A few weeks ago, I had the opportunity to attend a Daubert Hearing in a death penalty case. Before I explain what a Daubert Hearing is, I want to explain a little bit about the background of this case. A father was charged in the death of his 3-month old son and has been in custody awaiting trial for 8 years. He was charged with 1st-degree murder - both premeditated and felony-murder. The State filed aggravators in order to make the case death penalty eligible.
A Daubert Hearing is basically a hearing where both sides put on testimony and evidence in order to qualify a witness to testify as an "expert." Why does anyone care whether someone can testify as an expert or not? Well, that's a good question.
An expert can testify about more than just facts. They can offer their opinions if their testimony meets certain criteria:
(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.
So in the case at hand, this was a Daubert Hearing to determine whether the Medical Examiner who performed the autopsy on the deceased could offer his expert opinion as to the cause and manner of death.
The State bears the burden of proving the above factors. After about three hours of direct examination of the Medical Examiner by the State, Defense Counsel Micheal Terribile cross-examined the Medical Examiner for part of the morning and an entire afternoon.
The Medical Examiner would testify that the cause of death was Violent Homicide, or more specifically, child abuse. The mechanism of death he would testify was physiological stress caused by the fractures, not the alleged child abuse trauma itself. Terribile asked him about what he looked at and considered in reaching his opinion. Not much, as it turns out. Just the body of the 3-month old deceased.
He didn't read any police reports, talk to any family members or witnesses, or visit the alleged crime scene where the child had died.
The child had around 40 bone fractures at various stages of healing all over his body. What was peculiar about this though, was that he had no external signs of trauma: no bruises, no cuts, scratches, lacerations... nothing. And at only three months of age, with recently healing fractures, there wouldn't have been much time for any such signs of external trauma to heal.
Terribile set out in his cross-examination of the doctor to expose all of things the doctor didn't do but should have and all of the things the doctor should have looked into, tested for, or considered, but didn't. This consisted mostly of bone diseases such as Osteogenesis Imperfecta and Ricket's. No tests were run to determine whether the infant suffered from these disorders. The bone diseases and disorders discussed would all explain the extensive fractures without any signs of external trauma.
Terribile also asked the doctor about the infant's birth. The doctor admitted some of the fractures could be from a traumatic birth in other cases, but in this case, the birth records indicated this was a normal non-traumatic birth. The doctor noted that if, for instance, the birth records indicated something had happened during birth called Shoulder Dystocea, he would attribute multiple fractures to that and would likely change his opinion about the cause of death being homicidal violence.
At about 4:30pm, the judge was growing weary of Terribile's questions and told him he had 30 minutes to wrap it up. She indicated she had already made up her mind and that the expert would be permitted to testify to his opinion on cause of death. It was then that Terribile revealed to the Medical Examiner that the defense team had obtained at least 50 more pages of the mother's birth records, in addition to the 30 pages disclosed by the State to the defense and provided to the doctor.
In these 50 pages contains proof that the birth of this now deceased infant was not normal by any means. In fact, they showed that the birth was a traumatic one. The mother was administered several drugs. The umbilical cord was wrapped around the baby's body and neck. Most importantly, these records document that the birth involved the same shoulder dystocea that the doctor had earlier testified would cause him to reconsider the cause of death.
The doctor looked like the wind had been knocked out of him. So did the judge and the State. The doctor, when confronted with the existence of these records, testified under oath that he would like to revisit the cause of death and was no longer confident in his previous opinion on the cause of death being homicidal violence.
The judge dismissed the case for the day and instructed all parties to reconvene the next morning. The next morning, the judge made a long and clearly well-thought out statement about what had happened the previous afternoon and what it meant for the case. She stated that she had been up all night reading case law and thinking about the situation. She said that as far as she was concerned, the entire case had to be put on hold pending the doctor's reevaluation of the cause of death.
When this hearing started and progressed through the first half of the day, it was clear to everyone that the judge was convinced, the State was convinced, and the medical examiner was convinced that this hearing was a waste of time because it was terribly obvious that the defendant killed his infant son. By the next morning, the judge, the medical examiner, and the State were all visibly humbled that they had been so convinced this man deserved to potentially die for killing his son and had been presented with evidence that made it very very possible and, frankly, likely, that this was a completely innocent man.
When I began writing this blog post, I'm not sure what my point would be. That we need good defense attorneys to fight for people who society has already judged and condemned in their minds? That jumping to the most logical conclusion based on the existing evidence can take away eight years of a man's life, maybe for nothing? That it makes complete sense that 4 Americans are exonerated from prison every week for crimes they did not commit? Take from this what you will, but I hope that no matter what conclusions you draw, it opens your mind to the possibility that someone charged with a crime, any crime, and especially such a serious crime as this, could be innocent.