[Zoxeeoy]

Sex, Lies & Audiotape (Part I)
(Revised July 22, 2011)
by Edgar J. Steele
July 12, 2011
The jury never heard even a hint about the single most important piece of
evidence in my defense at trial: proof that the government’s evidence, the two
recordings, were phony. Without those recordings, the government’s case
against me literally disappeared.
What’s that? You say that there must be something wrong? That I am
failing to tell you everything? Nope. Ask anybody who was at that pre-trial
hearing that took longer than my entire defense at trial. Judge Winmill ruled
that I could not present any evidence disputing the authenticity of the
audiotapes.
Why?
Why? For two reasons, said the judge – one for each of the two forensic
audiology experts we flew in from New York and New Mexico, respectively, for
the hearing and the trial.
Not Qualified?!?
The first expert, Dennis Walsh, with over 20 years experience in handling
and analyzing audio recordings for the New York City Police Department, who
owns a company that does nothing but analyze recordings, was declared “not
qualified” to render an opinion. Not qualified? Excuse me? Walsh was doing
this before it was science! In a moment, I will give you Walsh’s conclusions;
then you will see why the government had to prevent his testimony at any cost.
Irrelevant?!?
My second expert, Dr. George Papcun (pronounced “Pap’-sun”), could not
possibly be deemed unqualified, given the fact that he is the world’s leading
expert in forensic audiology. Papcun literally invented the discipline’s terms
and wrote the book “that others throughout the world rely upon.” Papcun
couldn’t testify, said the judge, because he was irrelevant, because nobody had
put the authenticity of the tapes into question. Yes, you heard that correctly,
regardless of how ridiculous it sounds. And the judge said it right out loud,
with a straight face. Why wasn’t the listing of Walsh and Papcun as experts
with the court (and filing their written opinions that the recordings were false)
enough to put the authenticity of the recordings “into question?” Why didn’t
my husband-wife-privileged jailhouse call, in which I averred the “tapes” had to
be false, enough to trigger the authenticity issue? For that matter, why wasn’t
my “not guilty” plea enough? Why wasn’t my expert’s testimony for 1-½ days in
a pretrial hearing “enough?” Incidentally the judge ruled that I had waived
that privilege, so that the call became the source of yet another federal
charge calling for 20 years in prison.
Then the judge said he might change his mind if a “party to the
recordings” (this phrase later was to mysteriously disappear from the trial
transcript) testified during the upcoming trial (then just 3 days away) that
“something” had been deleted or added to them. B-b-but, Judge – that leaves
only Larry Fairfax, the Idahun Hit Man, since I wasn’t really a “party” to them.
Of course, I was alleged to be a party, which means I was a party to them,
since in America, we are guilty of all state-charged crimes until we prove our
innocence. Prove. Well, yes, in my case that word seems not to exist, I admit.
So, Judge, you are saying that, if I waive my Constitutional right not to
take the stand, I might somehow be able to dispute the recordings’
authenticity? Really? Of course, you know that a defendant always testifies
last, if at all? You are forcing me to choose between my constitutional rights
and a key witness? The key witness? I felt as though I had “gone through the
looking glass” and now was subject to the tyranny of the Red Queen.
I don’t know if Judge Winmill knew that Dr. Papcun long ago had prepaid
$48,000 (non-refundable) for his and his wife’s dream vacation of a lifetime to
Tahiti, scheduled to depart just two days later. Dr. Papcun had offered to stay
for the trial despite that vacation (that could not be rescheduled), if the judge
ruled that he could testify and if we could put him on the stand early, out of
order and ahead of the state’s case against me. But the judge said Papcun
couldn’t testify, so off he flew to Tahiti.
When Yes Means No
I honestly don’t know if the judge knew about Dr. Papcun’s vacation plans
before the trial, but he sure knew about them during the second week of trial
when he inexplicably reversed himself, saying Papcun (but not Walsh, of course)
could testify at trial, provided he was in the courtroom at 8:30 am, two days
later.
The US Attorney knew about Papcun’s vacation in advance, because she
secretly was requiring the jail to provide her recordings of all my calls from
jail, even those made to lawyers, during which I discussed Papcun at length.
Now it was too late to subpoena Papcun, but we could (just) get him back on the
next commercial flight if we hurried. He agreed to come back, but asked if
there was any other way. We thought there was another way.
Yes, I know I promised to quote for you both experts’ written opinions,
but a couple more incredible twists to the Papcun saga yet remain to be told.
