The Nancy Kissel Case - Part 50

(The Standard)  Baseball bat evidence in question.  By Albert Wong.  August 24, 2005.

The metal ornament allegedly used by accused murderer Nancy Kissel to defend herself in a furious fight with her husband was not dented by the baseball bat she said he was wielding, a government forensic expert told the High Court Tuesday.

Doctor Wong Koon-hung said he would have expected to find wood grain patterns or paint smears left on the ornament, or traces of lead on the bat. But no traces of such contact evidence were found, he said.  Wong said he had done controlled experiments using baseball bats bought in Mong Kok to strike tightly clamped lead sheets to attempt to replicate the effect of Robert Kissel's Little League bat striking the base of the metal ornament.

During cross-examination, Wong said he could not produce all his test results since he hammered flat the same metal sheets and reused them, and they now only show the most recent results.

Defense counsel Alexander King SC told the judge: "We've now heard that the results of earlier tests have been destroyed.''

Kissel, 41, is accused of murdering her husband Robert Kissel on November 2, 2003. The accused testified that on that night, her husband came at her swinging a baseball bat saying, "I'm going to kill you, you bitch,'' and that she used the metal ornament to protect herself from the blows.  Although she acknowledged in testimony that she struck him five times, she has pleaded not guilty to the murder charge and said she could not remember how she came to inflict the fatal wounds to the side of his head.

The defense has repeatedly suggested that the dent on the base of the metal ornament was caused by the bat's impact.  That was before Wong conducted tests on the possible impact of the bat and the ornament. Tuesday, Wong was re-called to submit "rebuttal evidence'' in relation to a wooden baseball bat, a defense exhibit, which has been identified by the accused as the one wielded by her husband.

Wong said that while he could not exclude contact between the bat and the ornament, given the controlled experiments, it was doubtful.  When he used one of the bats with "moderate force'' to strike the sheets of lead, he said, it produced a 1.9 centimeter dent on sheets weighing 2.09 kilograms. On those weighing 2.28kg, he was able to produce an indentation of 1.4cm, he said.  But he added the sheets of lead were "less resistant to bending'' than the solid metal base of the ornament.

The indentation on the ornament's base measured between 1.4cm and 1.8cm depending on which side.  Earlier in the trial, Wong said he had found the metal base of the ornament to be 1.7kg.

After having caused the indentations, he found wood grains imprinted on the lead sheets and lead smears on the bats, he said.  The sheets also showed "quite a regular arch shape.''  However, "I could not find such regular indentation across the base of the metal ornament. Nor could I find wood grain pattern nor paint smears across the metallic structure,'' Wong said.  The two lead sheets bearing regular "V-shape'' arches and wood grain patterns were shown to the jury.

In cross-examination, King asked Wong to produce the other eight or nine sheets of lead that should be in existence given the record of the tests he had conducted.  Wong said the only available results of the experiments were the two already shown to the jury, since he hammered the sheets flat after previous tests and re-used them.

King said the defense was therefore unable to "test the science'' of the earlier results.  King showed a picture of Wong's technician striking pieces of lead with a baseball bat. "What happened to those pieces of lead?'' asked King.  Wong replied that he kept the top layer but he did not consider those underneath to be of importance.

Earlier Tuesday, government DNA profiling expert Dr Pang Chi-ming said "there was no bloodstain found on the baseball bat'' and that the human material that he found on its handle belonged to neither the deceased, nor the accused, but to another female.

In cross-examination, King asked, "You would agree, would you not, that not everyone that touches the end of the baseball bat will leave human DNA material that is detectable by testing?''  Pang said that "if I touch this microphone with my finger, it's possible my human material will not be left on it. But if I held it tightly, and moved it around, I don't believe that my human material would not be left on it.''  He added that if the bat had been kept in a cool area, DNA-bearing material would be preserved longer.

King suggested that after six months, "you may or may not find material on the article.''  Pang said in the case of the bat, he was able to find human material on it.

"Are you saying then in the history of that bat, only one person has ever held the handle?'' said King.  Pang replied: "I did not say that.''

