CERTIFIED COPY SWORN STATEMENT 12 ROBERTO J. BAYARDO 13 OCTOBER 3,

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1 SWORN STATEMENT 12 ROBERTO J. BAYARDO 13 OCTOBER 3, CERTIFIED COPY Sworn Statement OF ROBERTO J. BAYARDO, given 21 on the 3rd day of October, 2011, at 4:46 P.M., before 22 Sherri Santman Fisher, a Certified Shorthand Reporter 23 in and for the State of Texas, at 8201 Hickory Creek 24 Drive, in the City of Austin, County of Travis, State 25 of Texas.

2 I 1 APPEARANCES 2 John W. Raley 3 Raley & Bowick 1800 Augusta Drive, Suite Houston, Texas Telephone: (713) Fax: (713) K K bunijelt. eporing & uiigation services

3 3 / Appearances Examination by Mr. Raley 4:46 p.m. - 5:03 p.m. INDEX Page 2 4 Changes and Signature 15 6 Reporter's Certification F'

4 '4 / : : : : : : : : : : : : : : : : : : :47 24 :47 25 ROBERTO J. BAYARDO J having been first duly sworn, testified as follows: EXAMINATION BY MR. RALEY: Q. Dr. Bayardo, I am John Raley. I am counsel for Michael Morton. And I'm here to ask you some questions about your testimony in his trial many years ago. I have here with me the transcript of your testimony and other portions of the transcript. I very much appreciate your time this afternoon to talk briefly about this issue. The first question I have for you, Doctor, is: Is this the first time that you're aware of that you gave an opinion in trial regarding the time of death based on a stomach contents analysis? A. Yes, it is. Q. Is it also the last time you gave an opinion in trial based upon stomach contents in giving some sort of an estimate of the time of death? A. Yes, the last time and the only time, yes. Q. On page 681 of the trial transcript, when you were asked your opinion regarding the timing of the death, line 12, you say, Well, that's not a scientific statement." Do you see that, sir?

5 : : : : : : : : : : : : : : : : : : : : : :49 24 j1:49 25 A. Yes, I do. Q. When you say something is not a scientific statement, what does that mean to you, the word scientific 1? 7\.. It's not based on science, real science. Q. All right, sir. Now, on page six -- I'm sorry, 682 of the trial transcript, lines seven and eight, you said, "As I already said, there is no scientific precise method to determine the time of death." Did you mean that when you said it, sir? A. Oh, yes, I did. Q. All right, sir. Now, those questions were on -- strike that. Later in the trial testimony, on page 689, you agreed with medical literature that, in speaking of a stomach contents analysis, "This method can seldom provide reliable information as to the time lapsed between the known meal and death as the rate of stomach emptying is so variable." And you were asked, "Do you agree with that?" Do you see that, sir? A. Yes, I see it. Q. And you answered, "I would have no problem,"

6 III : : : : : : : : : : :50 12 /4 : : : : : : : : : : : : correct? A. Correct, yes. Q. So were you agreeing with this medical literature on the stand that I just read to you? A. Yeah, I was agreeing to that. Q. The other medical literature was asked it was pointed out to you that, for example, one said on page 690, starting with line 18, quote, 'Attempts to fix this time based solely on an examination of the stomach contents are unsatisfactory, even when. allowance is made for factors which either hasten or retard digestion." And you were asked if you agreed with that. Do you see that, sir? A. Yes, I see it. Q. And you said what, sir? A. 'Yes, fully." Q. So would you agree that you were trying to tell the jury when you were on the witness stand that estimating time of death based solely on an analysis of stomach contents was not scientific and was not precise? A. That's what I kept repeating over and over again. Q. All right, sir. Now, I want to show you some

7 N I: :51 04 :51 04 : :52 04:52 04:52 04:52 04:52 04:52 04:52 04:52 04: passages from the rebuttal of the closing argument by the State in this case, starting with the bottom of page 1144 and on to the top of the next page. The State -- the prosecutor said, quote, That makes the time of death 3:15 and that makes Michael Morton scientifically proved as the killer of his wife, unquote. A. Yes, I see it. Do you see that, sir? Q. You never testified that Michael was scientifically proved as the killer of his wife, did you, sir? A. I did not. Q. In fact, you affirmatively told the jury that making such an estimate as to time of death was not scientific, correct? A. Correct. Q. Further down on that same page of 1145, lines 17 through 20, the prosecutor said, quote, "Six to eight hours still makes the defendant the killer and proved that way by medical science.' A. Yes, I see it. Q. Unquote. Do you see that, sir? So this is another place where he's I..... une±t Ieporc1ng & t1c1gal1on services

