Friday, December 6, 2013
Good evening:
Our lives continue to be an adventure. I was too busy to post a new article yesterday because my motorcycle engine inexplicably stopped running a couple of miles from home. I managed rather nicely to bale out into a nearby church parking lot and safely bring it to a stop and that is where it shall remain until last night’s ice storm and today’s blizzard end and the roads are cleared.
I spent most of yesterday trouble-shooting the problem and trying to get it started. Have plenty of gas and the battery is in good shape. High and low beams, turn signals and brake light are fine, but nothing happens when I push the ignition button. Electrical wires all appear to be in good shape and properly connected. Oil and anti-freeze are OK.
Just before the engine stopped, I noticed that the kickstand was not fully raised, so I attempted to raise it with the back of my left foot. When I did that, the engine stopped. As a safety precaution, the ignition will not work when the kickstand is down, unless the engine is in neutral. There is no reason I can think of to explain why raising the kickstand would kill the engine.
Would appreciate any advice regarding how to get the motorcycle started. If I can’t do it, I am going to have to have it towed to the repair shop.
Meanwhile the cupboard was bare and the closest grocery store is a 4 mile round trip by foot.
We could use a sled and a team of husky dogs.
Can you say, “Mush?”
And now, we return you to your regularly scheduled program.
I am going to discuss two related issues that have come up in the Kelly Thomas case: cause of death and gruesome photographs.
The defense claim that Kelly Thomas died because of a weak heart is one of the most ridiculous arguments I have heard in a long time, given the videotape of the police beating and the injuries they inflicted.
As most of you know, the prosecution has to prove that the cause of death was unlawful, that is, that his death resulted from the unlawful conduct of another person or persons, as opposed to a suicide or the result of natural causes.
According to Adolfo Flores of the LA Times,
Aruna Singhania, an Orange County coroner’s office pathologist, testified that Thomas died of brain damage from lack of oxygen caused by chest compression and injuries to his face.
Singhania said that after examining Thomas’ body she couldn’t determine the cause of death but reached a conclusion about three months later after conducting a toxicology report, a microscopic review and watching the video of the 2011 beating.
John Barnett, Ramos’ attorney, pressed the pathologist, saying her testimony was inconsistent with the preliminary hearing when she pointed to a single moment in the beating as the cause of death.
[Note that this is a good example of impeachment by prior inconsistent statement where the witness is accorded an opportunity to explain why the statements are inconsistent. Her explanation follows.]
Singhania said she had been misled in the preliminary hearing questioning and that there was not a single instance of compression during that struggle that caused Thomas’ death. He lost his ability to breathe as the beating progressed, she said.
“It’s a constellation of injuries, not one single injury,” Singhania responded.
At one point Barnett asked her if the compression occurred when Thomas was screaming for his father to help him and Ramos was holding his feet.
“I’m going to correct myself,” Singhania said, referring again to her preliminary testimony. “Compression occurred but the intensity is not there, there’s no one-time compression … you never asked about the intensity.”
During opening statements in the trial Monday, defense attorneys said Thomas died because he had a bad heart due to prior drug use, not from injuries suffered in the struggle.
At times Barnett’s cross examination became heated.
“But you determined a discrete event on the video which showed compression, which you cited as the cause of death right?” Barnett asked Singhania.
“Again, this has gotten misinterpreted,” Singhania said.
“You know this is a problem for the case don’t you?” Barnett responded.
The cross examination from Barnett and Michael Schwartz, who is representing Cicinelli, lasted nearly three hours.
Details are important, as you know from our review of the forensic evidence in Trayvon Martin’s case regarding the position of the gun when Zimmerman fired the fatal shot, the trajectory of the bullet after it entered the body, and the misalignment of the two holes in the sweatshirts with the fatal wound. Neither side mentioned the misalignment or gave any indication that they were aware of its significance; namely, that Zimmerman was restraining Trayvon preventing him from getting away by gripping both of his sweatshirts with his left hand when he fired the fatal shot with his right hand.
The embarrassing war between the prosecution and defense pathologists regarding cause of death in the Kendrick Johnson case also serves well to emphasize the importance of attention to detail and documenting what you see.
Use of photographs to document an event or injury and preserve its appearance for review at a later time has been a standard operating procedure in forensics for more than a century. Not all photographs are admissible, however. For example, where there are duplicative photos, only one will be admitted.
When photographs display gruesome or horrific injuries, prosecutors and defense counsel often will disagree regarding their admissibility. Due to the shock value of gruesome photographs, prosecutors figure more is better while defense counsel figure that less is best.
Not surprisingly, a judge’s decision regarding admissibility will be dictated by the issues in the case. In other words, a gruesome photograph will be admitted, if it has probative value regarding an element of a crime charged or disputed issue in the case. For example, a gory close-up of an entry or exit wound in a gunshot death case would be admissible because it would help an expert to form an evidence-based opinion regarding the distance between the muzzle of the gun and the entry wound. In turn, that distance would help a jury to determine the circumstances that existed when the fatal shot was fired. Therefore, admissibility of graphic or gruesome photographs will depend on probative value, not gruesomeness.
I believe the weak-heart defense is unlikely to prevail. You take your victims as you find them. The prosecution does not have to prove intent to kill. Given the nature and extent of the beating that was preserved on videotape, regardless of the condition of his heart, I do not believe there is any doubt that the beating resulted in Kelly Thomas’s death.
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Fred and Rachel
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Frederick Leatherman Law Blog 