, due to high lab overhead costs.  The typical cost of a sex crime case is about $5,000.  This case cost about $20,000. 

Dr. Blake looks over Exhibit 499: slides and photos.  Exhibit 499 is admitted.  Roger puts a slide onscreen reading June 30, 1995.  Dr. Blake worked with Jeff Baird on this case, and began receiving evidence via FedEx in April of 1995.  Slide 499B is shown: a secondary reference sample for AR.  A secondary reference sample is a sample not originally intended to be a sample; such as if someone leaves a sample of their DNA and/or if it's collected unbeknownst to the sample-ee.  Dr. Blake received napkins from Sebastian Burns’, and hairs from Basma's shirt and sheets, Tariq's sheets, hairs from downstairs shower drain cover and the floor.

499-C: This is the secondary item from Burns, the napkin he blew his nose on in N. Vancouver on 3-05-95.  It occurs to me that this situation must be extremely humiliating for the defendant- who has to see a snot rag from 10 years ago projected onscreen, while knowing that officers who trailed him plucked it from a trash can after he unwittingly tossed it there in a public place.

499-D: This is the napkin reference sample laid out, with the useable material cut out.  Dr. Blake explains how evidence is tracked and organized in his lab.

499-F: This is a microscope slide of a hair. Dr. Blake is explaining that hairs without root material attached aren't useful for nuclear PCR testing.  Shaft of hair can be used for less precise testing (mitochondrial only; there must be cells with nuclei present for DNA testing).

The next slide shows hair under microscope with root and attached tissue, followed by a slide of the shaft only.  He's telling us about the medulla- a channel running down the middle of a hair, which is thinner in humans than in animals (we get an animal biology lesson here).  Next slide is the tip end of a hair. Testing requires a 3mm piece of root end of hair, and adjacent piece of hair shaft (to make sure there's no one else's genetic material on the hair to muddle the reading of the first individual’s DNA profile) for DNA extraction. When asked if human DNA is limited to bodily secretions, Dr. Blake says it is only found in cells with a nucleus (epithelial cells are a big help in this regard).  In hair, the shaft of the hair has no cells with nuclei, but does have mitochondria, from which one cannot create quite as precise a genetic profile.  Everyone in the maternal line of inheritance has the same mitochondrial DNA.  Dr. Blake doesn't do mitochondrial testing, nor did he in 1995.

He was successful in obtaining DNA from the napkin and hairs.  Now he’s talking extensively about alleles, and the polymarker system. 

The Doctor's conclusion from his work on the samples was that, Yes, Sebastian shares genetic information with that that was found at the scene (shower matched napkin).  With the profile he created from the samples, it's a 1 out of 10,000 match. 

Break
3:35 back from break.  Roger says he hopes to be finished with the direct by noon tomorrow. 

DQa Types of Rafay Family
Basma- 1.2, 4
Tariq-1.1, 1.2
Sultana- 4, 4
Atif- 1.1, 4 or 1.2, 4.  These are the only possibilities for Tariq and Sultana’s offspring.

He tried to extract DNA from several other shower drain hairs, and was successful, though he couldn't make a "significant" genetic profile.

He didn’t attempt to extract DNA from all the hairs from Basma's shirt.  He didn’t see some hairs as good candidates for DNA analysis. The hairs from Basma's fitted sheet are consistent with her DQa profile, which is accurate for 10-14% of the population (so not super accurate).  Both defendants are taking notes w/ pencils. 

June 30, 1995 is the date Dr. Blake sent his report to BPD c/o Bob Thompson.  In the summer of 2000 Dr. Blake was asked to do some additional work on the case.  Between ‘95 and 2000 there were developments in genetics - STR gene discrimination had gotten better.  Blake looked at the initial evidence and additional evidence (some more hairs that hadn’t been looked at before) using PCR technique. Dr. Blake corresponded with Jeff Baird to determine what samples were interesting and what was redundant.  The many hairs in the shower, for example, were not all looked at.  Other hairs (I presume whichever hairs had root material, and were therefore more genetically promising) were reexamined for the sake of being more comprehensive.  Mostly Blake wanted to look at as many hairs as possible, but didn’t want to waste time on hairs that wouldn’t yield results either.  The courtroom is now getting a great DNA lesson.  Dr. Blake is explaining that there are many times over more combinations of genetic profiles that are possible than there are people who exist on the planet, and goes on to explain the victims' unique STR profiles.

Roger frequently brings it back to the downstairs bathroom hair.  Now the slide actually says "Hair in Downstairs Bathroom."  Dr. Blake says retesting done in 2000 was not a matter of standards, but rather information: they could get more information in 2000.  Dr. Blake says his lab did the STR analysis blindly, i.e. building genetic profiles for the hairs from the downstairs bathroom without prior knowledge of the defendants’ genetic profiles.

At 4:20 court adjourns for the day.