My lawyer informed the judge that Dr. Papcun was on the other side of
the world and, though there just barely was enough time to get him back to
Boise by commercial jet by the Judge’s deadline and though he was willing to
come, could we simply have him testify by videophone satellite uplink, over the
Internet? “Yes,” said the judge.
However, the very next morning, with only 24 hours to go, the judge acceded to
the US Attorney’s renewed demand that Papcun testify only in person. Why?
So that she could “more effectively cross-examine” Dr. Papcun! Yes, there is
that US Constitution “guarantee” that all defendants have a right to confront
all witnesses against them at trial. I guess it’s only fair to allow that same
right to the government, after all. But, Judge, we did rely on your (pre-secondflip)
flop when we passed up the chance to get Dr. Papcun back by your
deadline. That is, the flop that you made before your first flip. Flip-flop-flip.
I guess this section really should be titled “When No Meaning Yes Really Means
No.” Keep in mind that this selfsame US Attorney had cross-examined both Dr.
Papcun and Mr. Walsh in person and on the same witness stand, just 3 days
before trial, for 1-½ days!
When Rights Become Wrong
What’s more, this is the same judge who ruled that I had no
constitutional right to confront witnesses against me at trial, thereby allowing
the videotaped deposition of Tatiyana Loganova to be played for the jury. Her
deposition took place on the other side of the world, too, in Ukraine (going the
other direction, though). Once again, so much for my Constitutional rights.
The smell arising from this sordid little interlude just gets stronger,
doesn’t it? Well, hold on, because it gets worse believe it or not.
The Stench of Real Injustice
With less than 24 hours to go, the only way we now could get Papcun to
Boise by 8:30 am the next morning would be by charter jet. We found one,
incredibly enough, located in Hawaii, from where it actually could make it to
Tahiti, pick up Dr. Papcun and fly him to Boise just prior to the Judge’s
deadline… for $180,000! Cash in advance, of course.
My friends sucked it up and calculated that, together, they could just
barely pull together $180,000 that same morning. When they called the jet
charter company back, however, less than one hour after getting the all-clear
signal from it, the tension on the phone line was palpable. No, they didn’t want
to rent us the jet, after all. No, they had no idea who could or would, on such
short notice. “Have a nice day.” With that, my hopes for an acquittal
disappeared.
I couldn’t challenge the recordings, so the jury was forced to conclude
they were real, of course. The only thing my lawyer could say during closing
argument was that there was a “problem with the recordings,” and that only
because my wife and daughter both had sworn on the stand they were phony
and that it didn’t even sound like my voice in many places. Despite the fact
that my wife and daughter literally are the world’s leading experts on how I
sound and, though their testimony went unrefuted, the government convinced
the jury that I really had said all those terrible things.
The Audiotape
Now, let’s see what Dr. Papcun said in his pretrial written report:
“Both recordings contain numerous electronic signatures… such as would
be caused by dubbing… and/or editing…”
“Both recordings contain gaps…”
“Both recordings are of poor quality… with the recording volume at a very
low level, which would conceal irregularities and defects in the recordings.”
“There are discrepancies in the relative volumes of the speakers.”
(On one of the recordings) “there appears an extraneous voice.”
“… I conclude, within a reasonable degree of scientific probability that
the recordings… are unreliable.”
“With commonly available methods, it is possible to remove material,
insert material and alter the meaning of conversations.”
Dr. Papcun also noted that “electronic transients may be caused by
various events such as the following: turning equipment on and off, changing
components, connecting or disconnecting components, microphone malfunctions,
other equipment malfunctions (and/or) attempts at splicing or otherwise editing
or modifying recordings.” Every single one of the foregoing “events” was ruled
out by uncontroverted evidence presented by the government, all except the
last item, that is: “attempts at splicing or otherwise editing or modifying
recordings.”
Remember my other expert, Dennis Walsh, the one with over 20 years in
examining audio recordings? He adopted all of Dr. Papcun’s conclusions and
went even further. Walsh’s written opinion also said:
“I conclude, with a reasonable degree of scientific probability that the
recordings contain different speakers purported to be that of Edgar Steele.”
(emphasis added)
In direct testimony on the witness stand
during the 1-½ day pretrial hearing on audiology
experts, Mr. Walsh went still further and stated
his certainty that the tapes had been
“manufactured” and were wholly unreliable.
ed.
Previous: The Taol of ED
Next: Sex, Lies and Audiotape, Part 2
Copyright ©2011, Edgar J. Steele
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