No Bone Unturned: The Adventures of a Top Smithsonian Forensic Scientist and the Legal Battle for America's Oldest Skeletons - Jeff Benedict (2003)

Chapter 31. OBJECTION

May 28, 1998
Sisters of Providence Hospital
Portland, Oregon

It was 5:30 A.M. when Paula Barran stopped her blue Volvo 850 outside the hospital. Richard Hunt slowly got out. “I’ll call and check on you,” she said, at a loss for words. Hunt said nothing.

Pulling away, she questioned her ability to compartmentalize and focus on the case while Hunt was in the hospital. She arrived at her law office by six. With three hours until she had to be in court, she closed her office door and immersed herself in her oral argument. If she allowed herself to think about what was going on at the hospital, she would not be able to function in court.

At 8:00 her phone rang. It was Hunt. “I’m checked into my room,” he said. “Now it’s just hurry up and wait.”

“What room are you in?”

He gave her the number and said he would talk to her after the surgery.

“You’re going to be OK,” Barran said.

After she hung up, she took a deep breath, gathered her files together, and walked to the courthouse.

U.S. District Court

Portland, Oregon

“The primary issue this morning is the curation of the remains in question,” Judge Jelderks said, welcoming Justice Department lawyers and Paula Barran and Alan Schneider to court. He invited Barran to speak first. She had some surprising news for the court. Schneider’s investigation into the missing femurs revealed that a high-ranking official at the Battelle facility—Darby Stapp—was married to Julie Longenecker, the Umatilla tribe’s archaeologist, who had conducted the inventory of Kennewick Man five days after the skeleton arrived at the facility. “Mr. Stapp is one of the custodians…keyed to the vault room,” Barran said. “It is also a fact that Mr. Stapp and his spouse have published articles which are highly critical of the scientists’ positions in this lawsuit. We have been worried about ongoing security breaches over the curation of this skeleton and now we learn of a relationship between highly placed people which doesn’t seem to be supervised by the curator.”

Jelderks occasionally jotted down notes as Barran revealed that Schneider had also confirmed through discovery documents that members of the Indian tribes had gotten access to Kennewick Man to perform a religious ceremony. The tribes had also gained access to the storage vault on another occasion and grabbed other bones, including rib and vertebra fragments believed to be from Kennewick Man. The tribal members had buried those bones at an undisclosed location. “We don’t know why the tribal claimants were not kept out of the vault,” Barran said. “We don’t know where these bones were reburied.

“I think you can draw some inferences from this,” Barran continued. “The first is that from the day this skeleton has come into the custody of the Army Corps of Engineers it has been bungled.” She reminded Jelderks that Jim Chatters had performed a complete inventory of Kennewick Man before surrendering him to the corps, and that inventory included the presence of femurs.

“Femur bones are very important bones to an anthropologist trying to decide the origin of this particular skeleton,” she said. “They were present when Dr. Chatters had the bones. They were present when he videotaped the packing. They were present when he turned them over to the Benton County coroner. They were in the Benton County coroner’s lockup and transferred to the government. And it would not be until March 1998 that the government came back to you and reported that these bones were missing. The government had the bones for 14 full months without doing a formal inventory. There has been no explanation of where those bones are, except for a lot of finger pointing and some suggestion that perhaps Dr. Chatters is a bone thief.”

Barran shuffled some papers, pulling from her file an affidavit. “Lieutenant Colonel Curtis, who is the official custodian of these bones right now, says that during the religious ceremonies nothing happened that harmed the bones. But nowhere in any of his many declarations have I ever heard him say that he actually attended those ceremonies. If he wasn’t there, I would suggest that he’s not exactly a competent witness to tell you that the bones weren’t stolen during one of the religious ceremonies.”

Speaking rapidly, Barran began to close. “Quite frankly, I believe and I submit that the government has lost all credibility in their ability to handle this skeleton and the time is now for the court to intervene and require the skeleton to be preserved by a neutral curator who answers only to the court.”

Schneider’s investigation did not lead to who had the bones or whether they were even stolen. But he had uncovered a glaring conflict of interest for a ranking member of the Battelle facility who had direct ties to the Umatilla tribe. It was clear that the tribes had been getting unlimited access to Kennewick Man, despite a court order to keep him under lock and key. Besides the missing femurs, other bones had been removed from the facility. To Barran it was clear: the facility was not a safe place for Kennewick Man.

“I’m very concerned about personal relationships between Battelle employees and the claimants. I’m concerned about inadequate security. I’m concerned about what I call the very serious coincidences that the tribal claimants somehow knew how to get into the vault room and then somehow knew what box to take. I’m concerned that there’s been no effort to recover what’s been taken.”

Barran stopped. “Thank you, Your Honor.”

