The Hunt - Chapter 2: Weird Canadian Bugs Me About Mouser Case
Did a photogrammetrist help police “solve” the murder of a fourteen-year-old girl in 1995? He says so.
This is Chapter 2 in The Hunt, our ongoing serial. Read Chapter 1 here.
February was cold, and nearly over.
I had a federal jury trial starting in a matter of days and I’d spent the morning on my hands and knees holding a tiny, non-UL-listed, under-desk heater up to the frozen but not yet burst, washing-machine supply lines that crossed the crawlspace under my laundry room.
Justin asked if I could take a look at something about an innocent man in prison in California.
I’m a mediocre litigator from Boston, a reluctant trial attorney.
I handle the kind of dull, unremarkable, civil cases that regular people are most likely to be tangled up in; A homeowner doesn’t like the new roof on her garage; a firefighter makes a bad decision; something leaks, something else explodes, and something’s still on fire. Normal stuff. Low stakes.
This was out of my field. It was out of my state. It wasn’t even the practice of law1.
It wasn’t clear to me what Justin thought I could add2.
Or what he wanted3.
Of course, I said yes.
People v. Mouser opens with the sentence “[o]n October 14, 1995, defendant Douglas Scott Mouser strangled to death his 14-year-old stepdaughter, Genna Gamble, and dumped her naked body down a ravine.”
It’s a long decision and grim.
Sixty-six pages, most of which are spent describing what the jury heard at trial. A lot of opinion testimony. Opinion testimony that blew my mind and short-circuited my brain. The kind of shit I wouldn’t be able to get admitted in small claims court, even on my birthday, and if I asked really, really nicely.
Dueling profilers testified. The prosecution’s profiler testified that, based on his examination of the crime scene, Genna Gamble was the kind of girl to get killed by a family member, rather than a stranger, and Doug was a family member, so, you know…
The other profiler testified that she wasn’t that kind of girl at all.
A shock, because the better rebuttal would be…
“Holy fuck, Your Honor, you can’t look at a suburban home, and a garage, and a basket of fucking laundry that hasn’t been overturned, and tell a jury that you solved a murder because maybe some things were still folded. Are you fucking crazy?”
In most of the United States, “profiler” testimony is so beyond the pale, so obviously prohibited, that defense counsel’s failure to get it excluded is nearly per se inadequate assistance of counsel.
Most states have a rule that precludes the introduction of what’s called “character evidence.” A prosecutor can’t admit evidence, say, that a defendant is an unsavory character, and then argue “defendant did this crime because defendant is the kinda guy who does crimes.” Not so, California.
More outlandish than the profiler’s testimony, though, was the opinion of a gentleman named Gary Robertson.
Mr. Robertson offered the opinion that Genna Gamble had been transported from the place where she was killed to the place she was found, in the back of Doug Mouser’s Honda. He offered this opinion based on measurements taken from a post-mortem, post-autopsy, post-embalming photograph of Genna Gamble’s leg, and his own backseat experimentation with a willing, live, model.
Mr. Robertson wasn’t offered as an expert on anatomy, or forensic pathology. He’s not an expert in those fields. His area is “photogrammetry.” Measuring things, in pictures.
In other words, if Mr. Robertson had driven to the morgue with a tape measure and a dream, he’d be a layperson. No better qualified than anyone to offer an opinion on why, how, or what. But because a Stanislaus county employee held the camera, Mr. Robertson became an expert, and his opinion became evidence.
Pathologically curious, I pulled everything I could find on the Mouser case: Briefs, the habeas corpus decision, the habeas petition, the declaration, oppositions; the docket in the trial court. It took about seventeen minutes. I’m very good.
I tried to find everything I could on this guy, Robertson. There wasn’t that much, which was odd. Experts are usually easy to research. They want you to know where they trained, what they’ve written, and who they’ve worked for.
Even if they don’t, Thomson Reuters and LexisNexis scrape their resumes, deposition transcripts, and declarations from Pacer. Attorneys swap their favorite experts’ contact information like trading cards. Reports – even those marked ‘Confidential’ – have their own ways of getting around.
Mr. Robertson, though, didn’t have much of a footprint, in the usual places. The information I could find wasn’t flattering, like this footnote from a decision in the Central District of California:
Petitioner lodged as Supp. Opposition Ex. AA a DVD of episode # 28, “Picture This,” from the television show Forensic Files, apparently to counter any suggestion that Robertson is a defense “hired gun” by showing that Robertson works not only with defendants but also with prosecuting agencies.
The episode features Robertson's work in helping police “solve” the murder of Genna Gamble. The Court will not here recount the details of Robertson's efforts in connection with the investigation of the Genna Gamble murder. Suffice to say that Robertson's methodology, assumptions, and conclusions were disputed by multiple experts4.
Reading between the lines, the above is a rather sick burn. And cutting. Particularly the quotation marks around the word “solve.”
Going further afield, I came across some excerpted testimony from the Stonechild case, where Mr. Robertson discussed his work on the Mouser case.
When Justin asked what I thought, I told him: It all seemed super fucked up.
Continue with Chapter 3: The Micron Man below:
Thank fucking god. Nothing I describe here is the practice of law. Nor is it legal advice.
It was access to Pacer.
Maybe also Westlaw.
Madden v. Cate, No. CV 11-5652 FMO JC, 2013 WL 5741781, at *13 (C.D. Cal. Oct. 22, 2013)