8 EX L. /: : : : : : : : : : : : : : : : : : : : : : : : saying scientific evidence proves that the murder occurred before Michael Morton left, correct? A. Correct. Q. And that's not what you told the jury, is it, sir? A. That's correct. Q. On the next page -- and I'll tell you, Dr. Bayardo, I'm not going to show you every single one of these because there are so many, but I'll show you some of them. 1146, starting with line 21, "No matter what medical science tells you, you can find an opinion" -- "an opposite opinion if you've got enough money to bring them in." Do you see that? A. Yes, I do. Q. He's saying that what you said was medical science, isn't he, sir? A. I don't think that's what he meant. Q. All right. Well, let's look at the specific quote. Page 1147, lines eight through 10, in reference to the defense, he says, "They've got to go berserk on that because medical science showed this defendant killed his wife. " Do you see that, sir?

9 III : : : : : :54 7 A. I see it. Q. It was not your testimony that medical science killed Christine Morton medical science proves that Michael killed Christine Morton, correct? A. Correct. Q. And here he is again on the same page, lines 14 through 16, quote, "That's the best medical science 04 :54 8 can bring us shows that -- shows this defendant is a 04 : : : :54 12 / : : : : : : : : : : : killer, time of death," unquote. Again, another reference to medical science by the State, correct? A. Correct. Q. And here's another one, Dr. Bayardo, page 1162, lines eight through 10, quote, "We brought you scientific evidence that shows that she was dead before he went to work that morning," unquote. Do you see that, sir? A. Yes, I see it. Q. So over and over and over again, the prosecutor is telling the jury on rebuttal of closing argument that medical science proves that Michael Morton killed his wife because she died before he left for work. Do you see that, sir? A. Yes, I see it. Q. That is a direct contradiction from your

10 10 : : : :55 4 U : : : : : :56 11 ri : : : : : : : : : :57 23 :57 24 :57 25 testimony we just looked at, sir, where you said that an estimate of time of death based on stomach Contents is not a scientific statement and not scientifically precise, correct, sir? A. Correct. Q. So would you agree that these statements by the prosecutor on closing argument that contradict your very express testimony are not in any way a reasonable inference that can be made from your testimony? Do you agree with that, sir? A. Very much so, yes. Q. Thank you, sir. What are your personal feelings about the fact that the prosecutor said what he said on closing in contrast to what you said on the witness stand? A. Well, I'm very much disturbed because that's not what I meant to say at the time of the trial. Q. Well, you said a certain thing during the trial. You said it was not scientific and that any estimate based only on stomach contents was not scientifically precise. And you said that very clearly, correct? We've just looked at that together, correct? A. That's right, yes. Q. But on closing, he said something completely

11 : : : : : : : : : : :58 12 : : : : : : : : : : : : :58 25 different. He said medical science proves that Michael is the killer. And we just looked at that together, right? A. That's right. Q. So that disturbs you? A. Very much so, as I said before. Q. We looked at some literature earlier together where there is a discussion of using gastric contents to estimate death; and the literature at the time is very consistent with what you testified at trial, that it's not scientific and not scientifically precise, correct? A. Correct. Q. There has been a lot of literature that we looked at together since the trial, for example, an article by Jaffe, J-a-f-fe, in the American Journal of Forensic Medicine and Pathology, 1989, that says using stomach contents as a guide to the time of the death is theoretically unsound because Tit involves an unacceptable degree of imprecision and is thus liable to mislead the investigator and the Court." Do you see that, sir? A. Yes, I see it. Q. And do you agree with that statement? A. Yes, I do. un.be±t Reporting & Litigation Services

12 : : : : : : : : : :00 11 fl5 : : : : : : : : : :00 23 :00 24 Q. And another -- later in that same article Dr. Jaffe says that assessing the state of stomach contents as a reflection of the postmortem interval is "not efficient enough to yield a degree of precision that could be regarded as acceptable." And you agree with that as well. A. Yes, I do. Q. An article in 1997 by Knight says that " examination of stomach contents at autopsy" to time death "is of very limited value." Do you agree with that, sir? A. Correct. You have to take it -- as I mentioned, for time of death, you have to take other physical findings into consideration. Q. Such as rigor mortis. A. And livor mortis, yes. Q. Since you didn't see the body of Christine Morton until over a day after her death, you weren't able to do those things, were you, sir? A. That's correct. They were not reliable at that time. Q. Yes, sir. And we're almost through with these, but I just wanted you to take them chronologically S - 25 forward. In 2002, an article by Nokes, N-o--k-e--s, and