Jelderks looked toward the table of government lawyers. Unable to close out Barran and Schneider sooner, the Justice Department had reassigned a new lead attorney to the case, Robin Michael. She began by rehearsing the chronology leading up to the discovery of the missing femurs, pointing out that on September 5, 1996, the skeleton arrived at Battelle in a wooden evidence box that was sealed with tape. “They remained in that manner until September 10th when the Corps archaeologist opened the box for the first time and conducted an inventory in the presence of two other staff archaeologists,” Michael said. “That inventory indicated that there were missing femur fragments. At the time the inventory was taken the remains were in plastic Ziploc bags in the manner that they had been provided, transferred by Dr. Chatters. They were not taken out of their bags when the inventory was done. They have not been handled by human hands since the remains have been transferred to the Corps.

“We have no accounting in regards to what handling of the remains occurred prior to Dr. Chatters turning over the remains.”

As Michaels wrapped up, Barran sipped her glass of water.

“Ms. Barran, you may call your first witness.”

Barran called Chatters.

Chatters took a seat in front of the microphone.

“Are you the person who initially collected the Kennewick Man remains?” Barran asked.

“The complete skeleton, yes.”

“Did you have possession of femur bones when you had the Kennewick Man remains in your possession?”

“Yes, I did.”

“What did you do with them?”

“Placed them in plastic bags, individual fragments, I believe, in each bag and placed them in the bottom of the wooden box.”

As Barran continued, one of the U.S. attorneys interrupted her. “Your Honor,” he said, “we need to either take a sidebar or discuss an issue here in Court about this particular testimony.” The U.S. attorney informed Judge Jelderks that Chatters had a criminal attorney and had exercised his right not to talk to the FBI about the missing femurs. “I’m assuming he’s waiving his rights then at this point,” the U.S. attorney said.

“I don’t think that’s for me to decide,” Jelderks said.

“Okay,” the U.S. attorney said.

Barran resumed her questioning of Chatters, then sat down.

Jelderks looked at Robin Michael. Her cross-examination of Chatters focused on the discrepancy between his testimony that he put the femurs in the box and the inventory done at Battelle, which indicated that the femur fragments were absent. “You’re aware of the fact that the inventory that was conducted at that time showed three to four missing femur fragments; is that correct?”

“I’m not aware of what the inventory said.”

“You had no control over the remains between August 30th and September 5th?”

“That’s correct.”

“So you cannot testify to a hundred percent certainty as to what happened to the remains or to the femur fragments during the period from August 30th and September 5th?”

“That’s correct.”

“I have nothing further, Your Honor.”

“Dr. Chatters, one follow-up question,” Barran said. “What were you told by the Benton County Coroner when you were advised that he needed to give up possession of the remains?”

“Objection,” Michael said. “Hearsay.”

Jelderks looked at Michael. “Objection’s overruled.”

Chatters looked at Jelderks, making sure it was all right to speak. “That he had been ordered by the county attorney and that the attorney had made agreement with the Corps of Engineers that no further work of any kind would be done on the skeleton and that he had to come get the bones immediately and would be there shortly.”

After hearing from Chatters, the government called its witness. While he testified, Barran suddenly looked up at her watch. It was 11 A.M. A wave of panic suddenly swept over her. Wondering what was happening to Hunt, she momentarily lost her train of thought before convincing herself not to think about it until 1:00.

When the government’s witness finished, Jelderks adjourned. He promised a swift decision on whether to order the skeleton transferred to another, more neutral facility. As soon as Barran got back to her office, she called the hospital. A nurse informed her that Hunt was out of surgery and back in his room resting comfortably. “He’s pretty groggy,” the nurse said.

The next day, Judge Jelderks issued an order. “Defendants shall provide Dr. Owsley access to the skeleton to evaluate the condition of curation,” Jelderks wrote, ordering the government to cooperate with Owsley in arranging a time and procedure for Owsley to see Kennewick Man.

Schneider and Barran wanted Chatters to accompany Owsley. He was the only one who had examined the skeleton previously and was therefore in a better position to compare its current condition with its condition at the time Chatters surrendered it to the corps. The government adamantly opposed Chatters’s participation. The judge resolved the impasse with another order on June 12.

“Both Dr. Owsley and Dr. Chatters may participate in the evaluation of the condition of curation,” Jelderks ordered. He also ordered that a complete inventory of Kennewick Man’s bones be conducted prior to the skeleton’s being transferred from Battelle to the Burke Museum in Seattle. The judge said that if both sides agreed, the inventory could take place simultaneously with Owsley’s inspection of Kennewick Man. He said that if the government refused to have the inventory done while Owlsey was there, the plaintiffs had the right to send two representatives to be present when the inventory was conducted.