J.R. TYBOR, PERJURY CASE GOES TO DOGS AFTER SHADOW CAST ON WITNESS

The National Law Journal, Sept. 14, 1980, p.4

CHICAGO--Government attorneys would do better to quit star-gazing and talk to the animals, according to a recent appellate opinion here.

After listening to what one clerk said was some of the most "entertaining" oral argument it ever heard, the 7th U.S. Circuit Court of Appeals reversed a perjury conviction based on the expert testimony of an astronomer. The forensic skywatcher attempted to determine the date of a family photo by measuring the angle of shadow cast by a pet dog named Jerry.

The case stemmed from the purchase with a phony $5 bill of what the court described as "two so-called Burger King 'Whoppers' " on Mothers' Day, May 12, 1974.

Stanley Tranowski was convicted of passing the phony bill and sentenced to six years in prison.

At Stanley's trial, however, Walter Tranowski, his brother, testified that he was in the defendant's presence for much of the day in question and insisted that Stanley couldn't have committed the crime.

To support his testimony, Walter produced at trial a family photo he said was taken in his mother's backyard between 2 p.m. and 3 p.m. that day--not long before Stanley was alleged to have bought the burgers with the funny money. It showed Stanley, their mother, Cecilia Kniebusch, and Jerry the dog.

The jury rejected Stanley's alibi defense, however, and found him guilty on Dec. 16, 1977.

Then Walter was indicted for perjury on June 29, 1979.

At the perjury trial, the government's key witness was an astronomer, Larry Ciupik, of the Adler Planetarium here. He said he measured from an enlargement of the photo the shadows cast by the dog and by the chimney at the rear of the house and made mathematical and astronomical calculations using a sun chart that ordinarily is used to measure "lunar mountains."

Based on these calculations, Mr. Ciupik testified that the photo could only have been taken on the morning of one of two days--April 13 or Aug. 31, 1974.

In an opinion written by Senior Judge John R. Bartels of the Eastern District of New York, who was sitting by designation, the majority decision described Mr. Ciupik's testimony as "a novel application of untested mathematical and astronomical theories" and said that the "trial court should not be used as a testing ground for theories supported neither by prior control experiments nor by calculations with [necessary] indicia of reliability." U.S. v. Tranowski, 80-1413.

It reversed Walter's perjury conviction outright without remand for a new trial.


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