THE STATE'S "PROBLEMS" IN THE AMIT LIVINGSTON CASE

(Ed.'s Note: We owe ace reporter Emma Perez-Treviño a debt of gratitude for her coverage of the judiciary scandal in Cameron County. However, even with her voluminous and acerbic coverage, there was so much material there that it was not humanly possible even for Emma to publish everything. We have begun a series  based on court transcripts highlighting little-known details of the trial of former Cameron County District Attorney Armando Villalobos. Villalobos is currently serving a 13-year sentence for his convictions on seven counts of racketeering and extortion. This segment deals with the testimony of Chuck Mattingly, formerly Chief First Assistant under the former DA. In it, he is questioned about the "problems" in the ballistic, and DNA evidence in the case against Amit Livingston.)
The Actors:

MATTINGLY (Witness)
AUSA Gregory J.SUROVIC (the government)
AUSA Michael J. WYNNE (the government)

Norton A. COLVIN (Defense)
COURT: Federal Judge Andrew Hanen

COLVIN: Now, that – those grooves on this bullet, those are like fingerprints, aren't they?
MATTINGLY: Yes, sir.
COLVIN: There are no two sets of rifling marks that are the saem in the world.
MATTINGLY: None that have been discovered scientifically, no, sir.
COLVIN: So when you have a fired bullet and you have the gun that fired the bullet, you can fire a new bullet out of that gun, and they're going to match.
MATTINGLY: They should, yes, sir.
COLVIN: Every time.
MATTINGLY: Yes, sir.
COLVIN: Unless the bullet is damaged in the – in the travel or impact that you can;t really get a good reading, correct?
MATTINGLY: That is correct, depending on the condition of the bullet retrieved.
COLVIN: And comparing it to the one you fire. Usually fire a bullet into a tank of water and they compare it to the one that was removed at the crime scene.
COLVIN: All right. Now, it's fair to say that the science of comparing the indentations on the primer, which is what we're talking about in Livingston –
MATTINGLY: Correct
COLVIN: – is not as precise, Now, that is an accurate statement, isn't it?
MATTINGLY: It's a statement that can be argued, yes.
COLVIN: In fact – you hired – well, did you take over the case from a – Rebecca Rubane?
MATTINGLY: When Ms. Rubane left the office, I then became lead trial counsel, correct.
COLVIN: I understood that you felt the case were not prepared and you removed her from the case or at least took over. Is that not true?
MATTINGLY: I did step in. We were working the case up as well as could be expected, yes, sir.
COLVIN: Okay. You know, that's fine.

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COLVIN: Now, you hired an expert, a ballistic – would this be a ballistics expert. Because it's not really a ballistics issue, is it?
MATTINGLY: It's a tool markings issue.
COLVIN: Right.
MATTINGLY: It's a subcategory of ballistics testing, correct.
COLVIN: And you hired an expert. And what the expert was to evaluate the markings on this primer and tyry to match it.
(WYNNE objects to compound question)
COLVIN: Did you hire an expert?
MATTINGLY: Mr. Colvin, we used an expert. The expert that we used is an employee of the Departmetn of Public Safety for the State of Texas. He's not a – an expert that you go out and hire in the field, but he is available to us for testimony, correct.
COLVIN: You used an expert.
MATTINGLY: Yes, sir.
COLVIN: And do you recall that his first report was that – and, well, let me back up. Strike that. What were you trying to have him look at was the dud round found in Livingston's – was it – where was it found?
MATTINGLY: His residence, his apartment, I believe.
COLVIN: And were you trying to compare the identification markings in the dud round, right?
MATTINGLY: Correct.
COLVIN: And you were trying to compare the indentation markings in a brass cartridge that was found on South Padre Island, right?
MATTINGLY: Yes. We were comparing the misfired cartridge to the casing recovered at the crime scene, correct.
COLVIN: To see if they were a match?
MATTINGLY: Yes, sir.
COLVIN: Now, when was that brass found on South Padre Island? When they found the victim?
MATTINGLY: I'm sorry. I don't recall the actual date when it was discovered.
COLVIN: How many– do you know how many days later they managed to find the brass?
MATTINGLY: I know they went with metal detectors, and I just couldn't give you the date, sir. I'm sorry.
COLVIN: Okay. And do you remember that your expert's first report on the – the state's expert's first report on this was that the match was inconclusive? Do you remember that?
MATTINGLY: I don't recall that, no, sir.
COLVIN: Okay. Now, the defense hired an expert in the Livingston case too, right?