13 13 1 > : : : : : : : : : : : : : : : : : : : : : : : Madea, M-a-d-e-a -- well, actually it's a chapter by Bernard Knight, who says 'Strong evidential value can rarely be placed on the use of stomach contents' -- I'm sorry, "gastric contents in timing death." And do you agree with that, sir? A. Yes, I do. Q. The author notes that "Gastric digestion may continue postmortem." And you agree with that. A. Yes, I do. Q. And there are several other articles just like this, Doctor, which I won't burden your time with much more. Here's one from 2004 that states there is now a consensus that with extremely circumscribed exceptions, the method is -- again, we're talking about stomach contents analysis for timing death -- is unacceptable to have much validity. Do you agree with that, sir? A. We are agreeing that all this Q. This is all later. A. -- literature has come later. Q. Yes, sir. This is all -- A. Much later from the time of the trial. Q. Right. This is all literature that's after the trial that we've been talking about. And I've been

14 trying to give the dates of them. 05: : :02 4 In light of all this literature -- and here's another one that says just, for example, the use of this method can lead to generalizations that are 05:02 5 wildly incorrect, even to the detriment f justice. 05: : : : : : : : : : : : : :03 19 In light of all this subsequent literature after trial, which was obviously not available to you at the time of trial back in 1987, would you agree that you probably wouldn't have given any opinion on the time of death even based on experience? Because all of this scientific literature indicates that it's just too unreliable. Do you agree with that, sir? A. Yeah. And I agree that my testimony was that this was not a scientific way to make a determination of time of death. Q. Thank you, sir. A. So everything agrees with what we have been talking about. 05:03 20 MR. RAIJEY Thank you very much, 05:03 21 Dr. Bayardo. 05: :03 23 :03 24 THE WITNESS: You're welcome. MR. RALEY: That's all. Off the record. (Proceedings concluded at 5:03 p.m.) 25 unneir Reporting & Litigation services

15 15 1 CHANGES AND SIGNATURE 2 WITNESS NAME: DATE: 3 ROBERTO J. BAYARDO OCTOBER 3, PAGE LINE CHANGE REASON :

16 16 1 I, ROBERTO J. BAYARDO, have read the foregoing 2 deposition and hereby affix my signature that same is 3 true and correct, except as noted herein ROBERTO -J-. BAYARDO 8 # THE STATE OF TEXAS 11 COUNTY OF TRAVIS Before me, / on this day 14 personally appeared ROBERTO J. BAYARDO, known to me to 15 be the person whose name is subscribed to the foregoing 16 instrument and acknowledged to me that they executed 17 the same for the purposes and consideration therein 18 expressed Given under my hand and seal of office this 21 day of A.D., MrM 23 Notary Public in and for 24 the State of Texas 25

17 17 I 1 COUNTY OF TRAVIS 2 STATE OF TEXAS 3 4 REPORTER'S CERTIFICATION 5 6 I, SHERRI SANTMAN FISHER, Certified Shorthand 7 Reporter in and for the State of Texas, hereby certify 8 that this transcript is a true record of the testimony 9 given and that the witness was duly sworn by the 10 officer. 11 I further certify that I am neither attorney 12 nor counsel for, related to, nor employed by any of the / 13 parties to the action in which this testimony was 14 taken. Further, I am not a relative or employee of any 15 attorney of record in this cause, nor do I have a 16 financial interest in the action. 17 Subscribed and sworn to on this the 19th day 18 of October, SHERRI SANTMAN FISHER, Texas CS Expiration Date: Firm Registration No La Posada Drive, Suite Austin, Texas (512) Job No Sunbelt Reortinq & Litigation Services

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ORAL AND VIDEOTAPED DEPOSITION OF KEN ANDERSON VOLUME 2

CAUSE NO. 86-452-K26 THE STATE OF TEXAS ) IN THE DISTRICT COURT OF Plaintiff(s) Page 311 VS. ) WILLIAMSON COUNTY, TEXAS MICHAEL MORTON Defendant(s). ) 26TH JUDICIAL DISTRICT ORAL AND VIDEOTAPED DEPOSITION