J Mc is undergoing cross.  Doing well.  JHB is attacking her with collateral issues.  But they are messy.  And mess is always good for the defense.  Distracts. Confuses.  Brief redirect.  Jury questions.  There are too many of them.  Some of them are pointed.  I don’t like them as a whole. JHB is elated.  Saying: I agree to all of them with a flourish. 

 The seesaw of doubt is ever present in trial.  My innards flow depending on how everything is tilting.  Sometimes perhaps I make it up in my mind.  But I’ve done enough trials to know to trust my innards.  They feel even when I don’t want them to.  Squelch the feeling.

The jury questions are asked.  I don’t have followup.  But JHB does.  And this is where he makes one of his worst mistakes in the trial.  As soon as it is out of his mouth you can tell he wants to swallow it back.  He is smelling blood and thinks he can score a point about the FBI.

Now first of all – why would he want to talk about the FBI at the end of the case.  But he does.  And he hands over an exhibit already entered – a blood analysis report.  Have you seen this.  What is it.  He is laying the foundation.  Not watching where he’s going.  And then he asks her why the FBI hasn’t arrested TN.

Okay.  Now think about that.  He’s eliciting hearsay.  Walking towards a goal but missing all the warning flags.    J Mc says in her typically poised manner: the investigation is still open.  And then instead of shutting the whole thing down he asks her another question.  Which I’ve forgotten exactly what it was, but it elicits the answer that the Belize Police have submitted all the paperwork needed for extradition.    She absolutely creams him flat.  At which point he is looking to Judge Kn for help and the judge just shakes his head because there’s nothing to do.  JHB walked into this all on his own.  I follow up asking when the last time is that she talked to the Belize police – 6 months.   Which isn’t very long ago when you consider this has all been going on for 8 years.

Plaintiff rests.

We are near the lunch break.  JHB tells us that Kay Sweeney their forensic expert is ready to go.  Furhad pulls out the brief Andrew wrote to strike Sweeney’s testimony because all he does is say our expert shouldn’t have rendered an opinion due to the insufficient physical evidence.  As we are packing up, JHB says in response that he hasn’t read the brief yet but his expert has since reviewed additional evidence and has more opinions.

Hold the fort.

What the heck.

I say:  your honor this is the first we have heard of any new opinions or that the expert has reviewed more material.  Judge K tells JHB to tell me what the new evidence is during lunch hour.

He doesn’t.

Meanwhile, tell Furhad to get a brief from the office on striking due to late disclosed expert opinions.  He emails and the office sends a brief.  He puts it on pleading paper and after break hands it out.  It is a jaw drop moment at least for me.  I’ve had late expert disclosures.  Even a few times had to take a deposition on the courthouse steps.  But never have I had a defense lawyer drop new opinions after I’ve rested the plaintiff case in chief.

Furhad argues.  I explain the discovery process.  JHB has no excuse.  He just didn’t tell us.  At one point sheepishly saying that Mr. Siderius who used to be his co-counsel used to do all that civil stuff and he just didn’t realize.  It wasn’t intentional.  His main argument is that if we had taken his deposition then the expert would have prepared for the deposition and done this extra work and we would have known.

Judge K is pretty upset because it is a heavy decision to make.  Goes out and gets the practice manual.  And lays it out – this is a major discovery violation.  There is no cure.  The prejudice is enormous.  And he strikes Sweeney’s opinions that are not set forth in his report.  This is the second giant flub that JHB has made – way worse than the one with J Mc.  Because this expert apparently was going to say that in his opinion to a scientific certainty – Mr. Mc committed suicide.

There is one thing now that I absolutely cannot do.  I cannot open the door.  During cross I cannot ask any question which might used by the witness as a way to get in these new opinions.

JHB’s exam moves forward and twice I have to object because he tries to get the expert to put in one of these new opinions.  Each time Judge K closes him down before damage has been done.  It is a less than stellar presentation.  He picks holes at our expert.  But there is no grand pronouncement.  The expert’s testimony is a shadow of what JHB had hoped for.

Next comes the shortest cross I have ever done of an expert witness.  Less than 2 minutes total.

1.         the obligatory how much were you paid.

2.         did you only review 7 photographs.  The answer is yes.  This is mind boggling.  Our expert spent 15 minutes talking about everything that he reviewed.  Over 100 photographs.  I had gone through all the interviews and statements on the record even though my request for admitting each of them was denied. 

Expert says:  I didn’t know that the entire police report was available.  No one told me.

Mic drop.

The jury – clearly unimpressed with my short cross asks a lot of questions.  Too many for me to write down.  I object to several which could have opened the door to eliciting his new opinions.  The first one is my favorite.  JHB had asked him to show the jury how the gun could have been held had Mr. Mc done so himself and he held it straight when we all knew that you had to dip it down so that the bullet would go near the top of the head.  If it had been held straight the bullet would have exited directly through the other side.

·       Why did you hold the gun level at your head when demonstrating.  Answer: it is more comfortable, it would be difficult me to hold it otherwise.

·       Is it possible for the cyanosis to TMc’s head to be caused by someone else.  Answer: No.

·       You said gases, a bullet, gunpowder and smoke are ejected from a gun. Does a gun have to be in direct contact with the skin to leave a burn mark.  Answer:  No.  It could be an inch or inches away.

·       It was raining the day:  could that distort the blood flow to his head.  Answer:  it would have an impact spots . not blood flow

·       Could blowout from the L side of the head end up on the back side of the clothes:  Answer It depends on how the neck is swiveled at time of discharge. 

·       Did the autopsy report indicate any blow back material.  Answer: none was reported and none was photographed that I am aware of.

·       Can a body part show both blanching and lividity and did you see evidence of that:  Answer: yes.

·       You mentioned you did not review all the evidence.  Is it in your experience as a forensic scientist that you can give an opinion if you did not do so.  Answer:  it may effect it …

 It is exactly 4:30.  Dash back to the hotel.  We will finish tomorrow.

Photo: sunset run