MATTINGLY: That is correct, yes, sir.
COLVIN: And do you remember what their results were?
MATTINGLY: They disagreed with the results of our expert.
COLVIN: Well, not with the first results. They both said it was inconclusive first, right?
MATTINGLY: I don't recall what the first report from our expert said.
COLVIN: Really?
MATTINGLY: No.
COLVIN: Because you had a pretty good memory on Saturday.
MATTINGLY: And my memory is that the dimple mark, the dimple imprint and the primers were exact matches.
COLVIN: To the second test of your expert.
MATTINGLY: That is what our expert was going to testify to.
COLVIN: That's exactly right. The seconbd time, they matched. So – so there's that evidence and two different experts saying two different things, correct?
MATTINGLY: That is correct.
COLVIN: And your expert was going to have to deal with the fact that the first report was inconclusive. His first report was inconclusive.

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COLVIN: Now the second definitive thing that the state had going for them was the receipt on the aftermarket barrel, correct?
MATTINGLY: That is correct.
COLVIN: Do you know how many aftermarket barrels there are in then United States?
MATTINGLY: I do not, but it's in the millions, I'm sure.
COLVIN: It's in the millions. Do you know how many there are in Texas alone?
MATTINGLY: No sir, I do not.
COLVIN: Now, the truth is that's not a whole lot of good if you don't have the gun, right?
MATTINGLY: If you're going to do a ballistics test, I would agree with you, yes.
COLVIN: Okay. And you didn't have the gun.
MATTINGLY: No, we did not.
COLVIN: And since the barrel was in the gun, that's a bit of a problem for the state.
MATTINGLY: To do a ballistics test, yes.
COLVIN: Okay, All right. Let's – then there was the cell tower triangulation. How would  you defend that? If you were the defense lawyer for Livingston, how would you defend a cell tower triangulation?
MATTINGLY: Because a person seem to be located within a particular part of the county at a certain time, that has no bearing whatsoever on whether or not he committed the crime. He could have been there for a myriad of reasons.
COLVIN: exactly, exactly. Mt. Mattingly, could you have defended it on the basis that you can only get so tight a location on the triangulation evidence you had, right?
MATTINGLY: Even with the best technology, you can only get a certain location, correct.
COLVIN: And you could place him – could you have place him for sure on the Island?
MATTINGLY: I don't remember where we exactly had him placed. I do know he was within Cameron County, and it was on the Island, but it was close to the Island.
COLVIN:  It was somewhere near the Island.
MATTINGLY: Correct.
COLVIN: And I though I heard some testimony about someone hearing waves from the beach. Was there any evidence of – was there a recording or anything with waves from the beach, was there?
MATTINGLY: I don;t recall that, sir, and I don;t remember that.
COLVIN: So – and then the Sarita checkpoint, the only issue about that was that the cell tower triangulation, you could place him near the Sarita checkpoint at the time he – it was possible for him to have driven from the Island to that point by that time. I didn't – I didn't say that very well, but is that – am I accurate basically?
MATTINGLY: Are you saying that he could have driven to the Sarita checkpoint from the Island?
COLVIN: Yes, sir.
MATTINGLY: That's what you're saying?
COLVIN: Yes, sir.
MATTINGLY: Yes, the evidence shows that.

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COLVIN: Now, I don't want to waste a lot of time on this, but the jeans where there was semen, evidence on the jean, that's a potential problem, correct, for the state?
MATTINGLY: As a defense attorney, I would argue that she may have been with somebody within the same time period that she could have done the same thing.
COLVIN: Could be a third suspect.
MATTINGLY: That is correct.
COLVIN: For all we know, it could have been a third, fourth and fifth suspect.
MATTINGLY: That is correct.
COLVIN: And the photographs of her on her computer and what they were used for, that's a problem for the state.
MATTINGLY: I would disagree with that question or that statement that you're asking me. The photographs to me placed the victim in an embarrassing light, and I thought it could have been embarrassing for the family. However, in my opinion I believe that you would settle a murder case for a very low number of years simply because of the photographs. You have to prepare the victim's family.
COLVIN: Understood, understood. But it's an issue.
MATTINGLY: Yes, sir.
COLVIN: It's definitely an issue.
MATTINGLY: – it's an issue. If you and I are talking about it, it's an issue, yes.
COLVIN: It's definitely an issue.

(In our next post Mattingly tries to explain how DA's office reacted to Judge Abel Limas granting Livingston a 60-day period to get his affairs in order after being sentenced to n23 years in the state penitentiary.)