The trial was adjourned early Tuesday to give more time for the defense to consider how to continue the cross-examination of Wong.

The trial continues today before Justice Michael Lunn.

(SCMP)  Experts cast doubt on Kissel claims over bat.  By Polly Hui.  August 24, 2005.

A baseball bat Nancy Kissel claims her husband beat her with on the day he died did not carry his DNA, nor had it been used to strike forcefully the ornament she claims to have used in self-defence, government forensic scientists testified yesterday.

Pang Chi-ming, a DNA-typing expert recalled by the prosecution to give evidence in rebuttal yesterday, said he could only find an unidentified woman's DNA on the bat handle. He also told jurors in the Court of First Instance he could find no bloodstains on the bat.

Kissel, 41, had earlier told the court that Robert Peter Kissel had beaten her with the bat in the master bedroom of their flat in Parkview, Tai Tam, on November 2, 2003, after telling her he had filed for divorce.

She claimed she had used a metal ornament to fend off blows from the bat. Prosecutor Peter Chapman has told the court that Kissel used the 3.7kg ornament to deal five fatal blows to her husband's head after drugging him with a sedatives-laced milkshake.

In cross-examination, Alexander King SC, for Kissel, asked Dr Pang: "Would you agree that not everyone who touches the end of the baseball bat leaves DNA material detectable to tests?"

The witness replied: "I can say a light touch with my fingertip on the microphone may not leave my DNA behind. But if I grab it tight and keep moving it here and there, I ... believe DNA would ... be left."

The defence counsel asked if DNA traces could stay on the bat for six months. Mr Pang said it depended where the article was kept.

"Are you saying that in the history of that bat, only one person has ever held the handle?" asked the counsel. "I did not say that," the witness replied. He agreed when asked by Mr King if he was informed by police that the bat would not be tested for fingerprints.

Kissel admits killing her husband, a banker with Merrill Lynch, but pleads not guilty to his murder.

Forensic scientist Wong Koon-hung, another prosecution witness recalled to give rebuttal evidence yesterday, said the ornament was made of almost pure lead, a relatively soft metal that would leave traces even on a piece of paper after contact. "Therefore I would expect to find some lead smear on the bat had they been in contact. But I found none," he said.

Neither did he find lead traces on a white pillow case in which the bat was kept for a time after being found in the flat by defence solicitor Simon Clark. The exhibit was handed by the defence to the prosecution in court a month ago for the government laboratory to perform tests.

There were no traces of paint from the bat on the ornament.

"There has also been a suggestion that the curvature of the [ornament] base was caused by impacts of the baseball bat on the base. Did you conduct further tests?" asked Mr Chapman.

The expert said the indentations on the base measured 1.4cm and 1.8cm respectively. Dr Wong said two baseball bats were used in control experiments to hit two pieces of 2kg lead sheet at a 90-degree angle, resulting in maximum indentations of between 1.4cm and 2cm.

The strikes also produced an arc of regular V-shaped curvature on the sheets, with wood grain pattern on the deepest part of the groove. Lead smear was left on the surface of the bats. But the shape of the ornament base was "too irregular" to have been produced by the impact of the bat admitted as evidence, said the forensic expert.

He was not able to suggest what had produced the indentation shapes on the ornament.

Dr Wong told the court that he could not rule out the possibility the bat had been in contact with the metal ornament. But he said: "It's conclusive that the piece of metal had not been struck with the baseball bat with significant force.

"To cause that level of damage would require quite a significant force. Under such force, I would expect at least some wood grain pattern pertaining to the bat on the metal ornament."

In cross-examination, Mr King asked Dr Wong how many pieces of lead sheet he had used. He said he had three lead sheets with him and explained that he had hammered the pieces flat for further tests if he was not satisfied with the results.

The defence counsel said that meant the witness had destroyed results of earlier tests, and argued that any wood grain residue left on the lead sheets when they were struck with the bats could have been hammered out.

Mr King asked for the other lead sheets used in Dr Wong's tests to be brought to court for examination.

The case continues today.